1. PREFACE

The Tatmadaw, led by Senior General Min Aung Hlaing, initiated the military coup on February 1, 2021 which forcibly seized power from the democratically elected National League for Democracy and pushed Myanmar into the current state of nationwide political instability marked by ongoing impunity for human rights violations and an exacerbating humanitarian crisis. Since then, security forces have been employing extremely violent tactics against the general populace in major cities –– tactics which have been regularly used to persecute ethnic minorities even before the coup, especially in the peripheries of the country.

From the outset, the UN Special Rapporteur on the Situation of Human Rights in Myanmar warned that the atrocities committed by the junta since the coup could amount to crimes against humanity.[1] Some of these atrocities entail the disproportionate use of force against demonstrators and strikers;[2] killings of at least 884 people;[3] arbitrary arrests and enforced disappearances of thousands of people including journalists, activists and others opposed to the coup;[4] raids of homes without warrants to arrest and detain those suspected of being in opposition to the coup;[5] and torture of detainees.[6]

In conjunction with these acts of violence against civilians is the Tatmadaw’s unlawful use of article 419 of the 2008 Constitution to form the State Administration Council (“SAC”) [7] through which it then enacted several amendments to Myanmar’s domestic laws which have encroached upon the fundamental freedoms of the people of Myanmar. Specifically, article 419 permits the Commander-in-Chief of the Defence Services (“Chief of Defence Services”) to form a body to exercise powers of the executive, legislature, and judiciary after the President declares a “state of emergency” (article 417) and transfers all branches of the government to the Chief of Defence Services (article 418).[8] Experts on Myanmar’s Constitution have pointed out, however, that the Tatmadaw’s February 1 declaration of a “state of emergency” under article 417[9] is absent of any legal basis, as it is impossible for allegations of voter fraud during the November 2020 elections ­to amount to a “state of emergency”. According to experts, article 417 relates to a situation in which the sovereignty of the country is threatened through “violent and wrongful forcible means” which involves the use of force.[10] Further, the Tatmadaw’s declaration of a “state of emergency” is unconstitutional as the Constitution only gives the President, who was arrested and detained by the Tatmadaw since February 1, the power to declare a state of emergency.[11] It is manifest that the SAC is an illegal entity and that any powers it exercises (executive, legislative, and judiciary) including the amendments it enacts are invalid under the Constitution.

2. PURPOSE AND SCOPE

The amendments the SAC enacted in the weeks following February 1 also bear adverse consequences for the protection of the fundamental rights of the people of Myanmar under international human rights law. Therefore, this brief examines the legality of some of the amendments in accordance with some of Myanmar’s legal obligations under international human rights law. Taking note that Myanmar is not a state party to some international human rights treaties such as the International Covenant on Civil and Political Rights (“ICCPR”),[12]  this brief also identifies relevant non-binding principles in the Universal Declaration of Human Rights (“UDHR”) and ASEAN Human Rights Declaration (“AHRD”). At the same time, this brief demonstrates the SAC’s attempts to legitimize its human rights violations by using its illegitimate authority to enact invalid amendments to Myanmar’s domestic law to institute a climate of impunity for its human rights violations. Finally, it includes some recommendations on actions that ASEAN, the National Unity Government, and states can take to protect and promote the fundamental rights of the people of Myanmar.

The analysis of this brief is limited in scope. The four amendments examined in this brief, outlined in Section 3 (Overview of Selected Amendments), were selected based on their prominence in the news at the time that the concept of this brief was conceived in early March 2021. Similarly, the scope of analysis in Section 4 (Applicable International Law) and Section 5 (Analysis) is a non-exhaustive account of the relevant international human rights standards applicable to Myanmar. The examined human rights laws and principles focus on night raids, arbitrary arrests and detentions, and restrictions of social media platforms and internet shutdowns as these featured most prominently in the news within the period of February to April 2021 during which the concept of this brief was under discussion. In recent months, more of the SAC’s atrocities have come to light particularly its perpetration of sexual and gender-based violence against girls, women, and members of the LGBTIQ community.[13] In this regard, further research could focus on a gender-analysis of the coup which could, for instance, include some of Myanmar’s relevant human rights treaty obligations such as the Convention on the Elimination of Discrimination against Women.

Ultimately, we hope that this brief would serve as a resource for civil society and community-based organizations to conduct further advocacy and research aimed to raise awareness on the SAC’s use of its illegitimate authority to enact “laws”[14] to encroach on the human rights of the people of Myanmar.

3. OVERVIEW OF SELECTED AMENDMENTS

AC Law No. 3/2021 enacted the Fourth Amendment of the Ward or Village-Tract Administration Law. In particular, the amendment to section 17 requires any person living in a ward or village-tract to inform the ward or village-tract administrator of the arrival and departure of any overnight guests not listed in the family unit and not residing in the same ward or village-tract.[15] Violation of section 17 leads to a “fine not exceeding ten thousand kyat”, or a prison term not exceeding seven days if the person defaults on the fine.[16]

SAC Law No. 4/2021 enacted the Amendment of Law Protecting the Privacy and Security of the Citizens. The SAC suspended rights protected in sections 5, 7, and 8 of the Law Protecting the Privacy and Security of the Citizens.[17] By suspending these provisions, authorities are permitted to enter into homes and private properties without a warrant for purposes of search, seizures, and arrests (section 5); to detain a person without a warrant for more than 24 hours (section 7); to intercept all forms of communications without a warrant (section 8); and to collect and seize all information and data gathered from intercepts (section 8).

SAC Law No. 5/2021 enacted the Law Amending the Penal Code. Amongst other changes to the Penal Code is the amendment of section 505 (a). Section 505 (a) has been broadened to allow authorities to prosecute individuals, inter alia, for causing or intending to cause “fear to a group of citizens or to the public”; for spreading “false news”; or for “affect[ing], hinder[ing], damag[ing] the motivation, discipline [or] health” of a civil servant.[18]

SAC Law No. 7/2021 enacted the Law Amending the Electronic Transactions Law. Relevant to this brief is the inclusion of section 38 in the amendment to the 2004 Electronic Transactions Law (“ETL”).[19]

• Section 38 (b) imposes criminal sanctions on a broad range of conduct regarding the handling of digital information. Specifically, a person (A) could be sanctioned for obtaining, disclosing, using, destroying, modifying, or disseminating any personal data of another person (B) without B’s approval.
• Section 38 (c) imposes criminal sanctions on anyone who creates “misinformation and disinformation” in the digital space with the intent of “causing public panic, loss of trust, or social division.”
• Section 38 (d) imposes criminal sanctions on a broad range of cybercrimes perpetrated with the intent to threaten national sovereignty, national security, and the rule of law, notions which are undefined in the provision. Some of these cybercrimes include preventing unauthorized access into one’s own digital platforms such as networks, computers or digital data (supposedly if a person takes measures to prevent authorities from conducting unlawful surveillance); and attempts to hack into digital platforms.
• Section 38 (e) imposes criminal sanctions on a range of cybercrimes committed with the intent to “deteriorate” Myanmar’s foreign relations with other states. These cybercrimes include vague and unclear language such as “attempts of unauthorized access and hacking cyber sources”.

4. APPLICABLE INTERNATIONAL LAW

A. Prohibition Against Arbitrary or Unlawful Interference with Privacy, Family, Home or Correspondence

Myanmar ratified the Convention on the Rights of the Child (“CRC”) in 1991. Article 16 (1) of the CRC imposes a legal obligation on Myanmar to ensure that “no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honor and reputation.”[20] Further, article 16 (2) also requires Myanmar to enact laws to protect the child from the prohibitions set out in article 16 (1).[21] Finally, Myanmar has a non-derogable obligation to “respect and ensure”[22] these rights under article 16 by making the best interest of the child a primary consideration,[23] through undertaking all appropriate measures including  legislative and  administrative.[24]

Myanmar is also a signatory to the UDHR. Specifically, article 12 provides that “no one shall be subjected to arbitrary interference with [their] privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”[25] In a similar vein, article 21 of the AHRD holds a similar provision to article 12 of the UDHR, even going a step further to explicitly protect personal data from arbitrary interference.[26]

B. Prohibition Against Arbitrary Deprivation of Liberty

Legally binding on Myanmar is customary international law’s absolute prohibition of arbitrary deprivation of liberty, wherein no derogation is permitted under any circumstances.[27] According to the Working Group on Arbitrary Detention, the content of the prohibition under customary international law includes arbitrary arrest and detention of a person which include measures such as house arrest and secret and/or incommunicado detention.[28] Further, an arrest and detention can be considered “arbitrary” even if authorized and enforced by law if  “premised upon an arbitrary piece of legislation or is inherently unjust.”[29]

C. The Right to the Freedom of Expression

Under article 19 of the UDHR, the right to the freedom of expression constitutes the freedom to “seek, receive, and impart information and ideas through any media and regardless of frontiers.”[30] A similar provision can be found in article 23 of the AHRD.[31]

While Myanmar is not a party to the ICCPR, the scope of the freedom of expression under the UDHR may be understood through the Human Rights Committee’s[32] (“HRC”) interpretation of article 19 of the ICCPR, as the ICCPR is a codification of the same protections provided for in the UDHR. The HRC noted that the freedom of expression includes the right to express and receive communications of every form that is capable of transmission.[33] As regards to legitimate restrictions to the right, it may only be restricted for the protection of the rights or reputations of others, of national security or public order, or of public health or morals.[34] Further, restrictions must fulfill three cumulative requirements to be legitimate (also referred to as the three-part test): 1) They must be “provided by law” meaning they have to be formulated with sufficient precision so as to allow individuals to regulate their conduct;[35] 2) be “necessary” for a legitimate purpose;[36] and 3) be “proportionate” to the interest they serve to protect.[37]

5. ANALYSIS

A. The Facilitation of Impunity for Arbitrary Raids, Arrests and Detentions

Part of the SAC’s tactic to stifle dissent in efforts to assert total control over the country has been to arbitrarily arrest and detain people suspected of being in opposition to its rule by encroaching on privacy. Security forces have been arbitrarily arresting and detaining people after finding any shred of evidence considered to be offensive to the junta through arbitrary inspections of mobile phones. Further,  security forces without warrants have been entering into homes and offices to arrest and detain people aligned with the anti-coup movement such as protestors, members of the opposition party, healthcare workers, and lawyers.[38] The SAC has even gone so far as to arbitrarily arrest and detain children. As of March 22, Save The Children alone reported that it had responded to a total of 146 cases of child arrests and detentions, of which 17 are still in detention.[39] Meanwhile, UNICEF reported on March 4 that its partners estimated that since the coup more than “500 children have been arbitrarily detained. Many of those arrested or detained are being held incommunicado.”[40]

To evade arrest and detention by security forces, those aligned with the anti-coup movement including protestors, activists, and members of the Civil Disobedience Movement, have sought refuge in the homes of relatives, friends, and other local residents.[41] Security forces, however, have issued threats against residents warning that they too would be arrested if found harboring those they deem as fugitives.[42] Recent reports indicate that security forces have resorted to arresting and detaining family members and friends of those they sought to arrest but were unable to locate during raids, effectively taking hostages.[43]

Former detainees have reported being tortured by security forces. Accounts of torture include beatings, being placed in stress positions, and even mock burials.[44] Some detainees were even tortured to death.[45] Further, reports indicate that security forces use sexual and gender-based violence as a form of torture.[46] In one account, security forces stripped naked a transgender woman and raped her by penetrating her with a bottle.[47]

These acts of torture, raids, and arbitrary arrests and detentions are accompanied by the SAC’s enactments of the Fourth Amendment of the Ward or Village Tract Administration Law and the Amendment of Law Protecting the Privacy and Security of Citizens. The contents in the provisions suggest that the SAC issued the amendments to enable its security forces to conduct raids as well as to arbitrarily arrest and detain anyone with impunity, as illegitimate as these “laws” may be. At the same time, these amendments contravene Myanmar’s international legal obligations under treaty law protecting children against the arbitrary interference with privacy, family, home or correspondence; and under customary international law protecting against arbitrary arrest and detention. These amendments are also incompatible with the same principles in the AHRD and UDHR.

i. Section 17 of the Fourth Amendment of the Ward or Village-Tract Administration Law violates Myanmar’s obligations under the CRC and are incompatible with the UDHR and AHRD

The SAC’s amendment of section 17 of the Fourth Amendment of the Ward or Village-Tract Administration Law requiring the registration of overnight guests, violates Myanmar’s obligations under article 16 of the CRC. The enforcement of the amended section 17 against children constitutes an “arbitrary interference” of their privacy, family or home under article 16 (1) of the CRC.[48] The Human Rights Committee’s interpretation of the meaning of “arbitrary interference” in article 17 (1) of the ICCPR is relevant to Myanmar’s violation of article 16 since article 16 (1) of the CRC protects the same rights as that of article 17 (1) of the ICCPR,[49] ­ the difference being that article 16 (1) focuses specifically on children. In particular, it states that the meaning of “arbitrary interference” includes laws that counter “the provisions, aims and objectives” of the protections afforded to a person’s privacy, family or home.[50] It follows then that the amended section 17 amounts to an “arbitrary interference” within the meaning of article 16 (1). Further, amended section 17 –– permitting such sweeping and arbitrary encroachment on the prohibition against arbitrary interference with privacy, family, home or correspondence –– contradicts article 16 (2) which guarantees that children have “the right to the protection of the law against such interference.”[51]

Moreover, the amendments are incompatible with the principles enshrined in article 12 of the UDHR, as well as article 21 of the AHRD. Containing a similar provision to article 12 of the UDHR,[52] article 21 of the AHRD states “every person has the right to be free from arbitrary interference with his or her privacy, family, home or correspondence.”[53]

ii. Suspension of sections 5 and 8 of the Law Protecting the Privacy and Security of the Citizens contravenes prohibition against arbitrary interference with the right to privacy, family, home or correspondence

The SAC’s suspension of sections 5 and 8 of the Law Protecting the Privacy and Security of the Citizens[54] contravenes Myanmar’s non-derogable obligations[55] under the CRC to “respect and ensure” rights,[56] including article 16, are applied to every child within its jurisdiction by adopting all appropriate measures; and by placing the best interest of the child as a primary consideration in all matters.[57]

Further, the amendments violate article 16 (1)’s prohibition of arbitrary interference with the child’s “privacy, family, home or correspondence, [and] to unlawful attacks on his or her honor and reputation”,[58] as it permits authorities to interfere, without a warrant, in virtually all aspects of the private lives of any citizen. At the same time, it is incompatible with article 16 (2) as it denies children within its jurisdiction of their right to protection from arbitrary interference with, or attacks on their rights enshrined in article 16 (1).[59]

In a similar vein, the suspension of sections 5 and 8 are inconsistent with the principles in article 12 of the UDHR and article 21 of the AHRD, which declared that every person within its jurisdiction has the right to be free from arbitrary interference with their privacy, home, or correspondence,[60] including personal data.[61]

iii. Suspension of section 7 of the Law Protecting the Privacy and Security of the Citizens contravenes the prohibition against the arbitrary deprivation of liberty under customary international law

The SAC’s suspension of section 7 enables security forces to arbitrarily arrest and indefinitely detain[62] individuals it considers as threats to its rule, including opposition political leaders, anti-coup protestors, and human rights defenders. It breaches Myanmar’s obligations under customary international law prohibiting the arbitrary arrest and detention of any individual and under any circumstances,[63] which includes laws that authorize “automatic and indefinite detention without any standards or review.”[64]  

B. The Infringement on the Enjoyment of the Right to the Freedom of Expression

The digital space has been a platform for the people of Myanmar ­­to organize themselves domestically and to mobilize international support against the coup. Equally, it serves as a medium for journalists, citizen journalists, and other activists to criticize the SAC, as well as to document and expose human rights violations perpetrated by security forces. The SAC’s response, particularly in the early months of the coup, was to restrict access to social media platforms such as Facebook, Twitter, and Instagram, as well as to enforce regular nationwide internet blackouts.[65]

Part of its strategy to stifle dissent has also been through the amendment to section 505 (a) of the Penal Code, as well as the amendment to the ETL. The amended provisions curtail the enjoyment of the right to free expression by criminalizing an array of conduct under, inter alia, dubious pretexts of national security and public order which are incompatible with the standards required to constitute permissible restrictions to the freedom of expression under international human rights standards.

i. Section 505 (a) fails the “necessity” test making it an illegitimate form of restriction to the freedom of expression

The SAC’s use of section 505 (a) to prosecute individuals and to sue news agencies who have reported on the coup and exposed human rights violations[67] is incompatible with legitimate restrictions to the freedom of expression. Under international human rights law, restrictions to free expression must be “necessary” for the protection of the “rights and reputation of others”, or protection of “national security or of public order, or of public health or morals.”[68] Contrary to this standard, the SAC has been regularly prosecuting journalists for reporting on the facts of the coup.[69] Additionally, it has also charged and prosecuted ordinary citizens voicing their opposition to the coup on social media, celebrities supporting anti-coup protests, as well as youths involved with the anti-coup movement.[70]

ii. The ETL amendments fail the “provided by law” and “proportionality” tests to constitute permissible restrictions

Even supposing that the purpose of section 38 (b) is for the protection of privacy, the language is overbroad such that it is incompatible with the principle of proportionality which requires that restrictions be the least intrusive of measures to prevent jeopardizing the exercise of the right to the freedom of expression.[72] Under the amendments, “personal data” is defined as any information associated with a person.[73] In turn, the formulation of the amendment could impose criminal sanctions on anyone who, for instance, discloses or sends information on individuals responsible for human rights violations to international criminal or human rights investigative organizations. Under human rights standards, restrictions to free expression “may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights.”[74]

The vague and undefined terms, “misinformation and disinformation” and “public panic, loss of trust or social division”, are incompatible with the meaning of “law” under human rights standards. Restrictions must be formulated with sufficient precision such that individuals are able to regulate the content that they produce and publish in the digital space.[76] The current formulation would allow authorities “unfettered discretion”[77] in using the law to retaliate against journalists, activists and academics who expose the SAC’s human rights violations.[78]

The provisions in section 38 (d) and section 38 (e) criminalize a wide range of conduct in the digital space by employing justifications of “national sovereignty, security, peace and stability, rule of law, national solidarity”, as well as the protection and preservation of Myanmar’s foreign relations.[81] Chiefly, these imprecise and overbroad exceptions under the pretext of national security are in non-conformity with human rights standards requiring that restrictions be “provided by law”[82] and be “proportionate”.[83] In turn, these “amorphous” notions of national security serve as a weapon for the SAC to curtail the enjoyment of legitimate free expression.[84] For instance, it is unclear what types of conduct section 38 (d) covers when it criminalizes “preventing or making it difficult to access a cyber resource […] or using more than permitted”[85] under the pretext of national security. Free Expression Myanmar has suggested that the provision could be used to prosecute journalists and activists for using a VPN to bypass the SAC’s internet restrictions or for using encryption when working to expose and report on the SAC’s human rights violations.[86]

6. RECOMMENDATIONS

The grim reality is that unless the SAC steps down from power it will continue to perpetrate atrocities against the people of Myanmar and oppress the country with these illegitimate “laws”. This reality signifies the need for relevant actors to stand with the people of Myanmar in their resistance to the SAC. To this end, we have identified measures that ASEAN, the National Unity Government, and states can take to validate the human rights of the people of Myanmar through the international human rights protection regime.

Recommendation to ASEAN:

• In addition to pursuing the Five-Point Consensus,[87] member states in their engagements with the SAC must make the promotion and protection of human rights provided for in the AHRD a central part of their diplomatic efforts. Notwithstanding the non-binding nature of the AHRD, the enshrined principles including those identified here are minimum human rights standards afforded to the people of Myanmar that member states have a stake in promoting and protecting should the AHRD be recognized as a credible regional human rights instrument.

Recommendations to the National Unity Government:  

• Declare that the SAC’s amendments following the events of February 1 are null and void as a matter of domestic law. As an illegal entity under Myanmar’s constitution, the SAC is unauthorized to amend or enact laws. At the same time, the SAC’s “laws” contravene Myanmar’s human rights obligations under treaty law and customary international law.
• Commit to ratifying the outstanding international human rights treaties beginning with the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the Convention for the Protection of All Persons from Enforced Disappearance, and the International Convention on the Elimination of All Forms of Racial Discrimination.
• Commit to ratifying the Rome Statute of the International Criminal Court as a first step to pursuing accountability for past and present alleged international crimes including crimes against humanity, genocide, and war crimes.

Recommendation to states:

• Adhere to the principle of non-refoulement under international law. Meaning that anyone who faces a real risk of being arbitrarily detained, tortured, or murdered by the SAC should not be involuntarily returned, expelled, or extradited to Myanmar.