Jun 25, 2019 | News
Myanmar’s 1982 Citizenship Law, which has fueled widespread discrimination against various ethnic minority groups, is irreconcilable with core rule of law principles and the State’s obligations under international human rights law, the ICJ said today in a briefing paper.
The briefing paper Citizenship Law and Human Rights in Myanmar: Why Law Reform is Urgent and Possible (available in English and Burmese) analyses the legal framework for citizenship in Myanmar, and assesses certain provisions of the 2008 Constitution relevant to citizenship as well as the 1982 Citizenship Law.
This law embedded the current narrow definition of citizenship, which generally links citizenship acquisition to membership of a prescribed “national race.”
The resulting system enables and legitimizes discrimination against various groups, particularly against persons of South Asian or Chinese descent, members of whole ethnic groups, such as the Rohingya, and also the children of single mothers.
“Enacted by unelected military governments, Myanmar’s citizenship laws fuel widespread discrimination throughout the country,” said Sean Bain, Legal Adviser for the ICJ.
“The government must act immediately to dismantle this discriminatory system and to protect in law the human rights of all persons,” he added.
The intentionally discriminatory character of this law, and its equally discriminatory implementation, largely explain why many long-term residents of Myanmar lack a legal identity (more than 25 percent of persons enumerated in the 2014 Census).
The ICJ recommends three immediately achievable, concrete areas of law reform to the Government: 1) legislative reform, including most urgently of the 1982 Citizenship Law and the Child Rights Bill now being considered by the parliament; 2) Constitutional reform, to protect the right of citizens to full political participation; and 3) to institute interim measures to address discrimination on the basis of race or ethnicity.
A review of the 1982 Law was recommended in 2017 by the Government’s advisory commission chaired by the late United Nations Secretary-General Mr Kofi Annan, but the Government has not yet demonstrated any tangible progress on this.
“The government has the means at hand to get rid of this discriminatory system, which has undermined the rule of law and blocked the development of a pluralistic democracy. The government can and must implement the recommendations of its own advisory commission. The pervasiveness of discrimination cannot continue to go unaddressed, and there are no reasonable legal grounds for further delay in initiating pathways to reform,” Bain said.
UN Member States, as well as International Finance Institutions and UN agencies, must also ensure that assistance to the Government of Myanmar enables necessary reforms, and does not, in any way, entrench the existing discriminatory system.
Coinciding with the launch of this report, yesterday the ICJ hosted an event in Yangon where a panel of Myanmar legal scholars and researchers discussed the impact of current legal arrangements for citizenship on human rights, and why law reform is both urgent and possible. Representatives including from diplomatic missions, UN agencies, the Myanmar National Human Rights Commission, a multilateral donor and Non-Government Organizations attended the event.
Background
“Citizenship” is a legal concept describing an individual’s relationship to the State. In contrast, “statelessness” is when somebody does not have citizenship of any State. Terms such as “nationality,” “race” or “ethnicity” are generally culturally embedded concepts, understood differently by different people and in different contexts.
In many countries, particularly those with diverse populations, the right to citizenship is defined broadly to include persons with different ethnicities and even nationalities. In post-independence Myanmar, the concept of being a “national” or “indigenous” had a generally broad definition, allowing persons of different backgrounds to become citizens, including but not limited to the descendants of persons who had immigrated to Myanmar.
The 1982 Citizenship Law embedded in legislation the concept of “national races,” and introduced a hierarchy of citizenship categories that effectively institutes first-class and second-class citizens. Under this system, many life-long residents of Myanmar have effectively been rendered stateless, including members of entire ethnic groups, and children of mixed ancestry.
This discriminatory system has fostered an environment where crimes against humanity have taken place with absolute impunity.
Although section 347 of Myanmar’s 2008 Constitution guarantees “any person to enjoy equal rights” and protections before the law, other constitutional provisions restrict “fundamental rights” to citizens, including the rights to health and to education. Even for citizens, political rights are limited if a parent, child or spouse is not a citizen of Myanmar – the most infamous example of this is Daw Aung San Suu Kyi, who is constitutionally barred from the Presidency because her sons are foreign citizens.
The formation in February of this year of a Constitutional Amendment Committee also presents opportunities to expand the narrow definition of “fundamental rights,” to ensure their compliance with the constitutional guarantee of equality and protection before the law for “any person” (section 347), and with the State’s international human rights law obligations.
The Child Rights Bill, currently under consideration by the parliament, also offers opportunities to ensure that Myanmar’s laws comply with its treaty obligations, for example, under the UN Convention on the Rights of the Child, including with respect to the right of a child to acquire a nationality (citizenship), and the State’s related obligation to prevent statelessness.
See also
ICJ convenes workshop on reforming 1982 Citizenship law
ICJ materials on human rights law in Myanmar
Download
Myanmar-Citizenship law reform-Advocacy-Analysis Brief-2019-ENG (full report in English)
Myanmar-Citizenship law reform-Advocacy-Analysis Brief-2019-BUR (full report in Burmese)
Myanmar-Citizenship law reform-News-web story-2019-BUR (full story in Burmese)
Contact
Sean Bain, ICJ Legal Adviser, sean.bain(a)icj.org
Apr 11, 2019 | Advocacy
Today the ICJ joined twenty organizations in calling for Myanmar’s new Constitutional Amendment Committee to fully protect the right to freedom of expression in the Constitution, in line with international law and standards including Article 19 of the International Covenant on Civil and Political Rights.
The statement reads:
“20 expert organisations urge Myanmar to fully guarantee the internationally protected right to freedom of expression in the Constitution
11 April 2019 — A new parliamentary committee tasked with reviewing Myanmar’s constitution is an opportunity for the government to guarantee the democratic rights to free expression, media freedom, and access to information.
We welcome the government’s creation of the Constitutional Amendment Committee, established to review and propose amendments that will support Myanmar’s transition to democracy.
Myanmar’s 2008 Constitution does not include the guarantees required in a democracy to protect freedom of expression. Those that it does include do not meet relevant international human rights standards. This threatens the transition to and quality of Myanmar’s democracy as can be seen for example in the wide range of laws used to prosecute journalists and human rights defenders.
We call on the Constitutional Amendment Committee to recommend:
- Replacement of the current heavily prescribed guarantee for freedom of expression in Articles 354(a) and 365 with a single article that guarantees the right to freedom of expression in accordance with international standards, so that it fully reflects the requirements of Article 19 of the International Covenant on Civil and Political Rights.
- A new separate article guaranteeing the right to access information held by public authorities.
- A new separate article guaranteeing media freedom, which should prohibit prior censorship of the media or licensing of the print media and individual journalists, and should protect journalism as well as the independence of the Myanmar Press Council, Myanmar Broadcasting Council, and any future public service media.
- Each guarantee should include only those limitations that are provided by law and are necessary for the respect of the rights or reputations of others, or for the protection of national security or of public order, or of public health or morals.
We are committed to supporting Myanmar’s transition to democracy and would be happy to provide further information and guidance as the Committee conducts its review.”
Signed by 20 organizations with the support of 13 other organizations.
Full statement and list of organizations available in English and Burmese here: Myanmar-Joint Statement on FoE and Const Ref-Advocacy-2019-BUR
Mar 7, 2019 | Advocacy, News
The ICJ joined a list of 77 civil society organizations to call on relevant authorities in Myanmar to drop spurious charges against journalist Ko Swe Win, to decriminalize defamation, and to release human rights defenders currently imprisoned under repressive criminal defamation laws.
The statement reads:
On the second anniversary of the defamation charges brought upon Ko Swe Win, editor at online newspaper Myanmar Now, we, the undersigned 77 civil society organisations, call on the relevant authorities to drop the case against him. Spurious defamation charges under Article 66(d) of the Telecommunications Law were filed against him on 7 March 2017 by ultranationalists intent on suppressing free speech. The Government of Myanmar must take concrete steps in parliament to decriminalise defamation, repeal Article 66(d) of the Telecommunications Law and drop the charges and release all activists and human rights defenders currently in prison and being charged under this repressive legislation.
Article 66(d) of the Telecommunications Law of 2013 was amended in 2017, but notably, defamation is still criminalised and carries a punishment of up to two years of imprisonment or a fine of up to one million kyat or both. The law is still frequently used to stifle free speech in Myanmar and silence critics. To date, a reported 173 cases have been filed under Article 66(d) since its enactment.
The UN Human Rights Committee has called on all states to decriminalise defamation, indicating that imprisonment for defamation is a penalty that can never be appropriate or compatible with the right to freedom of expression. In addition, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has stated that defamation should be treated as a matter of civil rather than criminal law, stressing that criminal prosecution for defamation inevitably becomes a mechanism of political censorship, which contradicts freedom of expression and of the press. In the case of Article 66(d), Myanmar law allows for agents of the offended party to file charges for defamation and initiate criminal proceedings on their behalf. In effect, this means that powerful organisations and individuals can operate via proxies to target those that they consider disturbing, a form of judicial harassment with severe implications for the individuals who are accused.
Ko Swe Win was charged with defamation under Article 66(d) of the Telecommunications Law for sharing a story by Myanmar Now on Facebook. The story quoted a senior monk who said that well-known ultranationalist monk U Wirathu’s actions could be cause for him to be expelled from the monkhood as they violated the tenets of Buddhism. U Wirathu, notorious for using Facebook to agitate against Muslims, had previously expressed support for and thanked U Kyi Lin – the recently convicted gunman who shot and killed prominent lawyer U Ko Ni in January 2017. U Ko Ni was an expert on constitutional law and was working to change the military-drafted 2008 Constitution. The plaintiff, a follower of U Wirathu, brought the charges in March 2017 and the court proceedings started in July 2017.
Since then, Ko Swe Win has had to travel regularly to the courthouse in Mandalay, where the charge was filed, from his home in Yangon and back – a distance of over 1,200 kilometres. The court hearings, now totaling 55, have been ongoing for almost two years, but the court has still only heard the plaintiff’s side, which has consistently been stalling the process. On some occasions, Ko Swe Win has travelled from Yangon only to find that the plaintiff or witnesses have failed to appear in court and that the proceedings have been postponed. The plaintiff himself was arrested in August 2017 and has since been detained, which has caused significant delays to the process.
U Wirathu has been summoned twice but failed to appear. On the first occasion, his lawyer informed the court that U Wirathu could not make the hearing because he was attending a donation ceremony. On the second occasion, U Wirathu’s lawyer requested that the hearing be held at his monastery compound. That request was denied by the township court, but U Wirathu appealed to the higher district court, which also denied the request. While the district court considered the request, no hearings could be held in the township court. Ko Swe Win however, was still required to make an appearance every two weeks before the township court judge just to be informed of the next date he was due to appear in court. This procedure, which required him to travel from Yangon to Mandalay, was typically over in a matter of minutes.
The many irregularities of this case highlight the lack of independence of the Myanmar judiciary. It appears that the authorities are determined to target those that are working to expose troubling truths and terrible crimes, rather than those who commit them. Those responsible for spreading dangerous speech and inciting violence face no consequences, while those who criticise such dangerous actions continue to be prosecuted. In a recent parallel case, also fraught with controversies, two Reuters reporters – Wa Lone and Kyaw Soe Oo – were convicted to seven years in prison for exposing a mass killing of Rohingya men and boys carried out by the Myanmar military in northern Rakhine State.
In Myanmar, high-ranking military commanders, some of whom are accused by UN investigators for war crimes, crimes against humanity, and even genocide, remain at large, while journalists who expose the truth and report on human rights violations in the country are charged under repressive laws. This inverted idea of justice needs to come to an end if Myanmar is to continue its path towards democracy.
As long as Article 66(d) remains, people in Myanmar, especially those who criticise powerful individuals, officials and government policies online, will be at risk of being imprisoned for their peaceful exercise of the right to freedom of expression.
In light of the above, we call on the Government of Myanmar and its relevant authorities to:
- Drop the defamation charges under Article 66(d) of the Telecommunications Law against Ko Swe Win and other activists and human rights defenders and release those currently imprisoned under this repressive legislation;
- Repeal Article 66(d) of the Telecommunications Law, or at a very minimum, amend it to ensure that:
- defamation is no longer criminalised by deleting references to “defamation” as well as vague language such as “disturbing”;
- only a government prosecutor can file a criminal complaint under Article 66(d);
- where recognisably criminal acts such as “extortion” and “threats” occur in the law they are clearly and narrowly defined in line with international human rights law, to ensure it is not used to criminalise the peaceful expression of views.
Download
Myanmar-statement on defamation-Advocacy-2019-ENG (full statement in English, PDF)
Myanmar-statement on defamation-Advocacy-2019-BUR (full statement in Burmese, PDF)
Jan 29, 2019 | News
On the second anniversary of the killing of prominent lawyer U Ko Ni, in public view at Yangon International Airport, the ICJ repeats its calls for a thorough and impartial investigation with a view to establish the facts, to deliver justice and to deter the repetition of similar crimes.
“This brazen killing of a prominent democracy advocate demands a rigorous State response to show this type of crime will be fully punished,” said Frederick Rawski, the ICJ’s Director for Asia and the Pacific.
Despite an official investigation and reports of more than 100 court hearings, nobody has been held accountable for U Ko Ni’s death – criminally or otherwise – and the circumstances have not yet been satisfactorily explained.
“Myanmar simply cannot satisfy its international law obligations without conducting an impartial and independent investigation that is free of military influence. Such an investigation is a pre-requisite for conducting an effective prosecution in a fair trial setting,” added Rawski.
U Ko Ni was well known as a vocal advocate for human rights and democratic reform in Myanmar. As an adviser to the National Legal of Democracy party, he was involved in creating the position of State Counselor, which formalized a leadership role for Daw Aung San Suu Kyi, despite a constitutional provision barring her from the Presidency.
At the time of his death, it is understood that U Ko Ni was working on proposals to replace Myanmar’s 2008 Constitution, the source of law underpinning military power.
“A credible justice process is required not only for U Ko Ni and his family, but to demonstrate the State will protect the right to life of all people including democracy advocates,” said Sean Bain, legal adviser for the ICJ.
“A crime of this nature stifles participation in the democratic process and so an effective justice process is imperative to deter its repetition,” Bain added.
Myanmar has a particular obligation to ensure that lawyers and others acting as human rights defenders are protected in carrying out their work.
Any justice process must be timely, effective and shed light on the facts.
The investigation into U Ko Ni’s killing has been beset by obstacles, including the unknown whereabouts of a primary suspect, the incorrect identification of a deceased individual as a suspect and the arrest of a person with the same name, and reported military involvement in the police investigation. Lines of inquiry related to the political motivations for the killing, particularly considering the military links of many suspects, do not appear to have been pursued satisfactorily, nor impartially, given military involvement in the investigation.
Criminal proceedings in Yangon’s Northern District Court, and related proceedings in the Yangon High Court, have been sluggish. Observing lawyers and individuals including from the ICJ have noted multiple instances of admission into evidence of testimony that appears to be irrelevant, failures of key witnesses to appear, and the long drawn out process of court proceedings whereby weeklong delays are common while continuances over successive days are rare.
These issues are emblematic of challenges in Myanmar’s justice system previously identified by the ICJ in which police, prosecutors and courts generally lack the independence and or will to effectively administer justice, particularly in politically sensitive cases.
“Two years is an incredibly long time to get to the position we are in now, and in our experience this highlights broader problems with the administration of justice in Myanmar,” added Bain.
Contact
Frederick Rawski, ICJ Asia Pacific Region Director, e: frederick.rawski(a)icj.org
Sean Bain, ICJ Legal Adviser, e: sean.bain(a)icj.org
Download:
Myanmar-Ko Ni Statement-News-web stories-2019-ENG (full story with background information, PDF)
Myanmar-Ko Ni Statement-News-web stories-2019-BUR (full text in Burmese, PDF)
Read also:
Myanmar: reverse laws and practices that perpetuate military impunity – new ICJ report
Killing of lawyer U Ko Ni must be promptly and impartially investigated
Jul 9, 2018 | News
Today the ICJ called on Myanmar’s prosecutorial authorities to immediately end the prosecution of Reuters journalists Wa Lone and Kyaw Soe Oo.
The two have been subject to prosecution solely for doing their job as journalists and for exposing human rights violations in Rakhine State, including unlawful killings in Inn Dinn Village admitted to by the military.
In Yangon this morning a Northern District Court Judge accepted charges filed under the 1923 Official Secrets Act.
This decision permits ongoing prosecution of the journalists and extends their detention.
“The prosecution has failed to provide credible evidence of any wrongdoing throughout six months of hearings. It is therefore hard to imagine a valid legal rationale for allowing ongoing prosecution of the journalists,” said Mr Sean Bain, legal adviser for the ICJ in Yangon.
Section 253(1) of Myanmar’s Code of Criminal Procedure requires a judge to dismiss charges against accused persons if the evidence presented fails to warrant a conviction.
A motion for charges to be dismissed on this basis, submitted by defense lawyers, was effectively rejected by the decision today.
“Today’s decision raises real concerns about the independence and impartiality of the judiciary and prosecution when confronted with politically sensitive cases,” Bain said.
“The case significantly undermines the government’s stated commitments to reforming and building public confidence in judicial process,” he added.
ICJ legal advisers have monitored the case and were present in Court today. The journalists were first detained on 12 December 2017 and had no access to legal representation for almost two weeks.
“The case is also emblematic of the lack of adherence to fair trial rights in Myanmar,” Bain said.
“Their confinement remains unlawful given an initial period of incommunicado detention without access to lawyers, and other flagrant violations of the fair trial rights guaranteed in the Constitution, statues and international law.”
“Authorities should immediately end criminal proceedings against these men who appear to have been lawfully doing their job as investigative journalists,” he added.
The detention and prosecution of anyone, including journalists, based solely on the collection and publication of evidence relevant to serious human rights violations, is inconsistent with international law and standards on freedom of expression and on human rights defenders.
Article 14 of the 1990 UN Guidelines on the Role of Prosecutors states that prosecutors are obliged to discontinue prosecution when the investigation shows the charges to be unfounded.
Myanmar’s new Code of Ethics for Law Officers, launched in 2017, requires prosecutors to protect rights enshrined in the Constitution and to “provide a proper and fair administration of justice.”
The right to legal counsel is a bedrock rule of law principle that is set out in a range of international human rights laws and standards, including in article 11 of the Universal Declaration of Human Rights. Sections 19 and 375 of the Myanmar Constitution guarantee the right of legal defense, as does Myanmar’s Code of Criminal Procedure (section 340), Courts Manual (section 455(1)), the Police Manual (section 1198c) and the Prisons Act (section 40).
Fair trial rights, freedom of expression, and the right to liberty are also recognised by the Universal Declaration of Human Rights.
Also relevant are the UN Declaration on Human Rights Defenders, and the Global Principles on National Security and the Right to Information (The Tshwane Principles).
Contact:
Sean Bain, ICJ legal adviser, e: sean.bain(a)icj.org
Read also:
ICJ (May 2016), Handbook on Habeas Corpus in Myanmar – English and Burmese
ICJ (December 2017), Reuters Journalists in Myanmar: respect their rights, end their incommunicado detention – English and Burmese
Full text in Burmese (PDF): Myanmar-drop-charges-against-Reuters-journalists-News-Press-releases-2018-BUR
