32 activists facing criminal charges in a months-long government crackdown
(YANGON, January 12, 2021)—Myanmar authorities should immediately release and end criminal proceedings against dozens of student activists facing criminal charges for their involvement in peaceful protest activities, Fortify Rights said today. Today, Aung Myay Thar-Zan Township Court is scheduled to consider criminal complaints against student leader Phone Myint Kyaw, whom police arrested last week. Phone Myint Kyaw is the 21st student activist arrested since September 2020 as part of a months-long crackdown on peaceful anti-war protesters. Police filed criminal complaints against at least 32 students for their participation in a campaign to protest the ongoing war between the Myanmar military and the Arakan Army—an ethnic armed group.
“Phone Myint Kyaw should not be in prison and should be released immediately along with the dozens of other imprisoned student activists,” said Ismail Wolff, Regional Director at Fortify Rights. “The detention of peaceful protesters contravenes the rights to freedom of expression and peaceful assembly.”
On January 5, Aung Myay Thar-Zan Township police in Mandalay Region arrested Phone Myint Kyaw, 22, a member of the Central Executive Committee of the All Burma Federation of Student Unions (ABFSU), a nationwide political student organization. Phone Myint Kyaw faces multiple charges in Aung Myay Thar-Zan, Chan Aye Thar-Zan, and Amarapura townships in Mandalay Region for allegedly violating sections 505(a) and 505(b) of the Myanmar Criminal Code and Section 4 the Peaceful Assembly and Peaceful Procession Law (Peaceful Assembly Law).
Police initially brought a criminal complaint against Phone Myint Kyaw and other students on September 10, 2020, following an anti-war leafletting and poster campaign launched by ABFSU in Mandalay in early September. Phone Myint Kyaw went into hiding after the police filed the complaint against him.
Of the at least 32 activists facing criminal charges for their involvement in the protests in Mandalay and elsewhere across the country in September and October of 2020, the Myanmar authorities have detained 20 and convicted ten activists. At least seven activists are currently in hiding, and arrest warrants are pending against four others.
Phone Myint Kyaw and at least ten other protesters are currently detained in Obo Prison in Mandalay Region. Phone Myint Kyaw earlier reported being beaten by guards in Obo Prison after authorities detained him for more than 80 days for his role in peaceful protests calling for greater security measures for students at Yadanabon University in Mandalay Region in December 2018. Fortify Rights and Athan documented the earlier arrest, detention, and torture of Phone Myint Kyaw and other ABFSU members in the April 2020 joint report entitled, “Our Demands are for All Students:” Violations of Students’ Rights in Mandalay, Myanmar. “I was beaten up by seven guards,” Phone Myint Kyaw told Fortify Rights in 2019. “I was beaten with sticks. They had a special stick that is coiled with a wire—they hit me with it. They punched me in the head. I was kicked.”
The current criminal complaints against Phone Myint Kyaw relate to the distribution of material with slogans saying, “Oppose murderous fascism” and “Dictatorships must fail” and calling for the government to lift mobile-internet restrictions in Rakhine and Chin states.
In October and November of 2020, four courts in Mandalay Region convicted ABFSU Central Executive Committee members Kyaw Thiha Ye Kyaw and Soe Hla Naing of multiple charges under sections 505(a) and 505(b) of the Myanmar Criminal Code and the Peaceful Assembly Law for their role in organizing the anti-war campaigns. The two both face a cumulative sentence of more than seven years’ imprisonment. They also face additional charges before these courts. They are currently detained in Obo Prison in Mandalay Region.
In a joint statement released in November 2020, Fortify Rights, Article 19, and eight other human rights organizations called on the Myanmar authorities to end the crackdown on human rights defenders and peaceful protesters.
Section 505(a) of the Myanmar Criminal Code prohibits anyone who “makes, publishes or circulates any statement, rumor, or report” with the intent or likelihood to cause a member of the military “to mutiny or otherwise disregard his duty.” Section 505(b) similarly prohibits expressions intended or likely to cause “fear or alarm” among the public or induce others to “commit an offense against the State or against the public tranquility.” Punishment under these sections includes up to two years’ imprisonment and/or a fine.
The Peaceful Assembly Law provides a maximum penalty of up to three months in prison and/or a fine of up to 30,000 Myanmar Kyat (about US$23) for failing to give advanced notice to the authorities when organizing an assembly.
International human rights law and Myanmar’s domestic law protect the rights to freedom of expression and peaceful assembly. Article 19 and Article 20(1) of the Universal Declaration of Human Rights, to which Myanmar is a signatory, protects the right to freedom of opinion and expression and the right to peaceful assembly and association, respectively. These rights are also recognized as fundamental rights that states are bound to uphold under customary international law. Under Myanmar’s domestic law, Article 354(b) of the Myanmar Constitution provides for the right “to express and publish freely their convictions and opinions” and “to assemble peacefully without arms and holding procession.”
Under international human rights law, restrictions on the rights to freedom of expression and peaceful assembly are permissible only when provided by law, proportional, and necessary to accomplish a legitimate aim. However, as noted by former U.N. Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association Maina Kiai, “freedom is to be considered the rule and its restriction the exception.”
Moreover, the requirement under Myanmar’s Peaceful Assembly Law that protest organizers notify authorities in advance or face criminal charges is incompatible with international law. The U.N. Human Rights Committee has held that imposing criminal penalties, including fines and imprisonment, for holding a peaceful assembly is incompatible with human rights law.
The Myanmar Parliament should amend or repeal laws used to wrongfully convict and imprison human rights defenders, including the Peaceful Assembly Law, said Fortify Rights.
“State Counselor Suu Kyi and her party have a majority in parliament and could swiftly amend any number of laws to bring them in line with the government’s human rights obligations,” said Ismail Wolff. “The Myanmar government should take this opportunity to release all political prisoners and work to deliver on its promise of human rights.”
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