A System without Representation: Legal Rights for Activists in Myanmar

Thet Swe Win (left) and Thinzar Sunlei Yi (right) speaking at the Foreign Correspondents Club in Bangkok, Thailand. Picture from the Foreign Correspondents Club of Thailand video on 2019 06 14 FCCT State of Myanmar, press briefing with activists Thinzar Shunlei Yi and Thet Swe Win.

Picture taken from 2019 06 14 FCCT State of Myanmar, press briefing with activists Thinzar Shunlei Yi and Thet Swe Win,

Article by Kelsey Peden,

On Friday, June 14, 2018, activists Thinzar Shunlei Yi and Thet Swe Win delivered a press briefing on the state of protest in Myanmar. Both activists, who are from the Buddhist Bamar majority population of Myanmar, are leaders in the fight for the rights, protection, and recognition of Burmese Muslims.  As the Rohingya crisis receives increasing national attention, these activists have organized national and international campaigns pushing for the Burmese government to end discriminatory actions against all religious minorities.  Additionally, they call for the end to the atrocities and humanitarian crisis in the Rakhine state.  But Thinzar Shunlei Yi and Thet Swe Win’s plans for the next few months are not as ambitious.  With elections approaching, the activists are worried about their own safety.  Their plan is to lay low; “arrest season” is here.

Little legal protections exist in Myanmar for the activists.  Myanmar has a history of silencing passive protest, reaching a violent peak in 1988, when the military government responded to passive protesting with extreme brutality.  In March, 1988, hundreds of student protestors were killed in the Red Bridge Massacre when the military cornered, opened fire, and drown protestors in the nearby lake. In September, the newly established State Law and Order Restoration Council (SLORC) opened fire on protestors in cities throughout the country. By the end of September, an estimated 3,000 people had been killed. By the end of 1988, more than 10,000 protestors had been killed.  This number is underestimated as many more people were deemed missing.

Many hoped the 2012 elections would spur progressive change for Myanmar, this has not been the case. While violence against protestors has decreased, the government’s active effort to silence their voices has not.  In Myanmar, the right to protest is still not a protected right.  Under the Myanmar Penal Code section 505(a-c), protestors are subject to two years in prison for “intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.” Additional arrests have been made under Myanmar’s “Official Secrets Act,” criminalizing the sharing of any kind of information held by the government, as well as Myanmar’s defamation laws.

Those found in violation of national law can be charged with a crime and are subject to imprisonment.  Notably, those with standing charges against them are banned from running for public office.  As Human Rights Watch reports, the Myanmar government is “not using the law to protect the people but to restrict the people.”

Myanmar currently has 388 political prisoners; 28 people serving their sentences inside the prisons, 142 people facing trial inside prison, and 218 more people face trial outside the prison.  According to Thinzar Shunlei Yi, with the elections approaching the “political prisoner rate keeps growing, and it will be more in the next few months.”  For Thet Swe Win, the Governments motivation for the arrests is clear; “almost all of the activists in Yangon, and the whole country, have the current charges, but that is also one of the strategies for us not to get involved in politics.  We are already tied up by the charges.”

Thinzar Shunlei Yi has one charge against her for protesting.  Thet Swe Win has two.

Moreover, the realities for the arrested activists are dire.  There is almost no accessible legal representation to help activists navigate the complicated charges. “When we get charged, we find it really hard to get even one lawyer.  We don’t have any legal knowledge; it is awkward for us” said Thinzar Shunlei Yi.  Lawyers are hesitant to represent activists, partially for fear of being prosecuted if they do. Even after being released, former prisoners still face discrimination.  They are denied passports, not allowed to continue their studies, and those who were lawyers prior to their arrest often have their registration revoked.

The issue of fair legal representation is two-fold. Even if a lawyer is found, no real human rights mechanism exist that allow activists to fairly fight their charges.  Existing laws are twisted with the intent to punish.  “If the government doesn’t like what you say, they can charge you with any law. If there is no law, they can make a new one and charge you with that.” according to Human Rights Watch.  As Thet Swe Win calmly explained, one activist was forced to drive hundreds of miles every two weeks to attend a 3-minute parole meeting.  Missing the meeting, even by a matter of minutes, would land him back in prison.

However, international attention is slowly being brought to these oppressive laws.  In December 2017, two Reuters reporters, Wa Lone and Kyaw Soe Oo, were sentenced to seven years in prison for violation of the Official Secrets Act.  International and national pressure on the government to release the two reporters resulted in their pardoning more than 500 days after arrest.  However, that type of pressure and political will simply does not exist for most local activists.  Instead, Myanmar rights groups are calling on the government to change these restrictive laws.  As Anna Roberts, executive director of Burma Campaign UK publicly stated; “Aung San Suu Kyi and the NLD” the new progressive government, “have the majority in parliament to repeal all repressive laws, and they should do so. The only reason these … activists are now in prison is that the NLD doesn’t care enough about fundamental human rights to protect them.”

All of this leads activists like Thinzar Shunlei Yi and Thet Swe Win to question their own path forward.  Without available lawyers, human rights laws, or international organizations willing to speak up on their behalf, there is no guarantee what their future will hold.  For activists in Myanmar, there is a quiet understanding that judicial justice is unachievable.  Instead, they protest, risk their safety for the betterment of their nation, and tread lightly during “arrest season.”