Myanmar: Section 18 contradicts the 2008 Constitution say activists

Activists, former political prisoners and lawyers have called for a review of controversial laws which restrict freedom of association and peaceful procession.

Section 18 of the Peaceful Assembly and Procession Law and Section 505 (b) of the Penal Code have been criticised for undermining the 2008 Constitution.

They also criticised the use of ankle shackles when transferring prisoners to court or hospital as violations of human rights and Section 44 of the 2008 Constitution, which prohibits penalties that violate human dignity.

Section 354 of the Constitution allows the citizens “to express and publish freely their convictions and opinions” and “to assemble peacefully without arms and holding procession” if they do not “breach the laws that are enacted for Union security, prevalence of law and order, community peace and tranquillity or public order and morality.”

However, regulations relating to the right to peaceful assembly and procession state that protestors must apply for permission at least 21 days in advance to the authorities. Protestors said there were many cases where they were not able to receive the permission from the township administrators.

According to Section 18 of the Peaceful Assembly and Procession Law, a person who conducted a peaceful assembly without permission can “receive a maximum sentence of one year imprisonment or a maximum fine of thirty-thousand kyats or both.”

Thura Aung Ko, chairman of the Lower House’s Legislative and Judicial Affairs Committee, has agreed to discuss the bill to amend the Peaceful Assembly and Procession Law. Despite this, six political activists – including D Nyein Lin – were sentenced to one month imprisonment under Section 18 for protesting against the controversial Letpadaungtaung copper mine project.

Bo Kyi, joint secretary of the Assistance Association for Political Prisoners (AAPP), said that the use of this law represents a U-turn in the governments promises to release all political prisoners. In other countries, the citizens are only required to notify the authorities on the day they are going to protest and do not have to submit for permission, he added.

“We have already stated clearly that we do not accept Section 18,” said Myint Aung, one of the lawyers for AAPP. “The constitution is the highest law in a country. The 2008 Constitution already includes freedom of assembly, freedom of expression, and freedom to form organisations. The Constitution they have drafted becomes confined due to Section 18.”

Htin Linn Oo, who has been writing articles about the constitution, also said:

“Section 18 of the Peaceful Assembly and Procession Law and Section 505 (b) of the Penal Code contradict the 2008 Constitution. There is no limitation on freedom of expression, publication, and assembly. For example, I write an article. You can sue me if my writings include personal attacks. But you can’t try to restrict me in advance by saying ‘don’t write like this, don’t say like that’.”

Tun Tun Hein from the National League for Democracy’s law consultancy group told the Daily Eleven that a law which contradicts the Constitution should automatically be dissolved. But since it continues to exist, it needs to be reviewed.

The public have also criticised the use of ankle shackles when taking prisoners to a court hearing. This tradition started several decades ago when the country was ruled by a military junta led by the Burma Socialist Programme Party. At that time, the Minister of Internal Affairs Bo Ni issued an order to force prisoners to wear anklet shackles when they are leaving the prison. This order continues to exist in the present era even though former political prisoners and lawyers have criticised it for contradicting Section 44 of the Constitution, which defends human dignity.

Former political prisoner, Than Tin recalled the difficulties he went through when he had to wear ankle shackles while receiving medical treatment at a hospital.

“I was taken to the hospital after I had gastric perforation but I had to wear ankle shackles. I couldn’t go to the bathroom. I couldn’t turn sideways. The policeman who was guarding me did not come inside the room. He only waited outside. If I wanted to do something, I had to call him. As you know, they don’t want to do anything unless they get paid. As I was wearing the ankle shackle, I couldn’t turn sideways. I could only lie on my back. I had to call him to ask him to turn my body sideways and then I had to pay him,” said Than Tin.

“I feel sad to see him with the ankle shackle. This kind of act is a violation of human rights,” D Nyein Lin’s mother, Htay Htay Win told Eleven Media.

“They shouldn’t do this. Political prisoners don’t run away even if you tell them to run away. His grandfather, father, and uncles were all political prisoners. They have spent many years in prison.”

Former political prisoner Toe Kyaw Hlaing also said the use of ankle shackles is a violation of human rights and taking prisoners to court after shackling their ankles also seems to violate the Universal Declaration of Human Rights.

“I have been criticising the use of ankle shackles since 2008,” said Lower House MP Thein Nyunt.

“We need to review whether or not the guidelines mentioned in the prison manual matches with Section 44 of the Constitution. This is only my opinion. In order to do this, we need to amend the prison law in line with the 21st century. Actually, only the disorderly people should be made to wear ankle shackles,” he added.

Human rights activists questioned why the government is still using the ankle shackles on prisoners as Myanmar is still undergoing a democratic transition. The act can lead to dismissive views and discrimination among the public and causes mental suffering to the prisoners.

AAPP have also questioned the government for issuing a one month imprisonment to D Nyein Lin, who has to sit for his final university exam on December 2. He is one of the former political prisoners who has been denied to continue their education after being sent to prison during the military regime.

He was finally allowed to continue to his education by the Thein Sein administration, but now he has been denied to sit for his exam after being sent back to prison, according to former political prisoner Toe Kyaw Hlaing.

D Nyein Lin’s mother Htay Htay Win said she will submit a letter to the authorities and try her best for her son to be allowed to sit for his exam.

On November 15, President Thein Sein granted amnesty to 69 political prisoners and most of them had been sentenced under Section 18. However, the government continues to imprison other activists under this controversial law.

Many former political prisoners are watching whether President Thein Sein will keep his promise to release all political prisoners by the end of this year.