The International Human Rights Framework on the Right of Peaceful Assembly
Myanmar is not a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR), Article 21 of which governs the right of peaceful assembly.
The right of peaceful assembly is, though, a fundamental human right that is part of the corpus of customary international law. It is also a general principle of law.
There is not yet a regional human rights treaty to which South-East Asian nations can adhere, although a non-binding human rights declaration was issued by the Association of South-East Asian Nations (ASEAN) in 2013. Paragraph 24 of the ASEAN Human Rights Declaration provides that: "Every person has the right to freedom of peaceful assembly." Myanmar is a member of ASEAN.
The Domestic Legal Framework on the Right of Peaceful Assembly
The 2008 Constitution of the Republic of the Union of Myanmar provides that every citizen "shall be at liberty in the exercise" of the right to assemble peacefully without arms, "if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality".Art. 354(b), 2008 Constitution of the Republic of the Union of Myanmar.
The 2011 Peaceful Assembly and Peaceful Procession Law, as revised most recently in 2016, is the primary legislation governing assemblies in Myanmar. Although only notification 48 hours in advance is required under the revised law, de facto this is considered as an authorisation regime.
Deviation from any of the rules laid down in the 2016 Law renders the assembly liable to dispersal.
A detailed analysis of the 2016 Law has been conducted by Article 19.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Chapter IX of the 1898 Code of Criminal Procedure (Section 128) allows a senior police officer to disperse an unlawful assembly "by force” if it does not disperse upon command. Under Section 16 of the 2016 Peaceful Assembly Law, any dispersal must be "monitored" for excessive use of force.
Chapter V of the Code of Criminal Procedure governs the use of force during arrest. Section 46(2) allows a police officer to "use all means necessary to effect the arrest". It is stipulated that this does not prohibit use of force that causes serious harm or injury short of death.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
The law does not restrict the use of firearms as international law requires.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
Myanmar is not a state party to the ICCPR.
In the 2015 Universal Periodic Review by the Human Rights Council, it was recommended that Myanmar enforce a code of conduct for law enforcement officials, particularly with regard to crowd control and the use of force by the police. It was also recommended that the Myanmar government ensure that the domestic legal framework contains effective provisions for the oversight and accountability of law enforcement officials.Human Rights Council, "Compilation prepared by the Office of the United Nations High Commissioner for Human Rights – Myanmar", August 2015, para. 30.
Views of Civil Society
According to Freedom House's 2019 report on Myanmar:
Under the Peaceful Assembly and Peaceful Procession Law as revised in 2016, unauthorized demonstrations are still punishable with up to six months in prison; a variety of other vaguely defined violations can draw lesser penalties. Protesters no longer have to ask permission for assemblies, but they do need to notify authorities 48 hours in advance, and local officials often treat this process as a request for permission in practice. Additional problematic amendments to the law were under consideration in 2018. Separately, a blanket ban on protests in 11 townships of central Yangon has been in place since November 2017, though it is selectively enforced.
Among other cases during the year, the authorities arrested 47 antiwar protesters across the country in May 2018, charging them with offenses such as disturbing the public, staging an unlawful protest, and criminal defamation. The peaceful demonstrations were held to protest the conduct of military operations in Kachin State.
In a 2020 report on students' right of assembly in Myanmar, Fortify Rights documents how activists, students, journalists, and others in Myanmar continue to face imprisonment or threats of detention for exercising their rights to freedom of expression and peaceful assembly. The report describes how the government has used the Peaceful Assembly and Peaceful Procession Law to impose reprisals on and attempt to silence human rights defenders and activists.