Repeal of Emergency Provisions Act a positive move towards aligning domestic law with human rights law

(Yangon, October 7, 2016)—The Government of Myanmar should immediately release prisoners convicted under the now-defunct 1950 Emergency Provisions Act and drop charges against those facing trial for alleged violations of the Act, Fortify Rights said today. Myanmar authorities have long used the Emergency Provisions Act to target human rights defenders and minorities as well as stifle basic freedoms. 

On October 4, President Htin Kyaw signed legislation repealing the controversial 1950 Emergency Provisions Act. For years, Myanmar authorities have sentenced individuals, including activists and minorities, up to seven years’ imprisonment for vaguely defined offenses under the Act.

The authorities have recently imprisoned or charged at least 40 Myanmar Muslims under the Emergency Provisions Act for allegedly disrupting “public security” or “morality.”

“This is an important step to bring domestic law into compliance with international law, and we applaud the government for it,” said Matthew Smith, Chief Executive Officer at Fortify Rights. “This government effectively acknowledged the law was used as a tool of oppression. Naturally, the government should urgently review the cases of those who remain imprisoned under the law.”

Spokespersons for the government and ruling National League for Democracy party told Reuters that the repeal of the Emergency Provisions Act is not retroactive and there are no plans to review convictions. 

Fortify Rights has closely monitored several recent trials of Muslim citizens charged under the now defunct Act.

On December 7, 2015 the Aung Myay Thar San Township Court in Mandalay Region convicted 12 Muslim men for allegedly receiving training from a group referred to as the “Myanmar Muslim Army.” The Court sentenced the 12 to five years in prison for violating section 5(J) of the Emergency Provisions Act in addition to other violations.

At trial, the government failed to present evidence of the existence of the Myanmar Muslim Army or the defendants’ connection to the group. On September 17, 2015, defendant Soe Moe Aung, 24, testified in court that the authorities tortured him in detention and forced him to sign a document that he presumed to be a confession. Fortify Rights has reason to believe the authorities tortured other defendants in this case.

In another case monitored by Fortify Rights, the Taunggyi District Court sentenced 20 Muslim defendants on January 12, 2015 to 14 years’ imprisonment with hard labor for violating sections 5(L) and 5(J) of the Act. One defendant—a 15-year-old child at the time of arrest—was sentenced to seven years’ imprisonment.

According to court documents obtained by Fortify Rights in this case, plain-clothed officers from Military Affairs Security (MAS), also known by its Burmese acronym Sa Ya Pa—an intelligence unit reportedly tasked with investigating domestic political affairs—interrogated the defendants in a “special room” in Taunggyi prison. While under MAS custody, the officers allegedly beat defendants and deprived them of food and sleep, according to relatives of the defendants interviewed by Fortify Rights. At trial, the prosecution introduced little evidence and relied on confessions provided by some of the defendants while in detention. An appeal is currently pending before Myanmar’s Supreme Court.

Eight Muslim defendants, ranging in age from 14 to 60 years old, are also currently facing charges under section 5(L) of the Emergency Provisions Act in addition to other charges for allegedly being part of a terrorist plot. The authorities arrested five of them off of a bus at a military checkpoint in Thabeikkyin Township, Mandalay Region on August 5. As in the other cases, the government has failed to provide sufficient evidence to substantiate the charges. The Amarapura Township Court in Mandalay Region has not yet rendered a verdict in these cases.

Section 5(J) of the Emergency Provisions Act criminalized conduct intended “to affect the morality or conduct of the public or a group of people in a way that would undermine the security of the Union or the restoration of law and order.” Section 5(L) criminalized causing or agitating, “directly or indirectly,” violations of the Arms Act, the Explosive Ammunitions Act, or the Explosive Substances Act.

Those convicted under the Emergency Provisions Act and currently in prison are being arbitrarily detained, Fortify Rights said.

The right to liberty is one of the most basic individual rights protected under international law, and Article 9 of the International Covenant on Civil and Political Rights prohibits arbitrary detention. According to the U.N. Working Group on Arbitrary Detention, a detention without a basis in law is considered arbitrary. A detention is also considered arbitrary when it stems from violations of a detainee’s right to a fair trial.

States also have an obligation to protect the human rights of those in detention, including from torture. Torture is defined under international law as “severe pain or suffering, whether physical or mental,” inflicted for specific purposes such as obtaining “information or a confession,” as punishment, as intimidation or coercion, “or for any reason based on discrimination of any kind.”

“There are men, women, and at least one child who remain in prison on spurious charges under a law that’s no longer on the books,” said Matthew Smith. “So long as these individuals are in prison, the law’s legacy of oppression remains. The government has a responsibility to release all prisoners detained arbitrarily.”

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