Posted in Legislative Research on Feb 19, 2020
Since 1997, when Myanmar signed the international Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) there have been calls for Myanmar to pass necessary legislation to prevent incidents, and protect victims, of gender-based violence. In particular, advocates of women’s rights have called for laws to address domestic violence, given that two-thirds of all violence against women occurs in the home.
No less than 16 years after CEDAW was signed, in 2013 Myanmar produced a National Strategic Plan for the Advancement of Women (NSPAW). In this plan, under Violence Against Women (VAW) is the following objective: “The key objective is to develop and strengthen laws, systems, structures and practices to eliminate all forms of Violence Against Women and Girls and to respond to the needs of women and girls affected by violence”.
Since this strategy was launched, there have been concerted advocacy efforts by civil society to encourage government to pass new legislation, and bring about amendments to existing laws, to better prevent violence (particularly domestic violence) and protect victims.
This draft law has been in development for long-time, with drafting led by the Department for Social Welfare and at various stages informed by inputs from civil society. In any analysis of this Bill, therefore, it would be remiss not to acknowledge the persistence and patience of the women’s rights groups, legal aid groups and women’s support networks who have been advocating for and supporting the development of a VAW Bill for such a long period. Sadly, a 23-year journey from the signing of CEDAW to the arrival of this Bill in the Hluttaw is, for some, symbolic of the lack of urgency this issue attracts and the hold the patriarchy has over our political institutions where political decisions are made.
You can remind yourself about the content of the Bill by taking a look at our Backgrounder and Bill Summary. The analysis below looks at various provisions and offers some limited initial analysis, in part based on our VAW Policy Briefing. Note that these points are not comprehensive, but offer some critical reflections designed to raise awareness about the Bill and encourage further discussion. There are many dedicated specialist women’s rights groups in Myanmar who can offer greater insights.
Lack of transparency about national committee membership
As is the trend with Myanmar legislation, this Bill assigns many duties in the new law to a committee – in this case the Myanmar National Committee for Women (MNCW). The duties of the committee are wide-ranging. However, the Bill does not contain any information about who is to be on the committee, nor how its functions will be adequately resourced.
Part of the reason for this may lie in the fact that the committee already exists, created initially as the Myanmar National Committee for Women’s Affairs (MNCWA) by the President in 2016 and changed to the MNCW in 2018. However, there are inherent weaknesses in the way that this committee is constituted, that this bill ought to have addressed.
For example, government can remove and replace members of the committee by issuing an announcement, without following any specific guidelines on the grounds and process for dismissal. Presuming that the purpose of the committee is to allow government to be guided by impartial expert advice, it should consider whether it will hear honest and impartial views from committee members who feel at risk of being removed without warning.
Secondly, of around 20 members on the committee from 2018, there are 7 seats for civil society. However, 5 of those seats are taken by government-affiliated groups such as Myanmar Women’s Affair Federation and Myanmar Women Entrepreneurs’ Association, leaving only two places for true civil society representatives. This limits the opportunity for the committee to hear from the many women’s groups across the country. In reviewing the Bill, parliamentarians should consider increasing the number of non-government affiliated civil society representatives on the committee; putting in place a clear mechanism for appointing them through an open process, and; specifically reserving space for small community-based organisations such as legal aid firms or victim support groups.
Family integration versus protecting victims
As noted in our policy briefing, one of the challenges of developing and implementing new laws to protect women from violence is that it can bring national governments and legislatures into direct conflict with ‘traditional’ norms or customary practices that marginalize women. For example, victims of violence may be stigmatized; and often perpetrators of horrendous violent crimes may be allowed to continue living freely in the same community as their victim, provided they pay some financial compensation to the victim’s family.
In this regard, one of stated duties of the MNCW – ‘to reduce family separation and communication breakdown, to focus on family integration and social cohesion’ – may not be helpful. Whilst many in Myanmar would agree that family life is important, no one should ever be forced to live in a violent or abusive relationship simply to keep their family together.
It must be recognised, therefore, that prioritising family affairs and social cohesion may often directly contradict what needs to be done to protect a victim. Legislators should consider removing this objective.
Repetitive, overlapping or vague provisions
This law is connected to and overlaps with other important pieces of legislation, most notably the Penal Code and the recently passed Child Rights Law. There is a risk in a number of places that this could mean there are redundant clauses, and/or confusion about which law should be followed. For example:
- The bill stipulates imprisonment for life or 20 years for the rape of child of 12 years or younger. However, this exact provision is also to be found in Article 114 of the Child Rights Law 2019, and Article 376(3) of the Penal Code. It’s inclusion here therefore appears to be repetitive and redundant.
- Currently, abortion in Myanmar is only permitted if the mother’s life is at risk and can only be carried out by licensed doctors in government hospitals. According to the bill, victims may access abortion with the consent of a medical team under the expanded conditions of a threat to life, harm to psychological or physical health, or evidence of rape. However, the bill does not appear to give access to abortion for victims of domestic violence (where there is no evidence of rape). This potentially neglects women who have become pregnant as a result of rape by an intimate partner, but where evidence is lacking; or for women whose pregnancy may have been by consensual sex but where the domestic situation is nonetheless violent and abusive and dangerous for a newborn.
- Another provision in the bill is to outlaw convincing women to have sexual intercourse with a man, on the basis of a promise of marriage, and then reneging on this. This is an outdated concept known as ‘breach of promise’ and has been repealed, or is not an actionable offence, in most jurisdictions. The penalty is 1 to 3 years in prison. Also, If pregnant, civil reliefs can be applied for in court for the cost of nurturing the child, although the provision is vague, non-binding and of questionable enforceability.
Implementing the law
Other than the committee’s role to develop plans and lead education and awareness-raising activities, chief mechanisms for the implementation of the law are through:
- Temporary protective measures – victims themselves or by others who have the permission of the victims or a reason for the absence of permission can apply to the Township Women Committee
- Protective orders – can be applied to the court and decided within 14 days
- Anti-violence fund – subject to the examination of the Union Auditor General
As noted in our policy briefing, even if there is a well-crafted law to protect women from violence and punish perpetrators, law enforcement and the courts must stand ready to implement the law, and women and communities must be aware of their rights. However, many are sceptical about how effective the law can be to change practice at community level, especially in distant rural communities where rule of law may be weak. Once the Bill is passed, government should consider quickly developing any necessary by-laws for the law’s implementation and make significant resources available to inform and educate the police, courts and communities across the country about their enhanced responsibilities.
After such a long wait for this bill, victims of gender-based violence in Myanmar deserve to see some urgency in the implementation of the law.
(Note: The last two paragraphs under the title "Repetitive, overlapping or vague provisions" were updated on 25 February 2020.)