Posted in Legislative Analysis on Oct 03, 2019

Following a ceremony to mark Kayin Martyr’s Day, three people, including Naw Ohn Hla, were sentenced to 15 days imprisonment for violating Article 20 of Peaceful Assembly and Peaceful Procession Law (PAPP Law).

Kayin Martyr’s Day is a ceremonial day which has been marked for the last 69 years to mourn the death of Saw Ba Oo Gyi on 12th of August 1950. If holding the ceremony is the wish of Kayin people, they have a right to do so.

Reason for suing

Although Naw Ohn Hla submitted a request for permission in accordance with the PAPP Law for Kayin Martyr’s Day, she was sued under Article 20 of PAPP Law due to her reference to “Kayin Martyr’s Day”. Following an interview with the defendants, the media reported that the reference was forbidden on “the instruction from the township-level authorities”.

However, U Zaw Htay, spokesperson for the President’s Office, responded in the media that the reason for legal action was not concerned with reference to Kayin Martyr’s Day, but only due to the failure to abide by the PAPP Law.

The Ethnic Rights Protection Law

In 2015, the Ethnic Rights Protection Law was approved as the Pyidaungsu Hluttaw (Law No.8). Chapter 3 concerns ‘ethnic rights and entitlements’.

Article 4 protects the rights and entitlements of ethnic people provided they do not threaten state security, rule of law and tranquility, or contradict peoples’ ethics and existing laws, and Article 4(d) specifically entitles people to freely hold ceremonies and memorial days in accordance with their culture.

Likewise, Article 4(j) says ethnic people have the right to promote their history and protect their heritage, in accordance with the law.

Article 22 forbids restriction of these ethnic rights and entitlements, without reasonable reasons. If this article is violated, there is provision for punishment.

Can restrictions harm the objective of the law?

The objective of the law is to protect the equal rights of all people from all ethnic backgrounds, and the law clearly incorporates the rights and entitlements of ethnic groups.

Despite these rights and entitlements, there are restrictions to prevent actions intended to enflame ethnic divisions for political purposes, and to prevent the spread of hatred, anger and disunity among ethnic people. Therefore, it seems that right and entitlement prescribed in the law is limited by those restrictions.

Forbidden usage

As noted above, Kayin Martyr’s Day has been an important date for Kayin people for nearly 7 decades. Marking the Day does not harm state security, rule of law or tranquility. In addition, it does not contradict any ethical principles. It is highly questionable why the usage “Kayin Martyr’s Day” is not permitted under the law. Furthermore, it is very directly restricting ethnic rights and entitlements as described in the Ethnic Rights Protection Law of 2015.

Last resort for defending peoples’ rights

The Constitution and other laws include the rights and entitlements of all citizens, regardless of ethnicity. However, if laws and their provisions regarding these rights are in contradiction with each other, rights will be poorly protected. Furthermore, a confusing legal framework for the protection of peoples’ rights also allows authorities to ‘pick and choose’ provisions that suit their purposes, and apply them arbitrarily for political purposes or based on prejudice.

Even though the Naw Ohn Hla case was charged under PAPP Law Article 20, the decision should be examined to understand whether the charge and subsequent sentence is within the provisions for protecting citizens’ rights, as set out in the Constitution and the Ethnic Rights Protection Law. The Constitutional Tribunal has the powers to review this case.

The Constitutional Tribunal has the power to interpret provisions and make determinations on the law. The Constitutional Tribunal Law says that if a case on trial is against the Constitution, the court has to report it to the Chief Justice, who should seek a decision from the Tribunal. In this case, it has been reported that Naw Ohn Hla will appeal to the District Court.

The District Court therefore has an opportunity to report the case to the Chief Justice to seek a ruling on whether the sentence by the PAPP Law is in line with the Ethnic Rights Protection Law and the 2008 Constitution.

The Constitutional Tribunal is a last resort for citizens to protect their rights embedded in the Constitution and rights of ethnic groups in the Ethnic Rights Protection Law. This case presents an opportunity for the judiciary to signal clearly that it upholds the principles of equal rights for all people, before the law.

By Hla Myo Kyaw