Is Myanmar Moving Towards Freedom? An Empirical View on Civil Liberties in Political Transition

by Andy Buschmann, Humboldt-University Berlin1

Paper prepared for ECPR Graduate Student Conference

University of Tartu, Estonia, 10-13 July 2016

Myanmar, formerly Burma, is undergoing a top-down transition (Renaud Egreteau, 2012). Since the

civilian president Thein Sein took office in 2011, several far-reaching reforms have been

implemented. These reforms paved the way for a free and fair general election in late 2015 that

resulted in a landslide victory for the National League for Democracy. Despite the notable changes the

country has witnessed so far, the Tatmadaw, Myanmar’s military force, still has several prerogatives

such as an effective veto power in parliament and leading positions in key ministries. Moreover, inter-

ethnic and religious conflicts have remained unsolved and radical Buddhism is on the rise. These, and

other obstacles to democratization, raise doubts about the (future) state of governance in Myanmar

(e.g., Blazevic, 2016; Bünte, 2011; Cheesman, Farrelly, & Wilson, 2014; Cheesman, Skidmore, &

Wilson, 2012; R. Egreteau, Jagan, & Steinberg, 2013; Huang, 2012; Jones, 2014; Kyaw Yin Hlaing,

2012; South, 2016; Steinberg, 2015; Taylor, 2012).

An assessment of the transition, up to now, cannot answer the question as to whether

Myanmar will ultimately be transformed into a full-scale democracy. Nevertheless, it can shed light on

the question as to whether Myanmar has undergone a liberalization that might trigger further

democratization2. O’Donnell and Schmitter locate the break-through of democratic transitions in

liberalization, which sets in once “[…] more secure guarantees for the rights of individuals and

groups” are provided. These rights would lead to a flourishing of civil society, decreasing the costs for

supporting the opposition on the one hand and increasing the costs for the authoritarian incumbents to

revert to repression on the other (O'Donnell & Schmitter, 1986). Therefore, once an autocracy has

entered liberalization, withholding further democratization would become increasingly difficult,

forcing the regime sooner or later to fall apart and to democratize (Przeworski, 1991, 55). Past

experiences in other autocracies have shown that entering a liberalization process does not necessarily

lead to the establishment of democracy (Carothers, 2002). Instead, countries can be stuck in

liberalization, leading to a form of “liberalized autocracy” (e.g., Brumberg, 2002).

However, liberalization notwithstanding, if it is meaningful, has the potential to lead to

democracy. To be regarded as meaningful, the present study suggests that liberalization must have

opened considerable space for the exercise of civil liberties, including a general decrease in repression.                                                                                                                1  Please  do  contact  me  before  citation.  E-­‐Mail:  andy.buschmann@gmail.com  2 Given the fact that Myanmar’s transition is still ongoing but due to the time proceeded the most in liberalization, the current work concentrates in theory solely on liberalization, recognizing that many processes in liberalization and democratization are overlapping (e.g., Merkel, 1999).

Although liberalization is not directly measurable, the exercise of civil liberties, most provocatively

with staged protest assemblies, can provide a reliable proxy. To have the freedom to stage protest

assemblies requires the granting and protection of the fundamental freedoms of expression,

association, and assembly (e.g., Beetham, 2004; Dahl, 1971; Merkel, 2004; Nord, 2000). Without the

freedom to assemble, protesters could not gather; without the freedom to express, protesters could not

speak out; without the freedom to associate, protesters could not organize. Moreover, these freedoms

are not only crucial in transitions but are also a functional necessity for a democracy.

The present paper will first elaborate the fundamental set of freedoms as a necessary condition

for liberal democracies and examine what impact an exercise of such rights can have on authoritarian

rule. Second, it will develop criteria for meaningful liberalization and point specifically to the

obstacles that might occur in the first stage of transition. Finally, the criteria will be tested against data

collected from protest assemblies, between February 2011 (the inauguration of President Thein Sein)

and December 20143, which have been compiled through a protest event analysis (PEA) from online

newspaper resources.

Fundamental Freedoms in Democracy

The freedom to assemble, associate, and express are not only universal human rights and the

“fundamental set” of civil liberties (Nord, 2000, xiv), they are also a necessary condition for a

functioning democracy. Democracy is government of the people, by the people, and for the people

(President Lincoln, 1863), therefore, the people “[…] have to be free to communicate and associate

with each other, to receive accurate information, and express divergent opinions […]” (Beetham,

2004, 61). In this vein, Robert Dahl defines the democratic principle as “[…] the continuing

responsiveness of the government to the preferences of its citizens, considered as political equals with

unimpaired opportunities” (Dahl, 1971, 1). “Preference” is referred as a “greater liking for one

alternative over another” (Oxford Dictionaries, 2015). Only the secure guarantee and exercise of

fundamental freedoms enables citizens to formulate alternatives and express them to fellow citizens

and to the government (Dahl, 1971, 2). In representative democracies, civil rights complete the vertical

accountability of governments to their citizens by creating and maintaining a public sphere (Habermas,

1989). The public sphere allows a process of deliberation, provides information about the workings of

the government, and, controls the government ‘softly’ but steadily between elections (Merkel, 2004,

40). Politics in authoritarian regimes are characterized neither by accountability nor by a competition

between equally weighted preferences but rather by the will of the ruling incumbents. Therefore,

alternatives expressed by an opposition always have the potential to threaten the existing rule. It is for

this very reason that the exercise of freedoms becomes a key explanatory variable for the beginning of

the transition towards democracy.

                                                                                                               3  This paper will only present findings until December 31, 2014 and is therefore preliminarly. The final version will contain data from February 2011 until the last general election in November 8, 2015.  

The “transition paradigm” (Carothers, 2002) conceptualizes the transition from autocracy to

democracy in three stages: liberalization, democratization, and consolidation (O'Donnell & Schmitter,

1986). The ‘opening up’ of authoritarian rule is located within liberalization and sets in, "when […]

authoritarian incumbents, for whatever reason, […] modify their own rules in the direction of

providing more secure guarantees for the rights of individuals and groups" (O'Donnell & Schmitter,

1986, 6). After more rights have been granted, actors in civil society begin to organize and to oppose

the ruling elite by exercising their right to freedom, for instance, by staging protest assemblies. With

increasing protest activity, the cost of going back to repression increases continuously, while the cost

for supporting public protests decreases at the same time (Przeworski, 1991, 55). As liberalization

advances, the claim for further democratization becomes stronger; a “multiplier effect” sets in,

triggering further democratisation (O'Donnell & Schmitter, 1986, 10).

In particular, this implied automatism, that liberalization will sooner or later force regimes to

democratize, has faced fundamental criticism (Carothers, 2002). Past experiences in other autocracies

have shown that entering a liberalization process does not necessarily lead to the establishment of a

democracy. Instead, countries can, for instance, become stuck in liberalization, leading to a form of

“liberalized autocracy” (e.g., Brumberg, 2002). Therefore, not just any ‘liberalization’ triggers further

democratization. Whether liberalization will finally lead to democracy or not is a priori impossible to

say. But, it is certain that liberalization only has the potential to break the ground for further

democratization if it has opened considerable space for the exercise of civil liberties. Therefore, the

following section aims at developing the criteria and conditions that liberalization has to meet in order

to be meaningful.

What Meaningful Liberalization Needs

In his comparative historical analysis, Philip Alston finds that civil liberties in representative

democracies could not be preserved for long if they were not constitutionally guaranteed (Alston,

1999). Thus, a first pre-condition for liberalization is the ratification of a constitution embracing

freedoms. At any rate, the drafting of a new constitution often precedes (or even initiates) transition, as

was the case in Myanmar. Yet, it is not sufficient to have freedoms formally enshrined in law.

Freedom is a good only because of the value that lies in exercising it (Beetham, 2004; Diamond,

Morlino, & American Political Science Association. Meeting, 2005). Therefore, freedoms have to be

‘exercisable’ by the citizens. In the following section, the de jure establishment of freedoms in

Myanmar will be examined along the new constitution and law reforms regarding protest assemblies.

The subsequent section elaborates criteria for a de facto liberalization that can be proven with protest

data.

De jure: The Legal Perspective on Freedom in Myanmar

The rights to freedom of assembly, association, and expression are protected under international law

as universal human rights. Although Myanmar was among the first UN member states to have adopted

the Universal Declaration of Human Rights in 1948, it has neither signed nor ratified the key treaties

which protect these rights. On the contrary, freedoms were subject to manifold restraints during

decades of military dictatorship under Generals Ne Win and Than Shwe. The State Peace and

Development Council, after the country-wide protests in 1988, abolished all rights to any kind of

gathering, walking, marching, or speeches with more than five people, “regardless of whether the act

is with the intention of creating disturbances or of committing a crime or not” (SLORC, 1988).

Therefore, it came as a surprise when, in 2003, general Khin Nyunt proclaimed the “Roadmap to a

Disciplined Democracy” (The New Light of Myanmar, 2003). The roadmap consisted of seven steps

including, among others, the draft of a new constitution, the transfer of the executive power to an

elected civilian government, and the re-establishment of the Pyithu Hluttaw, the Union Parliament, as

the legislative body. The new so-called ‘2008 constitution’ formally re-established basic freedoms and

was adapted after a referendum in 2010. Article 354 states: “Every citizen shall be at liberty in the

exercise of the following rights [...]: (a) to express and publish freely their convictions and opinions;

(b) to assemble peacefully without arms and holding procession; (c) to form associations and

organisations; (d) to develop their language, literature, the culture they cherish, the religion they

profess, and their customs without prejudice to the relations between one national race and another or

among national races and other faiths” (Republic of the Union of Myanmar, 2008). Indeed, the rights

to freedom of expression, assembly, and association have been constitutionally guaranteed since 2010

but were subject to unclear restrictions in practice.

Up to 2012, the power to decide when a protest assembly was legal had typically been in the

hands of local authorities and was often arbitrary. Therefore, assemblies could only be staged on an

exceptional basis. It was not before July 2012, with the implementation of the Peaceful Assembly and

Peaceful Procession Law (the Pyidaungsu Hluttaw Law No. 15/2011) that attempts were undertaken to

legally define the ‘boundaries’ to freedom of assembly. By law, organisers were requested to apply for

permission five days in advance, which prevented any kind of spontaneous reaction. Charges of

violating the permission requirement or other rules of the Peaceful Assembly and Peaceful Procession

Law carried draconian penalties ranging to up to one year of imprisonment. Even if permission was

granted, the law stated that participants in a protest would face six months of imprisonment if they

were accused of spreading false information in speeches, distributing information that threatened the

state or union, or “[…] doing anything that causes fear, a disturbance or blocks roads, vehicles or the

public” (Human Rights Watch, 2012). The law provided manifold justifications for dispersing

peaceful protests and for detaining protesters. This resulted in new political prisoners despite the

apparent ‘mood of reform’ in Myanmar. The Peaceful Assembly and Peaceful Procession Law was

amended in June 2014. Following the passage of the law, assemblies are now required only to give

prior notice, rather than needing permission, and the maximum sentence for violating the law was

shortened to six months and 30,000 Kyat (Section 18, the Pyidaungsu Hluttaw Law No. 26/2014). The

reform lowered the legal restrictions on protests but did not change the provisions that can still be used

to criminalize peaceful protests.

On 31 May 2016, the Amyotha Hluttaw, Myanmar’s Upper House, approved another reform

bill, the Peaceful Assembly and Peaceful Procession Law (Lwin, 2016). The new bill reduces the legal

punishment by half and shortens the notice requirement in advance of a protest from 5 to 48 hours.

Charges against protesters who are deemed to be in violation of the law will have to be made within

15 days after the event (and only after a rule was breached again after the police had delivered a

warning). Charges will no longer be possible in every township where the protesters are accused of

having violated a law but only in the township where the protest started. After the law comes into

force, some potential tactics, such as the accumulation of charges or the report of an offence months or

years after a protest event was staged, will no longer be possible. The Peaceful Assembly and Peaceful

Procession Law is still not in compliance with international standards, due to the fact that it allows for

the dispersing of a peaceful protest for violations, such as spreading “false information” or assigning

criminal liability for the failure of prior notification. However, it has been continuously amended and

it has achieved improved legal certainty.

Despite the prevailing issues that prevent Myanmar’s laws from reaching international standards, the

new constitution re-established freedoms and restrictions to free assembly have been increasingly

relaxed. Nevertheless, autocracies often adopt originally ‘democratic’ constitutions and laws, whereby

the text is often similar to its democratic counterpart but the actual implementation of civil liberties

strongly diverges. In practice, it is commonplace for constitutionally granted rights to be violated

because they are not meant to be of any constraint on the state and insofar “window dressing”

(Ginsburg & Simpser, 2014, 6). However, not all restrictions on freedoms are per se undemocratic.

International human rights law allows states to impose certain restrictions on the exercise of freedoms

that are necessary for protecting the freedom of others (cf. Article 21, "International Covenant on Civil

and Political Rights," 1966). In every case, restrictions must be the exception rather than the rule.

Autocracies often undercut freedoms with illegitimate “generic modes of subversion”, which violate

international standards and merely serve as “window dressing”. Most typical subversions of freedom

of assembly are undue obstacles to public assembly, such as an unrealistic timescale for notification,

inappropriate locations, and police harassment and intimidation of protesters and journalists.

Moreover, the systematic exclusion of certain groups from rights protection undermines freedom in

practice and violates international standards (Beetham, 2004).

A meaningful liberalization, therefore, consists, not only of legal reforms, but also of

significant improvements in the actual practice of civil rights that requires illegitimate subversions to

have been abolished or at least considerably dismantled.

De facto: How to Assess Freedom in Liberalization

The yardstick for evaluating freedoms and legitimate restrictions is set by international standards, such

as pertain in existing democracies and in international law (Beetham, 2004; Klug, Starmer, & Weir,

2003). Nonetheless, it has to be borne in mind that liberalization, as transition in its whole, is to its

longest time a gradual process towards democratic standards and that it is not its full achievement. An

evaluation of liberalization, therefore, has to recognize not only the establishment of freedom as

determined by international standards but also the move towards these standards. The following

discussion aims at developing criteria for a meaningful liberalization and derives indicators to test

them. As point of departure serve O’Donnell and Schmitter’s further definition of liberalization as

“[…] the process of making effective certain rights to protect both individuals and social groups from

arbitrary or illegal acts committed by the state or third parties.” (O'Donnell & Schmitter, 1986, 7)

Arguably, two conditions are implied in this definition. First, the “effective making”, therefore, the

exercise of rights. Second, the “protection from arbitrary or illegal acts”, therefore, the exercise of

rights without illegitimate restrictions, be they of a formal or an informal nature.

1. The Exercise of Rights: Civil Society and Protest Activity

Effective freedom rights allow a civil society to emerge. As a result, protest activity should have

increased, as indicated by ‘hard facts’, such as the absolute number, frequency, issue diversity,

duration, and size of the protest assemblies. This is, on the one hand consistent with the logic of the

“multiplier effect” (Przeworski, 1991); on the other hand, it is consistent with social movement

theories that propose that civil society would quickly fill the ‘power vacuum’ that occurs with changed

legal opportunity structures.

2. The Protection of Rights: No Illegitimate Restrictions

Authoritarian regimes often hold on to power by illegitimate restrictions to freedoms, often including

the violation of the physical and psychological integrity of their citizens. Safeguarding physical and

psychological integrity requires that there is no torture or other cruel, inhumane, or degrading

treatments or punishments (Cingranelli & Richards, 1999). This includes the absence of arbitrary

violence, intimidation, and threats of consequences against peaceful protesters. Sources have reported

that there have been various forms of formal and informal suppression in Myanmar. Authorities were

accused of having intimidated and violated protesters even after civil rights were legally re-established

(e.g., Amnesty International, 2016; Human Rights Watch, 2012).

Informal Repression

All informal methods through which the integrity of peaceful protesters are violated can be considered

as authoritarian methods. Authoritarian methods are incompatible with the rule of law and include,

but are not limited to, police harassment or intimidation of protesters and journalists, the presence of

plain-clothes thugs, and the use of violence against peaceful protesters. The application of such

methods must have (at least) eased considerably over time and, if so, this would represent a strong

signal of liberalization. Many regime hardliners are traditionally found in those parts of the state that

previously had the assignment of ensuring and protecting the authoritarian rule such as the police and

military. These hardliners are, at the same time, those state institutions that first face the ‘radical

other’, in the form of protesters. Although it may have been the case that there was previously a broad

portfolio of authoritarian methods, consisting of various forms of violence, threats, and intimidation,

the range of applicable methods must now be transformed to be in accordance with democratic

standards.

Formal Repression in Myanmar?

Formal repression involves methods that are formally in accordance with the rule of law but

inadequate to the substantial dimension of the rule of law. The substantial dimension of the rule of law

adds protection and compliance with human rights to the Aristotelian ideal of the superiority and the

predictability of the law (Ellis, 2010). The following section will elaborate (some of) the legal

provisions that allow formal repression of peaceful protests, which will be later empirically tested.

Section 12 of the Peaceful Assembly and Peaceful Procession Law states the rules to be

obeyed by the participants of an assembly. The violation leads to a revocation of the consent,

accompanied by the obligation to disperse (Section 18, "The Peaceful Assembly and Peaceful

Procession Law," 2011). For instance, protesters are not allowed to “[…] say things or behave in a

way that could affect the country or the Union, race, or religion, human dignity and moral principles”,

are legally liable for "rumors or incorrect information”, and “must not recite or shout chants other than

the ones approved.”. As has already been mentioned, the Peaceful Assembly and Peaceful Procession

Law provides therefore various reasons that can be used to revoke the right to protest and to legally

prosecute peaceful protesters.

Myanmar’s penal code provides additional sections of law that can be used to crush dissent.

Section 505(b) prosecutes “[w]hoever makes, publishes or circulates any statement, rumour or report,

with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the

public whereby any person may be induced to commit an offence against the State or against the

public tranquility” (Burma Library, 2016). The maximum penalty is draconian with up to two years of

imprisonment. Bail can be granted for Section 18 of the Peaceful Assembly and Procession Law but

not for Section 505(b) of the Penal Code (Burma, 1898), which would make it possible for the

authorities to file double charges against protest leaders in order to shut down whole movements.

According to Amnesty International (2016), this tactic is a commonplace “generic mode of

subversion” in Myanmar. Also other sections of the Penal Code can be used to prosecute participants

of ‘unlawful assemblies’. Section 145 of the Penal Code, for instance, allows taking action against

“whoever joins or continues in an unlawful assembly, knowing that it has been ordered to disperse”

(Burma Library 2016). Another undue obstacle to assembly protesters in Myanmar are allegedly

confronted with is the change of the time and venue of protests by the authorities (cf. Amnesty

International 2016). Thereby, not only is the effect of the protest itself diminished, but, when

protesters stage their protest at the originally intended time and location, they are taking part in an

“unlawful assembly” and they can be charged under section 18 of the Peaceful Assembly and Peaceful

Procession Law.

Myanmar laws provide several ways to repress protest that are not in compliance with international

standards on democracy but are allegedly still used. The central question is whether these “generic

modes of subversion” are used to less, the same or to a greater extent to repress the exercise of civil

rights.

Methodology

For this study, data from protest assemblies in Myanmar was collected via a protest event analysis, a

quantitative content analysis from news resources. The resulting dataset, the “Myanmar Protest Event

Dataset” (Buschmann, 2016), contains events starting from February 4, 2011, the inauguration of

Thein Sein as president, and ending on December 31, 2014.

The Source of the Protest Data

In choosing a news source for conducting a PEA, the circumstances of the media landscape and their

consequences for later interpretation have to be kept in mind. Despite today’s vibrant media landscape

with several independent newspapers and broadcasters in Myanmar, the media is still not fully free. In

August 2012, the former censorship agency, the Press Scrutiny and Registration Department,

announced the abolition of pre-publication censorship. Critical stories related to sensitive topics, such

as the military, the intelligence service, or Buddhist nationalism are, however, seldom featured.

Furthermore, formalized censorship has been replaced by self-censorship, and many papers barely

meet international standards on media ethics and quality journalism. Daily newspapers, as used in

most PEA studies, were not in the scope of this study. Independent newspapers emerged in Myanmar

only after the abolition of pre-publication censorship in August 2012. The period of time observed,

however, starts in February 2011 (inauguration of Thein Sein as president). Concerning the underlying

research design of this study, the range of news outlets that came into question was further limited by

(1) language and (2) format restrictions. Neither media outlets solely publishing in Burmese nor those

which are only released in print version could be considered. Overcoming the missing language

competencies would have been beyond the scope of this study and there is a difficulty in accessing

exclusively printed newspapers. Nevertheless, the criteria mentioned above can also be met by using

an online news outlet. For this study, the English online version of the The Irrawaddy was suitable

because it is the best match for the criteria as set out by Hutter (2014) to maximize the sample size and

minimize potential biases, aiming at maximizing the representativity and reliability of the data:

1. Continuous publication / 2. Daily publication: The Irrawaddy was founded in Bangkok in

1993 as a continuous monthly magazine. The English news website was launched in 2000 and the

Burmese version was launched in 2001. In 2011, state censorship was lifted and The Irrawaddy

website became accessible for Internet users in Myanmar. Since 2013, the monthly print journal could

be distributed across the country and it was replaced by a weekly print journal in 2014 (The

Irrawaddy, 2016). The period of time examined in this study ranges from 2011 to 2014. By the time

that the legal relaxation of media laws began in 2011, The Irrawaddy had been established for a long

time. In this period, online articles were already published on a daily basis.

3. High quality: The Irrawaddy is an internationally known and award winning Burmese news

outlet and can therefore be presumed to be more in accordance with international press standards and

so to be more credible (e.g., CPJ, 2015). Additionally, it is considered one of the most popular

Burmese news-sites (according to socialbakers.com, it also ranks third in social media impact).

4. Comparability with regard to political orientation: The Irrawaddy is, to a great extent,

funded by Western donors (The Irrawaddy, 2016). This implies a close tie with the Western

governments-backed opposition party, the National League for Democracy (NLD), led by Daw Aung

San Suu Kyi. Thus, the political orientation is clearly on the side of the opposition.

5. Coverage of the entire national territory: The Irrawaddy claims to be a nationwide news

outlet (The Irrawaddy, 2016). But Myanmar lacks a unified nation-state in the periphery due to the

existence of at least 135 ethnicities and to the geographical situation. This makes coverage of the

entire national territory difficult and adds to the existing difficulties resulting from poor

telecommunication systems. Nevertheless, the dataset includes coverage of protest events even in

remote regions.

With the limited media sources in Myanmar that are available for conducting a PEA and the

present research design, The Irrawaddy was, despite potential biases that will be addressed later, the

best option.

Remarks on Operationalization

In the following section I will be using some terms and concepts that need to be clarified beforehand.

For conducting the PEA, I limited the scope of protest events to protest assemblies. Myanmar’s law

defines a protest assembly as “a gathering of more than one person, […] for the purpose of

expressing their wishes and convictions.” (Section 2(b), "The Peaceful Assembly and Peaceful

Procession Law," 2011). I followed this definition. Further terms I will be using are:

Illegal-by-law: protests in which protesters refrained from requesting permission (before July

2012, enforcement of the Peaceful Assembly and Peaceful Procession Law) or failed to give prior

notice (after June 2014, first amendment of the law) or in which permission was revoked.

Authoritarian methods, which include three dimensions: intimidation, threats, and violence.

Intimidation is found if there were attemps to hinder protesters to proceed their protest, hinder press

coverage, or if a massive presence of security forces was reported. Threats consist of threats of

consequences for protesters expressed by officials, such as the police, to discourage protesters from

exercising the right to assemble. Violence includes arbitrary violence from officials against peaceful

protesters during a protest or in a crackdown.

Issue-categories comprise similar issues and claims of different protest assemblies in order to

allow comparisons between different groups of issues and reduce complexity.

Results

1. The Exercise of Freedom: Protest and Civil Society Activity

 Table 1: Main variables

2011 2012 2013 2014

N =185 17 62 33 73

∅ No. of participants 530 672 440 1062

Duration (of most protests)

< 24 h 24-48 h 5-7 Days 1-2 Weeks

No. of civil society organizations

3 6 6 30

Issue-categories 7 12 12 20

No. of serial protests 1 (5.88)* 25 (40.32) 18 (54.54) 24 (32.87)

No. of arrests 4 115 51 140

Illegal-by-law 1 (5.88) 11 (17.74) 3 (9.09) 9 (12.33) * Absolute figure (relative)

All variables in table 1 indicate an increased protest activity. The number of protest assemblies

increased particularly after law reforms regarding civil liberties (see graphic 1). The first big surge in

the second quarter of 2012 came after the adoption of the Labour Organization Law4 and the Peaceful

Assembly and Procession Law. The second increase in the number of protests appeared after the

commencement of the Peaceful Assembly and Procession Law in quarter three of 2012. The latest

peak of protest assemblies at the end of 2014 was found after the amendment of the Peaceful

Assembly and Procession Law.

Graphic 1

 

With the number of protests, also the average size in terms of the number of participants increased and

even doubled from 2011 to 2014. The duration by frequency multiplied over time. While most protests

in 2011 did not last longer than 24 hours, most lasted between 5 days and 2 weeks in 2014 (see table

1). Moreover, not simply more protest activity was found over time but the civil society seems to have

flourished. In 2011, about 35% of all protest assemblies were staged by a civil society organization, in

2014 already 46.6%. Serial protests increased as well from only 1 out of 17 protests (5.88%) in 2011

to 24 out of 49 protests (48.98%) in 2014. In the year with most protest and civil society activity,

2014, not just big non-governmental organizations (NGOs) and partys, such as the National League

for Democracy (NLD) or the 88 Student’s Generation group, account for the surge (see table 1).

Instead, as a deeper look into the data reveals, more recently founded grassroot organizations and

groups, often with just a single claim, showed up. An example for such a group is the “Committee to                                                                                                                

4  The Labour Organization Law (the Pyidaungsu Hluttaw Law No. 7/2011) grants freedom of association of trade unions, collective bargaining and industrial relations and was implemented by the Labour Organization Rules in February 2012.  

Deter Moving of the Gems Marketplace” that aimed at preventing the allocation of a market in

Mandalay. With more NGOs involvement in protest, also the issues behind protest assemblies became

more diverse (see table 1). The 17 protest assemblies in 2011 covered just 7 (of all 22) issue-

categories. In 2012 and 2013, the issues increased in both years to 12. 2014 was the most issue-diverse

year: with 20 of 22 issue-categories, almost all issues (except “Privatization of public property” and

“Organization of Islamic Cooperation”) were found on the agenda (see appendix, table 1). Striking is

also that in 2014 sensitive topics, such as human rights or disapproval with government officials,

appeared for the first time. Direct criticism against the military, however, is missing. Particularly the

increased presence of grassroot organizations and pluralist issue agendas point to the emergence of a

more vital civil society.

2. The Protection of Rights: No Illegitimate Restrictions

Informal Repression

The most common form of informal repression throughout the observed period of time was

intimidation, including attempts to hinder people to join protests, the media to cover, and the presence

of an intimidatingly high number of security forces. Admittetly, these forms weight less heavy than

the other two forms of repression (see graphic 2). 2013 has seen a renewed rise of especially

intimidation after it temporarily dropped significantly in 2012. Part of the reason can be that protests

against the “Letpadaung copper mine” entered a new stage in 2013. On November 29, 2012, a protest

camp had been violently crackdowned, which led to an outcry in civil society. The Letpadaung copper

mine is a joint venture project between the Cinese Wanbao Mining Ltd and the military-backed Union

of Myanmar Economic Holdings Ltd, for which the military junta confiscated 7,000 acres of farmland

in 2010. Although the protests against the mine were seen as a first test for how serious the reforms in

Myanmar actually are, repression against the mining project stayed harsh.

Two examples bear witness of how anti-Letpadaung protests were targets of authoritarian

methods. On April 26, 2013, marshed hundreds of demonstrators near the Chinese Embassy in

Yangon where they called for the release of protesters who were detained during a previous protest in

Letpadaung. The police threatened the protesters to shoot anyone who continued and thereby forced

the demonstrators to abandon the protest. In another incident on November 25, 2013, a protest camp

near the Letpadaung copper mine was surrrounded by dozens of government-backed thugs, also

known as Swan Arshin, who threatened the protesters to beat them up if they would not disperse the

protest.

Violence came in most of the cases into play to disperse or block protests and strikes. In some

cases, violence was applied more arbitrarily. In December 2013, a protest camp of mainly female

protesters was set up in Yangon to call back land that had been seized in the early 1990s by the Burma

Army. The former residents were alledgedly attacked by pro-government thugs and were surrounded

by the military. On September 16, 2014, laid-off workers of the South Korean Master Sports footwear

factory had allegedly been beaten up by the police when they went to the closed down factory to pick

up their outstanding salaries. 4 people sustained severe injuries while 16 received minor injuries.

Graphic: 2:

 

Despite these incidents, informal repression through the application of authoritarian methods

decreased significantly from 2011 until 2014. Taken only the illegal-by-law protests, authoritarian

methods were still considerably less applied. While in 2011 still 29.41% of formally illegal protests

were repressed by authoritarian methods, only 6.76% of all events were treated in such a way in 2014.

Formal Repression

To almost the same extent to which authoritarian methods were less employed, legal charges against

protesters increased (see graphic 3). This raises the question of whether these charges were used to

undermine freedom in the name of the rule of law and are therefore used to formally repress freedom.

Since the prior legal discussion on Myanmar’s liberalization has already pointed out the short-comings

in the rule of law and potentials for formal repression, latter can be suspected. Moveover, no increase

in violence from protester’s side was reported over time what could otherwise indicate a legimitate

assignment of liability. The following analysis aims at finding, exemplifiying, and quantifying

“generic modes of subversion”, thus, illegitimate application of law, by studying the cases and

examaning the event contexts, arrests, and sentences.

0 .2 .4 .6Frequency

2014

2013

2012

2011

Source: Myanmar Protest Event Dataset

Authoritarian Methods Applied During Protests

Intimidation Threat Violence

 

Graphic 3:

In 2011 only one protest in the dataset was followed by legal procesution. On October 27, 56 farmers

and activists demonstrated in Yangon against land confiscation. After the protest was broken up 7

people, including the human rights lawyer Ko Phoe Phyu, were accused of having refused a police

order to disperse and were later sentenced to 6 to 12 months imprisonment. This protest was one of the

first to contest the new government and was staged even before the Peaceful Assembly and Peaceful

Procession Law was enacted in July 2012. At that time, granting permission for protests as well as the

toleration or break up of illegal-by-law protests was up to the judgement of local authorities and more

or less arbitrary.

In 2012, participants of 10 events in the dataset were prosecuted. Participants of 8 assemblies were

accused of having not obtained permission (which had to be requested 5 days in advance since July

2012) and, thus, violated section 18 of the Peaceful Assembly and Peaceful Procession Law. Striking

is that half of the protests in which protesters were prosecuted were connected to the “Letpadaung

copper mine”. The mine is a venture project between the Cinese Wanbao Mining Ltd and the military-

backed Union of Myanmar Economic Holdings Ltd. For the purpose of setting up the mine were 7,000

acres farmland confiscated in 2010. Opposition against the land sizing organized quickly and erected

camps near the mine. Since then, the location has witnessed many large-scale protests and was seen as

the first test for how serious the reforms in Myanmar actually are. In 3 protest events was another than

the Peaceful Assembly and Peaceful Procession Law employed to prosecute protesters. All were anti-

Letpadaung copper mine protests. On November 23, a protest march intended to go from Yamaethin

0 20 40 60 80 100

2014

2013

2012

2011

Percentage

Authoritarian Methods Applied

0 20 40 60 80 100

2014

2013

2012

2011

Percentage

Charges Filed

Source: Myanmar Protest Event Dataset

Yes No

to Nypyidaw was broken up by police. The approximately 70 gold miners who protested against the

closure of their mine were blocked on the way and allegedly attacked by police and plain-clothed

officials. 4 miners and worker leaders were arrested and double charged for violation of section 505(b)

of the Penal Code and section 18 of the Peaceful Assembly and Peaceful Procession Law. They were

asked “[…] to sign an agreement to abandon the dispute in exchange for their freedom […]” (Aye Nai,

2013). The next day, each protester was sentenced to 6 months imprisonment. To be charged for

505(b) and section 18 prevents a bail out. Therefore, double charging protest leaders can be aimed at

shutting down whole movements.

Table 2: Laws used to charge peaceful protesters

2011 2012 2013 2014

Section 18, Peaceful Assembly and… 1 8 7 13

Section 19, Peaceful Assembly and… 3

Section 353, Penal Code 1

Section 505b, Penal Code 1 2

Section 295 and 295a, Penal Code 1

Emergency Act 144 1

Double charged (505b + Section 18) 2 2 4

The protest camp against the Letpadaung copper mine was violently crackdowned on November 29,

having led to even more protests. The protest originally started half-a-year ago but renewed protests

took place as the company was alleged to have littered farmland. After the crackdown, 7 people were

charged for violation of the Emergency Act 144, which imposes heightened security and prohibits

gatherings at certain areas if “[…] such direction is likely to prevent, or tends to prevent, obstruction,

annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or

danger tohuman life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.”

(Section 144, Code of Criminal Procedure).

In at least 2 cases was permission requested but denied. Since the enforcement of the Peaceful

Assembly and Peaceful Procession Law in July 2012, permission could only be denied if it was “[…]

in breack of the security of the State, rule of law, community’s peace and tranquility, and public

morality.” (Section 4, "The Peaceful Assembly and Peaceful Procession Law," 2011). On September

21, 500 activists of the Kachin Peace Network marched without permission through Yangon to mark

the UN’s International Peace Day and protested against the war in Kachin State. 13 people were

charged under section 18 and sentenced to 1 month in prison or 10.000 Kyat fine. According to the

protesters was permission requested months in advance but not granted. The same day, activists of the

88 Generation Student’s organization in Taunggyi, Shan State, protested without permission because it

was denied. As a consequence, 3 protesters were charged under section 18 of the Peaceful Assembly

and Peaceful Procession Law. No official statements of why the permissions were denied could be

found. However, since terms such as “security”, “tranquility” or “public morality” are very vague,

withholding permission has been relatively simple.

To deny protesters permission to assembly became more ‘popular’ in 2013. 10 events led to legal

prosecution of protesters; 7 of them were protesters charged under section 18 of the Peaceful

Assembly and Peaceful Procession Law, although all requested prior permission. In March 2013, the

Arakanese Women Network and Rakhine Nationalities Development Party demonstrated against a

plan by the Organisation for Islamic Cooperation to build permanent homes for Rohingya Muslims in

Rakhine State. Since the authorities did not reply until hours before the protest despite the fact that

permission was requested, 2 organizers were charged in the aftermath. Therefore, not only the denial

of permission but also to hold back of the notification to later charge protesters for “unlawful

assembly” has been reported. Originally, the law states that protesters have to be given written notice

within 24 hours of whether the assembly was approved or denied (see Section 15, "The Peaceful

Assembly and Peaceful Procession Law," 2011).

In the aftermath of 2 protests, both linked to Letpadaung protests, were activists charged for

having violated section 505(b) and section 18 at the same time. On August 13, 150 Residents near the

Letpadaung mine traveled to the town of Monywa on Tuesday morning to begin the demonstration.

They had applied nine times for permission from local authorities to protest, but their applications

were rejected. When the protest was blocked and the demonstrators unable to proceed, they decided to

sit down and wait. The police forcibly arrested 10 activists. Around 100 people protested on

November 29 outside the Chinese embassy in Yangon to mark the one-year anniversary of the violent

crackdown on anti-Letpadaung protests. 4 people were arrested, including a former political prisoner

and leader of the protest. In both cases were the movement leaders later sentenced to several years

imprisonment.

In 2014, the number of protest assemblies that were followed by legal punishment increased to 22.

The cases in which permission was requested but denied increased to 13 cases. On January 18, about

500 farmers from all over Burma demonstrated in Yangon to call for the return of sized land.

According to protesters was permission requested but not granted, “[…] giving the reason that ‘there

are no farmers or farm problems at Kyauktada Township [in Yangon]” (Lewis & Snaing, 2014), which

is apparently not a legitimate reason to revoke the right to assembly (see Section 4, "The Peaceful

Assembly and Peaceful Procession Law," 2011). Later, 2 protesters were still charged for the violation

of section 18. On February 10, more than 1000 people called for the dismissal of a minister. Two

protesters were charged under section 18, although the demonstrators applied for permission 5 days in

advance. Nontheless, it was rejected with the reason the protesters would block the main street and

market in Magwe. This underlines the previous finding that restrictions to the right to assemble are

formulated unclearly and therefore broadly applicable.

The Peaceful Assembly and Peaceful Procession Law was amended in June 2014 and abolished the

obligation to require permission. As consequence, charges under section 18 were limited to cases in

which protesters missed to give prior notice. However, the application of section 18 has even

increased since then (see table 2). On July 7, the Movement for Democracy Current Force (MDCF)

held a demonstration at Yangon’s City Hall where it allegedly circulated “false information”. The

protest leader was charged by the Kyauktada Township Court with section 18 and 505(b) of the Penal

Code to 2 years and 4 months for distributing leaflets which stated that Aung San Suu Kyi has formed

a interim government. Another leader of the MDCF has previously sentenced to total 13 years for

similar offences.

In 2014, the relocation of protest’s venue has occurred as another tractic to restrict the freedom

to protest. On October 21, a small march through a ward to protest construction plans was followed by

charges against 5 people. Authorities had granted them permission to demonstrate in an old horse-

racing track in Tamwe Township. The protesters, however, decided to demonstrate at their requested

venue. On November 2, 20 journalists hold a candle protest as part of a prayer service in Yangon

during the International Day to End Impunity for Crimes Against Journalists. All 20 journalists were

charged with having violated section 19, due to the order to demonstrate only at a sports field. For the

same verdict were organizers charged who marched with 200 people to commemorate the 100th

anniversary of the birth of Burmese independence hero Bogyoke Aung San. The rally was permitted

within the premises of an old horse-racing track. The organizer ignored the order, because the venue

was not a public space.

Modes of subversion have remained in place. Protest leaders were double charged, which led in most

cases to imprisonment. Until the permission requirement under the first Peaceful Assembly and

Peaceful Procession Law was abolished, the denial of permission had been commonplace. Although

the amendment in Jule 2014 closed some restrictive provisions in the laws, tactics of formal repression

have not stopped. Instead, they have simply shifted to other provisions that are still constraining the

right to assemble. Despite prevailing, and even expanding, tactics of formal repression, more protest

and civil society activity takes place in Myanmar. How does it fit together? How can protesters have

more confidence in staging protest, although they have to be worried about legal procesution? The

answer might lay in the frequent predisential amnesties that took place since Thein Sein took office.

From 2011 until 2014, thousands of political prisoners were released, which might have given

confidence to protesters to even stage illegal-by-law protests.

Conclusion

The present study has investigated the question whether Myanmar has liberalized in the sense that it

provided more secure rights to fundamental freedoms. By applying a quantitative approach, an

increasing exercise of civil liberties, indicated by protest assemblies, were found. Notably, not only

the absolute number increased, but also the issues became more diverse and pluralistic, also shown by

more local NGO engagement. Moreover, the application of authoritarian methods aimed at repressing

protests has considerably decreased. However, peaceful protesters are still prosecuted by formal

“generic modes of subversions” to freedoms, which have been rather preserved than abolished.

Spontaneous reaction by protest is still punishable and forcing protests to disperse for trivial reasons

remained possible. Altough freedom in Myanmar is still constrained in many aspects and international

democratic standards have not yet been met, Myanmar’s government has lifted space for the exercise

of civil liberties and reduced informal repression, therefore, it can be concluded that Myanmar moved

towards freedom.

These findings are derived from self-collected data, which could be potentially skewed by

biases. Hence, a critical review on the data needs to be supplemented.

Potential Biases

From February 2011 until 2014, The Irrawaddy covered 185 protest assemblies. This is, although a

relatively high number, neither a fully representative sampling nor a full sample and various selection

biases may be present.

An exile media origin suggests a generally reduced selectivity due to a higher newsworthiness and

accuracy of depicting protest events. Earl et al. (2004) point to three factors that generally effect

selection bias: (1) event characteristics, (2) news agency characteristics, and (3) issue characteristics.

(1) Event characteristics: The bigger and more violent the event, the more likely it is to be covered.

Restrictive laws are still enforced, changed opportunity structures have not been fully tested, and

suspicious of the working of the government remains. In the uncertainty of liberalization, protests

can be assumed to be genuinely newsworthy even without violence and a small number of

participants.

(2) News agencies, if news wires are present where an event takes place the likelihood of coverage is

higher. As the first international news wire, Associated Press (AP), opened a bureau in Myanmar

just in 2013, a selection bias caused by the news agency supply of protest event news is therefore

unlikely. From 2013 to January 2016 The Irrawaddy published only 589 articles from AP

throughout all theme categories. To compare: Google lists more than 91,100 published articles for

the same period on the whole website. In other words, Associate Press contributed only to about

0.6% of the total articles on The Irrawaddy.

(3) Issue characteristics: The more public interest an issue represents, the more likely that an event

related to it will be covered. Once information about a protest reached The Irrawaddy in its exile,

it was surely newsworthy regardless of the topic. To report about a protest as completely as

possible could be also more favorable for exile media, first, because even ‘hard facts’ such as the

duration of a protest say something about the repression in the home country and, second, the

costs for staging protest events in repressive environments is high. This speaks generally for a less

biased selection.

Exile media, as opposition media in general, may have a stake in intentionally leaving information out

or misrepresenting information with the aim of threatening the ruling regime. It is improbable that a

protest event itself was faked, as this would damage a news outlet’s credibility sooner or later. Single

variables, nevertheless, may be over- or underestimated, which poses a source of description bias.

Description bias refers to incorrect information about a covered protest event. McPhail et al. (1999)

differentiate between hard news about the “who, what, when, where, and why of the event”, which are

“[…] in general, accurate, indicating that missing data may be the most serious form of description

bias“ and soft news, which are “[…] subject to multiple sources of bias” (Earl et al., 2004, 73). Soft

news are more detailed information, for example, about the exact claim or people involved. Such soft

news may be skewed by the political standpoint of the source and thus conceivable in the case of The

Irrawaddy. To improve the reliability of the data, especially of the soft news, thorough crosschecks

were conducted with “The Myanmar Times” and “The Global New Light of Myanmar”. Variables

regarding the arrest and charges against protesters were crosschecked with open data available with

the Assistance Association for Political Prisoners Burma.

With regard to the fact that this study assessed a process towards freedom, a selection bias is

less problematic as long as the selectivity has stayed unaltered. Although some variables are

conceivably description biased, for example, in a way that reports about the government’s misbehavior

towards protests is exaggerated, it doesn’t invalidate the key result of this study. A meaningful

liberalization was found even with such a description bias. Without it, the results might have been

even more favorable of a meaningful liberalization.

The empirical analysis allows optimism. It has revealed that Myanmar’s liberalization has not

just taken place on paper, but has been translated into practice. Despite the fact that Myanmar has still

a long way to go to fully grant and protect freedom, the first steps have already been undertaken. The

latest amendment of the Peaceful Assembly and Peaceful Procession Law in 2016 will further

dismantle illegitimate restrictions on freedoms, nevertheless, more fundamental reforms will be

required to keep pace with the ongoing transition.

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Appendix Table 1

Issue-category   2011   2012   2013   2014  

1: Labor Rights   5   19   1   2  

2: Protection of cultural heritage   1   0   2   2  

3: Commemoration   5   1   1   2  

4: Price increases   1   9   1   3  

6: Release of prisoners   2   2   3   2  

7: Land disputes 2 4 7 8

9: Construction projects   0   9   5   2  

12: Rohingya   0   3   2   2  

13: Peace   0   4   2   1  

14: Support for government   0   1   0   3  

15: Privatization

17: Call for justice

0

1  

2

5  

0

4  

0

10  

18: Forced army recruitment   0   0   1   1  

19: Law amendments   0   0   0   10  

20: Human rights / civil lib.   0   0   0   5  

21: Disapproval with officials 0 0 0 2

22: Environment   0   0   0   3  

23: Electoral system   0   0   0   3  

24: National Education Bill   0   0   0   6  

25: Opposition to gov. plans 0   0   0   4