A/HRC/WGAD/2020/37

GE.20-12131(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-eighth session, 24–28 August 2020

Opinion No. 37/2020 concerning Zayar Lwin, Paing Phyo Min, Zaw Lin

Htut, Kay Khine Htun, Paing Ye Thu and Su Yadana Myint

(Myanmar)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution

60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 26 March 2020, the

Working Group transmitted to the Government of Myanmar a communication concerning

Zayar Lwin, Paing Phyo Min, Zaw Lin Htut, Kay Khine Htun, Paing Ye Thu and Su

Yadana Myint. The Government has not replied to the communication. Myanmar is not a

party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

 Seong-Phil Hong did not participate in the discussion of the present case.

United Nations

A/HRC/WGAD/2020/37

General Assembly

Distr.: General

18 September 2020

Original: English

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2

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

(a)

Background

4.

The source provided the following information on the individuals involved in the

present case:

(a)

Zayar Lwin is a 29-year-old citizen of Myanmar. He is a leading member of

the Confederation of University Student Unions. He usually resides in Yangon;

(b)

Paing Phyo Min is a 23-year-old citizen of Myanmar. He is the President of

the Dagon University Students’ Union and a member of the Confederation of University

Student Unions. He usually resides in Yangon;

(c)

Zaw Lin Htut is a 22-year-old citizen of Myanmar. He is a photojournalist

and a member of the Confederation of University Student Unions. He usually resides in

Yangon;

(d)

Kay Khine Htun is a 22-year-old citizen of Myanmar. She is a trained nurse

and a member of the Confederation of University Student Unions. She usually resides in

Yangon;

(e)

Paing Ye Thu is a 29-year-old citizen of Myanmar. He is a leading member

of the Confederation of University Student Unions. He usually resides in Yangon;

(f)

Su Yadana Myint is a 25-year-old citizen of Myanmar. She works as a

training assistant at the Institute for Strategy and Policy and is a member of the Yangon

Region Youth Affairs Committee and the Confederation of University Student Unions. She

usually resides in Dagon Township.

5.

According to the source, the six individuals form part of the Peacock Generation

group, a satirical poetry troupe engaging in thangyat, a traditional performance art form that

has historically been used to express political opinions through satire. The source reports

that, in 2016, the State Counsellor ended the formal censorship of thangyat lyrics, but

reintroduced it in 2017. Without approval from the censors, thangyat performers are unable

to make reservations to perform at venues funded by the Government.

6.

The source informs the Working Group that Zayar Lwin, Paing Phyo Min, Zaw Lin

Htut, Kay Khine Htun and Paing Ye Thu are performers who took part in an outdoor

performance of thangyat in Yangon during the Thingyan (New Year) Festival in April 2019.

Su Yadana Myint recorded the performances and posted them on social media. The

performance lyrics reportedly included calls to remove legislators appointed by the military

from the parliament, criticism of the military’s involvement in politics and business and an

appeal for the International Criminal Court to bring a case against the military. According

to the source, the performers wore militaristic clothing, which was a motivating factor in

their arrest.

7.

The source alleges that, even though they were not specifically named in the

performance, members of the military filed numerous criminal insult and “online

defamation” suits against the performers and against Su Yadana Myint.

(b)

Arrest and pretrial detention

8.

According to the source, Zayar Lwin, Paing Phyo Min, Paing Ye Thu and Su

Yadana Myint were arrested on 15 April 2019. They were held and questioned for several

hours at a police station and charged with violating section 66 (d) of the

Telecommunications Law. They were told to return for a hearing on 5 September 2019.

Zayar Lwin, Paing Phyo Min and Paing Ye Thu were also charged under section 505 (a) of

the Penal Code, and they were told to return for a hearing on 22 April 2019.

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9.

Kay Khine Htun was arrested on 19 April 2019 during a shift at the Yangon

Children’s Hospital. She was eventually released and told to appear at Mayangone

Township Court on 22 April 2019 for the first hearing on charges under section 505 (a) of

the Penal Code, together with Zaw Lin Htut and the three performers who had been arrested

on 15 April 2019.

10.

Zaw Lin Htut was arrested between 15 and 22 April 2019, and attended a hearing

related to charges under section 505 (a) of the Penal Code on 22 April 2019 in Mayangone

Township Court.

11.

Su Yadana Myint was arrested again, on 17 May 2019, on separate charges. She was

brought to a hearing in Botahtaung Township Court on the same day, along with the five

performers, on new charges under section 505 (a) of the Penal Code. The charges were

brought against them by another individual in relation to the same Thingyan Festival

performances.

12.

The source reports that the arrests on 15 April 2019 and the arrest of Kay Khine

Htun on 19 April 2019 were carried out by police officers of the Mayangone Township

Police Station in Rangoon. The arrest of Su Yadana Myint on 17 May 2019 was carried out

by police officers of the Botahtaung Township Police Station in Yangon. The decision to

arrest the group members on 15 and 19 April 2019 was made by the Mayangone Township

Court in Yangon, and the decision to arrest Su Yadana Myint on 17 May 2019 was made by

the Botahtaung Township Court in Yangon.

13.

The source alleges that none of the individuals named above was shown a warrant or

other decision by a public authority at the time of arrest. According to the source, they were

arrested on charges of violating section 505 (a) of the Penal Code and section 66 (d) of the

Telecommunications Law. Both of those offences require the presentation of a warrant. The

provisions were applied for alleged criminal insult of the military and defamation over a

telecommunications network.

14.

According to the source, section 505 of the Penal Code states that:

Whoever makes, publishes or circulates any statement, rumour or report,

(a)

with intent to cause, or which is likely to cause, any officer, soldier,

sailor or airman, in the Army, Navy or Air Force to mutiny or otherwise disregard or

fail in his duty as such […] shall be punished with imprisonment which may extend

to two years, or with fine, or with both. The source also cites section 66 of the

Telecommunications Law, as amended, as follows:

Whoever commits an [act enumerated in 66 (d)] shall, on conviction, be punished

with imprisonment for a term not exceeding two years or with a fine not exceeding 1

million kyats or with both.

[…]

(d)

extorting, defaming, disturbing or threatening any person by using any

telecommunications network.

15.

The source submits that both section 505 (a) of the Penal Code and section 66 (d) of

the Telecommunications Law have been used to persecute political dissidents in recent

years, with increasing frequency. According to the source, in 2019, eight people who were

critical of the armed forces were charged under section 505 (a) of the Penal Code. Between

April 2016 and June 2017, there were 61 cases brought under section 66 (d) of the

Telecommunications Law, at least 7 of which were filed by the military and 6 by the

Government. Many of those cases concerned individuals who posted or shared content that

criticized the Government or the military. Between 2018 and 2019, 61 people were charged

under section 66 (d) of the Telecommunications Law, and 127 individuals are currently

being tried for “online defamation”.

16.

According to the source, in response to accusations that the language of the

Telecommunications Law was overbroad and vague and that it unfairly criminalized the

expression of opinion online, the Government amended the Law in 2017. The amendment

removed some of the provisions, adjusted the bail conditions and reduced the maximum

sentence. However, the source notes that the amended version continues to be incompatible

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with international legal standards and that the Law is still used to silence critics of the

Government and the military.

17.

All six individuals spent time in pretrial detention in Mayangone and Botahtaung

Townships in Yangon, after being accused of violating section 505 (a) of the Penal Code

and/or section 66 (d) of the Telecommunications Law. Two members of the military have

made accusations, one in each township, on behalf of the institution as a whole.

18.

The six individuals were denied bail and sent to Insein Prison for pretrial detention

after their first hearings, on 22 April 2019 for the five performers and on 17 May 2019 for

Su Yadana Myint. The source notes that, according to the Code of Criminal Procedure of

Myanmar, any person accused of a non-bailable offence may be released on bail if she or he

is arrested or detained without a warrant by a police officer. The source reiterates that that

was the case for all six individuals, given that none of them was presented with a warrant

prior to their arrest and detention.

19.

The source notes that, although other persons arrested on the same charges have

frequently been released on bail, all six individuals in the present case were denied bail.

The source alleges that bail has been routinely denied to persons held under section 66 (d)

of the Telecommunications Law when they were accused of defaming Government officials

or the military.

(c)

Convictions and sentences

20.

According to the source, the six group members are involved in four cases in which

a decision has been made. All six individuals were convicted of violating section 505 (a) of

the Penal Code in Botahtaung Township and sentenced to one year in prison with hard

labour. The five performers were also convicted of that charge in Mayangone Township

and sentenced to one year in prison with hard labour.

21.

All six individuals were charged with violating section 66 (d) of the

Telecommunications Law in Botahtaung Township, and the four troupe members who were

arrested on 15 April 2019 faced additional charges in Mayangone Township. Both of those

cases have concluded. In the first case, Paing Phyo Min, Kay Khine Htun and Su Yadana

Myint were convicted and sentenced to six months in prison with hard labour. In

Mayangone Township, all four members of the group who were arrested on 15 April 2019

were convicted and sentenced to six months in prison with hard labour.

22.

The source reports that, collectively, the six individuals will spend 11 years in prison

for violating section 505 (a) of the Penal Code and 3.5 years in prison for violating section

66 (d) of the Telecommunications Law. However, not all of the trials have concluded yet.

The group members are facing further charges under both of those provisions in Pathein

Township, although it is not yet clear when the case will be heard.

23.

The source informs the Working Group that, on 30 October 2019, the five

performers were sentenced to a year in prison under section 66 (d) of the

Telecommunications Law for “damaging the reputation” of the armed forces during an

artistic performance that was streamed online. Along with Su Yadana Myint, they received

a second prison sentence on 19 November 2019 under section 505 (a) of the Penal Code for

mocking the military in the same performance. Zayar Lwin, Paing Phyo Min, Kay Khine

Htun, Paing Ye Thu and Su Yadana Myint have since received additional sentences under

section 66 (d) of the Telecommunications Law. All six individuals remain in detention in

Insein Prison.

24.

According to the source, defamation is a criminal charge in Myanmar, despite

repeated recommendations from the United Nations that it be decriminalized. The source

recalls that the Human Rights Committee has stated that imprisonment is never an

appropriate penalty for defamation.1 In the present case, the six individuals have been

detained for a prolonged period at great cost to their families, their educations and their

livelihoods, even though they present no danger to themselves or to the public and can be

1 Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and

expression, para. 47.

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relied upon to appear in court when summoned. The source argues that their detention is a

disproportionate punishment for breaching the legal provisions that concern self-expression.

25.

The source informs the Working Group that, although some members of the Peacock

Generation group have faced charges for their political activism in the past, the cases

detailed above are the first in which any group member has faced charges for a thangyat

performance; indeed, they are the first instances of any thangyat performers in the country

having faced such charges since the start of the democratic transition.

26.

The source adds that Zayar Lwin and Paing Ye Thu have previously been targeted

for their activism. As leading members of the Confederation of University Student Unions,

they organized a protest calling for the resignation of members of the parliament appointed

by the military, which was held in Yangon on 30 June 2015. Shortly after the protest, the

police arrested both of them and a third organizer. They all faced trial for charges under

section 18 of the Peaceful Assembly and Peaceful Procession Law and section 505 (b) of

the Penal Code. Ultimately, they were released from prison on 8 April 2016 as part of a

group of “prisoners of conscience” that received presidential pardons from the State

Counsellor. The other four group members have no previous criminal records.

(d)

Analysis of violations

27.

The source submits that the detention of members of the Peacock Generation group

is arbitrary under categories II and III.

28.

In relation to category II, the source argues that the charges against the six

individuals named above constitute a violation of the right to freedom of expression

guaranteed by article 19 of the Universal Declaration of Human Rights and article 354 of

the Constitution of Myanmar, as well as under the Law Protecting the Privacy and Security

of Citizens.

29.

According to the source, the language in section 505 (a) of the Penal Code is vague

and overbroad. Under the section, the publication or circulation of “any statement, rumour

or report” with intent to cause a member of the military to mutiny is criminalized, but it

provides no clear definitions of those terms. The lack of definitions has enabled the courts

to apply the charge liberally and, in the present case, to use it to criminalize a satirical

artistic expression of political opinion.

30.

Moreover, thangyat performances have allowed individuals to discuss social or

political issues for generations. Such performances contribute meaningfully to political

participation in the country. By sharing the performances online, the Peacock Generation

group aimed to further political discourse in the country; participation in sharing opinions

on military behaviour in an online version of a public square is an exercise of individual

rights. The prosecution of the Peacock Generation group members for those performances

violates their freedom of expression of political opinion through art, which is protected

under article 19 of the Universal Declaration of Human Rights.

31.

The source notes that, in the present case, the courts have found that the rights of

members of the Peacock Generation group should be abridged, because their free speech

constituted defamation. They were charged with “criminal intimidation, insult and

annoyance” under section 505 (a) of the Penal Code and “online defamation” under section

66 (d) of the Telecommunications Law. In the court proceedings, the prosecution argued

that curbing their free expression was valid because their performance harmed the rights

and reputations of those bringing the allegations, who were all members of the military.

The source notes that, under international law, individuals are not protected from insult or

from other forms of criticism, whether it is intentional or not. The reasoning in the court

rulings represents a misinterpretation of the international legal standards on defamation.

32.

Defamatory speech must present a specific and direct threat, and a direct and

immediate connection between the expression and the threat must be established. 2

Restricting the speech of group members does not meet the standard of specificity, because

the military officers were not mentioned or referenced individually. Rather, the officers

extrapolated a personalized threat from speech that merely criticized the military in general.

2 Ibid., para. 35.

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Moreover, the lyrics of the thangyat did not include a targeted threat, given that the calls to

action were restricted to urging the International Criminal Court to prosecute the military

and urging the military to stop interfering in politics and business. The source states that

those are valid expressions of political opinion that are protected under international law.

Restrictions on free expression must not impede political debate.3

33.

The source also submits that, by bringing charges against the group members for the

critical nature of the lyrics, the courts established that any criticism of the military’s

political role could be considered criminal and those who criticize that role could be

prosecuted. However, under international law, public figures and institutions, including

military officers and the army in general, cannot be shielded from criticism related to their

public service.4

34.

General criticism of the military by the group members does not violate the military

officers’ individual rights, even if the officers felt personally insulted. State legislators in

Myanmar have previously acknowledged that bringing criminal charges over “insults” is

not compliant with international law. When the Telecommunications Law was implemented

in 2013, it was widely criticized by the international community for the vague and

overbroad language in section 66 (d). The courts were specifically criticized for

criminalizing “insults”, in violation of international standards for defamation. The

Telecommunications Law was subsequently amended to remove the term “insulting” from

section 66 (d). In practice, however, the amendment has not affected the application of the

law. “Insult” has been subsumed under the umbrella of “defamation”, and judges do not

require individuals making allegations to demonstrate that the contested speech constitutes

a direct threat or includes false information. A personal feeling of insult by one army

officer is enough to justify an abridgement of all free expression related to the military. The

source argues that that constitutes a clear violation of the Universal Declaration of Human

Rights.

35.

In relation to category III, the source submits that the non-observance of the

international norms relating to the right to liberty and security of person, as set out in

articles 9 and 10 of the Universal Declaration of Human Rights, is of such gravity as to give

the deprivation of liberty of the six individuals an arbitrary character.

36.

The source observes that none of the six individuals was presented with a warrant at

the time of arrest. The failure to present a warrant violates the Code of Criminal Procedure,

under which a warrant is required to be presented at the time of arrest in relation to alleged

violations of sections 500 and 505 (a) of the Penal Code.

37.

Furthermore, it is submitted that the six individuals were unjustifiably denied bail.

They spent a significant amount of time in pretrial detention, even though such detention

should be a last resort in criminal proceedings, with due regard for the investigation of the

alleged offence and for the protection of society and the victim.5 There was no basis for any

assertion that the group members represented a threat to society or to themselves, or that

they would fail to appear when called to court.

38.

In addition, the source submits that international standards on pretrial detention

emphasize the importance of an expeditious trial and decision.6 However, the six troupe

members each spent nearly a year in pretrial detention in relation to allegations that are

considered to be a civil matter under international law. Pretrial detention is justified in

Myanmar on the basis that defamation is considered to be a criminal, rather than civil,

offence under domestic law. However, special procedures mandate holders and others have

opposed the criminalization of defamation and the use of detention in defamation cases.7

United Nations bodies have also indicated that defamation should only be considered

criminal in the most serious cases and that the penalty therefor should never be

3 Ibid., para. 28.

4 Ibid., para. 38.

5 United Nations Office of Drugs and Crime (UNODC), Compendium of United Nations Standards and

Norms in Crime Prevention and Criminal Justice, p. 120. Available at www.unodc.org/pdf/

criminal_justice/Compendium_UN_Standards_and_Norms_CP_and_CJ_English.pdf.

6 Human Rights Committee, general comment No. 34, para. 47.

7 See www.oas.org/en/iachr/expression/showarticle.asp?artID=87&lID=1.

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imprisonment.8 Furthermore, the failure to proceed to trial expeditiously could have a

chilling effect that may unduly restrict the exercise of freedom of expression of the person

concerned and others.9

39.

The source argues that another fair trial violation occurred in Mayangone Township

Court on 22 May 2019, when the defendants were handcuffed at the court. Supporters of

the Peacock Generation group who attended the trial protested the use of restraints, arguing

that it was not justified for non-violent offenders. Members of the police have reportedly

replied that they handcuffed the defendants in accordance with the guidelines in the police

handbook. According to the source, the handcuffing of defendants is in violation of the

Standard Minimum Rules for the Treatment of Prisoners, in which it is established that

handcuffs and other instruments of restraint should only be used as a precaution against

escape during a transfer, provided that they are removed when the person appears before a

judicial or administrative authority.10 The five performers were handcuffed before the court,

despite the fact that there was no cause to believe that they would injure themselves or

others or damage property, which are the only legal exceptions to justify the use of

restraints during trial.

40.

In addition, the multiple charges and cases against the group members is a clear

example of persecution and undermines the efficiency of the courts. Each of the six

individuals faces between three and seven separate charges, in various townships, for the

same alleged crime. Individual military officers have brought cases against them in each

township that the group performed in throughout the Thingyan Festival. For example, Su

Yadana Myint faces separate charges under section 66 (d) of the Telecommunications Law

in Botahtaung Township, Mayangone Township and Pathein Township.

41.

The source submits that filing separate defamation charges against the group

members in various townships is a strategic move that forces them to spend months – if not

years – appearing in courts to debate the thangyat performances that took place in April

2019. Some of the group members have been called to court every week. After making the

long trip into Yangon from Insein Prison, their hearings have often been postponed, forcing

them to waste their time and incur additional legal fees for the day in court.

42.

The source notes that the group members initially contested the charges against them

and participated in the judicial process, but have since decided not to appeal the decisions

because of the recent failure of the judicial process to adhere to international law on

protecting fundamental rights. The source concludes that, given the pattern of arrests and

convictions under section 505 (a) of the Penal Code and section 66 (d) of the

Telecommunications Law, there is no reason to expect that further participation in formal

judicial mechanisms will result in remedy, relief or acquittal.

43.

The Working Group notes that Su Yadana Myint was the subject of an allegation

letter sent by the Working Group and three other special procedures mandate holders on 26

September 2019.11 The Working Group acknowledges the Government’s responses of 28

November 2019 and 2 January 2020.12 The six individuals were also the subject of an

urgent appeal sent by three special procedures mandate holders on 20 April 2020. At the

time of the adoption of the present opinion, there had been no response from the

Government to the latter communication.

Response from the Government

44.

On 26 March 2020, the Working Group transmitted the source’s allegations to the

Government under its regular communication procedure, requesting that the Government

provide detailed information by 25 May 2020 about the situation of Zayar Lwin, Paing

Phyo Min, Zaw Lin Htut, Kay Khine Htun, Paing Ye Thu and Su Yadana Myint. The

8 Human Rights Committee, general comment No. 34, para. 47.

9 Ibid.

10 UNODC, Compendium of United Nations Standards and Norms, p. 10.

11 The allegation letter is available at https://spcommreports.ohchr.org/TMResultsBase/

DownLoadPublicCommunicationFile?gId=24847.

12 The Government’s responses are available at https://spcommreports.ohchr.org/

TMResultsBase/DownLoadFile?gId=35023 and https://spcommreports.ohchr.org/TMResultsBase/

DownLoadFile?gId=35085.

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Working Group also requested the Government to clarify the legal provisions justifying

their detention, as well as its compatibility with the obligations of Myanmar under

international human rights law. Moreover, the Working Group called upon the Government

to ensure the physical and mental integrity of the six individuals.

45.

The Working Group regrets that it did not receive a response from the Government

to that communication. The Government did not request an extension of the time limit for

its reply, as provided for in the Working Group’s methods of work.

46.

The Working Group notes with concern that the Government has not availed itself of

the opportunity to respond to the allegations made in the present case and in other

communications made under the regular communication procedure in recent years.13 Indeed,

the Government has not provided a response to the Working Group’s regular

communication procedure since 2013. 14 The Working Group urges the Government to

engage constructively with it on all allegations relating to the arbitrary deprivation of

liberty.

Discussion

47.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, on the basis of all the information submitted, in conformity

with paragraph 15 of its methods of work.

48.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (A/HRC/19/57,

para. 68). In the present case, the Government has chosen not to challenge the prima facie

credible allegations made by the source.

(i)

Category I

49.

The source states that the arrests and detention of the six Peacock Generation group

members took place between 15 April and 17 May 2019.15 Zayar Lwin, Paing Phyo Min,

Paing Ye Thu and Su Yadana Myint were arrested on 15 April 2019. Kay Khine Htun was

arrested on 19 April 2019. Zaw Lin Htut was arrested between 15 and 22 April 2019. Su

Yadana Myint was arrested again on separate charges on 17 May 2019.

50.

According to the source, all of those arrests took place without a warrant being

presented at the time of arrest. There is no suggestion that the arrests took place in flagrante

delicto, i.e., while the thangyat performances were taking place or immediately thereafter,16

which might have obviated the need for a warrant. Indeed, some of the six group members

were clearly not performing when arrested, such as Kay Khine Htun, who was reportedly

arrested during a shift as a nurse at the Yangon Children’s Hospital. The source states that

the police in Mayangone and Botahtaung Townships did not comply with the Code of

Criminal Procedure, under which it is required that a warrant be presented in relation to

certain offences, including for the charges brought against the six individuals in the present

case.

51.

The Working Group considers that the source has established a credible prima facie

case that the authorities did not present an arrest warrant at the time of the arrest of the six

individuals. The Government did not respond to the Working Group’s communication

under its regular procedure and has therefore not provided any information or explanation

13 Opinions No. 33/2016, No. 31/2014, No. 24/2014 and No. 6/2014. The Government also did not

respond to the Working Group’s communications in relation to opinions No. 49/2013, No. 23/2010,

No. 12/2010 and No. 4/2010.

14 The Government submitted a response in relation to opinions No. 56/2013, No. 50/2013, No. 25/2011

and No. 28/2010, as well as to other previous cases.

15 Although the source did not make this allegation in relation to category I, the Working Group

considers that it is appropriately considered under category I.

16 Opinions No. 9/2018, para. 38; No. 36/2017, para. 85; No. 53/2014, para. 42; No. 46/2012, para. 30;

No. 67/2011, para. 30; and No. 61/2011, paras. 48–49; and E/CN.4/2003/8/Add.3, paras. 39 and 72

(a).

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to rebut the source’s allegations. The Working Group recalls that, in its findings in previous

cases involving Myanmar, the authorities were found to not have presented an arrest

warrant at the time of the arrest, suggesting that the source’s claims are credible.17

52.

As the Working Group has previously stated, it is not sufficient that there is a law

which authorizes an arrest. The authorities must invoke that legal basis and apply it through

an arrest warrant.18 An arrest warrant was not presented at the time of the arrest of the six

individuals in the present case, in violation of articles 3, 9 and 10 of the Universal

Declaration of Human Rights.19 As a result, the authorities did not establish a legal basis for

the arrest of Zayar Lwin, Paing Phyo Min, Zaw Lin Htut, Kay Khine Htun, Paing Ye Thu

and Su Yadana Myint.

53.

Accordingly, the Working Group finds that there was no legal basis for the detention

of the six individuals named above. Their detention is arbitrary under category I.

(ii)

Category II

54.

The source alleges that the six individuals were deprived of their liberty as a result

of their peaceful exercise of their right to freedom of opinion and expression, under article

19 of the Universal Declaration of Human Rights. According to the source, the six

individuals used lyrics during thangyat performances that called for the removal of

legislators appointed by the military, criticized the military’s involvement in politics and

business and made an appeal for the International Criminal Court to bring a case against the

military. The performers wore militaristic clothing during the performances. Although they

were not specifically named in the performance, members of the military filed numerous

criminal insult and “online defamation” suits against the six individuals.

55.

According to the source, the six individuals have been prosecuted, convicted and

sentenced solely for the peaceful expression of their political opinions through art, namely,

thangyat performances. The source states that, for generations, thangyat performances have

allowed individuals to discuss social and political issues through satire. In the present case,

the performances were streamed online as a means of furthering political discourse

throughout the country. Indeed, according to the source, it is the first time that any thangyat

performers in Myanmar have been prosecuted since the start of the democratic transition

process.

56.

The Working Group considers that the thangyat performances by the group, and

their dissemination online, falls within the right to freedom of opinion and expression,

including artistic expression, protected under article 19 of the Universal Declaration of

Human Rights.20 That right protects expression even when it may shock, offend or disturb,21

when it may insult an individual or group22 or criticizes an institution,23 such as the military

17 See, for example, opinions No. 33/2016, para. 10; No. 56/2013, para. 8 (h); No. 49/2013, para. 5; No.

25/2011, para. 20; and No. 4/2010, paras. 5 and 7.

18 Opinions No. 46/2019, para. 51; No. 46/2018, para. 48; No. 36/2018, para. 40; and No. 10/2018, para.

45.

19 Opinions No. 82/2018, para. 29; No. 68/2018, para. 39; No. 30/2018, para. 39; No. 26/2018, para. 54;

No. 10/2018, para. 46; and No. 3/2018, para. 43 (finding that the presentation of an arrest warrant is

procedurally inherent in articles 3 and 9 of the Universal Declaration of Human Rights, as well as in

principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment).

20 A conclusion supported by the findings of other United Nations human rights experts. See, for

example, A/72/382, paras. 16–25; A/74/342, para. 23; and A/HRC/43/59, para. 18 (referring

specifically to the Peacock Generation group). See article 27 (1) of the Universal Declaration of

Human Rights, which protects the right to freely participate in the cultural life of the community, and

article 15 (1) (a) of the International Covenant on Economic, Social and Cultural Rights, to which

Myanmar is a party, which protects the right to take part in cultural life. See also Committee on

Economic, Social and Cultural Rights, general comment No. 25 (2020) on science and economic,

social and cultural rights, para. 10, in which the Committee noted that culture is an inclusive concept

encompassing all manifestations of human existence, and general comment No. 21 (2009) on the right

of everyone to take part in cultural life.

21 See, for example, opinion No. 33/2019.

22 See, for example, opinions No. 4/2019 and No. 46/2013.

23 See, for example, opinions No. 35/2012 (royal family) and No. 7/2008 (a government).

A/HRC/WGAD/2020/37

10

in the present case.24 As the Working Group has previously highlighted, the imprisonment

of individuals for allegedly defaming another person is never compatible with the freedom

of expression.25

57.

Moreover, the Working Group considers that the group members’ use of thangyat

performances to comment on politics and the role of the military amounted to the legitimate

exercise of the right to take part in government under article 21 (1) of the Universal

Declaration of Human Rights.

58.

There is nothing to suggest that the permissible limitations on the above rights set

out in article 29 (2) of the Universal Declaration of Human Rights would affect the findings

in the present case. In particular, the Government has not presented any reasons that may

have legitimized any restrictions on the above-mentioned rights. The Working Group was

not convinced that prosecuting the six individuals was necessary to protect a legitimate

interest under that provision, nor that prison sentences were a proportionate response to

engaging in artistic performances. There is no evidence to suggest that the troupe’s

criticism of the military called, directly or indirectly, for violence or could reasonably be

considered to threaten morality, public order or the general welfare in a democratic society.

Accordingly, the Working Group refers the present case to the Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression and the Special

Rapporteur in the field of cultural rights.

59.

The Working Group concludes that the detention of the six individuals resulted from

the peaceful exercise of their right to freedom of opinion and expression and their right to

take part in Government, in violation of articles 19 and 21 (1) of the Universal Declaration

of Human Rights. Their detention is arbitrary under category II.

60.

As the Working Group has previously emphasized, the principle of legality requires

that laws be formulated with sufficient precision so that the individual can acquire access to

and understand the law and regulate his or her conduct accordingly.26 The Working Group

considers that the language used in section 505 (a) of the Penal Code, under which the

publication or circulation of “any statement, rumour or report” with intent to cause a

member of the military to mutiny is criminalized, but which provides no clear definitions of

those terms, lacks sufficient detail and may, as in the present case, proscribe the peaceful

exercise of rights. Similarly, behaviour outlawed in section 66 (d) of the

Telecommunications Law, namely, acts that are “disturbing or threatening to any person” is

so vague and overbroad that a person could not determine whether his or her conduct would

fall within the scope of the offence.27

61.

The application of vague and overly broad provisions in the present case adds

weight to the Working Group’s conclusion that the detention of the six individuals falls

within category II. The Working Group considers that, in some circumstances, laws may be

so vague and overly broad that it is impossible to invoke a legal basis justifying the

deprivation of liberty.

(iii)

Category III

62.

Given its finding that the detention of the six individuals is arbitrary under category

II, the Working Group emphasizes that no trial should have taken place and that no further

proceedings should be brought against them in future. However, multiple proceedings have

already been brought against each individual, some of which have concluded, resulting in

their convictions and sentencing. The information submitted by the source discloses

violations of their right to a fair trial during those proceedings.

63.

The source argues that the six individuals were unjustifiably denied bail and that

pretrial detention should be a last resort in criminal proceedings. According to the source,

24 Relevant background information on allegations involving the military in Myanmar can be found in

the report of the independent international fact-finding mission on Myanmar (A/HRC/39/64).

25 See, for example, opinions No. 25/2012, para. 60; and No. 35/2008, para. 36.

26 Opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59.

27 See opinion No. 56/2013, para. 11, in which the similar provision under section 505 (b) of the Penal

Code was referred to as vague and in violation of the principle of legality. See also Human Rights

Council resolution 40/29, para. 9.

A/HRC/WGAD/2020/37

11

there was no basis for any assertion that the group members represented a threat to society

or that they would fail to appear when called to court. The source notes that other persons

arrested on the same charges have frequently been released on bail, whereas the six

individuals in the present case were remanded in pretrial detention. The source further

submits that, although offences under section 505 (a) of the Penal Code are non-bailable,

the six individuals were still entitled to bail because they were arrested without a warrant.

According to the source, the Code of Criminal Procedure provides that any person accused

of a non-bailable offence may be released on bail if he or she is arrested or detained without

a warrant by a police officer.

64.

The Working Group recalls that pretrial detention should be the exception rather

than the rule.28 International human rights norms, including principles 38 and 39 of the

Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment, provide that a person detained on a criminal charge is entitled to a trial

within a reasonable amount of time or to release pending trial. A decision whether to detain

an individual prior to trial must be based on an individualized assessment of whether the

detention is lawful, reasonable and necessary. In making that assessment, the courts must

consider whether alternatives to detention, such as bail, are appropriate.29

65.

The Government has not provided any indication that alternatives to pretrial

detention were considered and has not explained why bail was denied. There is no

indication that the six individuals presented a flight risk, nor that there was any risk that

they would interfere with the evidence or pose any danger to the community. The six

individuals were held on charges relating to the alleged defamation of members of the

military, not for violent offences, and, as noted earlier, were detained for the exercise of

their legitimate rights under international human rights law. Although two of them had

previous convictions for organizing a protest – for which they were subsequently pardoned

– the other four had no previous criminal records. Notably, the denial of bail was a marked

departure from the previous decisions made by some of the arresting officers to release

defendants on a promise to appear at their first hearings, with no apparent concern that they

presented any risk while at liberty. Given the circumstances, the Working Group considers

that holding the six individuals in pretrial detention in the absence of any reasoned and

adequate explanation was unnecessary and disproportionate and was inconsistent with their

right to the presumption of innocence under article 11 (1) of the Universal Declaration of

Human Rights.30

66.

In reaching that conclusion, the Working Group takes note of the source’s

submission that the charges under section 505 (a) of the Penal Code are non-bailable. In its

jurisprudence, the Working Group has consistently confirmed that mandatory pretrial

detention for non-bailable offences violates a State’s obligations under international human

rights law.31 In particular, detention for non-bailable offences deprives a detainee of the

right to seek non-custodial alternatives to detention, such as bail. In addition, the imposition

of pretrial detention for certain non-bailable offences reverses the presumption of innocence,

so that those charged with such offences are automatically detained without a balanced

consideration of their individual circumstances, including the risk that they may abscond,

interfere with evidence or commit an offence. The Working Group urges the Government

to amend its legislation to remove all non-bailable offences.

67.

In addition, the Working Group considers that the six individuals were not afforded

the right to be tried within a reasonable time frame, given that they spent a significant

period in pretrial detention. Drawing from their dates of arrest in April and May 2019 and

their convictions in October and November 2019, it appears that the period was

approximately six months in duration. As the Working Group has previously confirmed, the

reasonableness of any delay in bringing a case to trial must be assessed, taking into account

the circumstances of each case, the complexity of the case, the conduct of the accused and

28 A/HRC/19/57, paras. 48–58. See also opinions No. 66/2011, para. 39; and No. 37/2007, para. 45.

29 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), guideline 15.

30 See also opinions No. 68/2019, paras. 94–96; No. 3/2019, para. 57; and No. 66/2011, para. 42.

31 Opinions No. 24/2020, No. 21/2020, No. 19/2020, No. 8/2020, No. 68/2019, No. 64/2019, No.

14/2019, No. 75/2018, No. 61/2018, No. 53/2018, No. 16/2018, No. 1/2018, No. 24/2015 and No.

57/2014; and A/HRC/42/39/Add.1, sect. IV.A.1.

A/HRC/WGAD/2020/37

12

the manner in which the matter was handled by the authorities.32 The delay in bringing the

six individuals to trial was unacceptably long in the particular circumstances of the present

case, especially given that there was no evidence that alternatives to detention had been

considered. Moreover, as noted above, it is clear that the six individuals should never have

been detained for the peaceful exercise of their rights under international human rights law,

so even a relatively short delay in trying them was unacceptable.33 The Working Group

therefore considers that the failure to ensure expeditious proceedings violated articles 9 and

10 of the Universal Declaration of Human Rights and principle 38 of the Body of Principles.

68.

Furthermore, the source alleges that the right to a fair trial was violated in the

present case because the defendants were handcuffed by the police at court, when there was

no justification for the use of such restraints. In the absence of an explanation from the

Government as to why restraints were used during the trial, the Working Group finds that

the handcuffing of the six individuals represented a further violation, namely, of their right

to the presumption of innocence under article 11 (1) of the Universal Declaration of Human

Rights. As the Working Group has previously stated, criminal defendants should not be

presented to the court in a manner indicating that they may be dangerous criminals, because

it undermines the presumption of innocence.34

69.

The Working Group expresses its concern that the multiple cases brought against

each of the six defendants may have involved convictions for the same thangyat

performance in courts in various townships. It is not clear from the information provided by

the source whether the multiple prosecutions under section 505 (a) of the Penal Code and

section 66 (d) of the Telecommunications Law relate to different performances. Given that

the source made no submission on the issue of double jeopardy, the Working Group is

unable to reach a conclusion on that question. However, in the light of the fact that there are

further cases pending against the group members, the Working Group urges the

Government to ensure that none of them has been or will be convicted and sentenced twice

for the same act. That would amount to a violation of the principle of double jeopardy and

the right to a fair trial guaranteed under article 10 of the Universal Declaration of Human

Rights.35

70.

The Working Group concludes that those violations of the right to a fair trial were of

such gravity as to give the detention of the six individuals an arbitrary character under

category III.

(iv)

Category V

71.

The Working Group considers that the six individuals were detained on

discriminatory grounds, namely, for their political or other opinion. As noted above, the

group members used thangyat performances to comment on politics and the role of the

military and were detained for doing so. As a result, their detention falls within category V.

72.

The Working Group calls upon the Government to immediately and unconditionally

release the six individuals who have now been in detention since they were denied bail in

April and May 2019. Given the serious violations of the rights of the six individuals, the

Working Group refers the present case to the Special Rapporteur on the situation of human

rights in Myanmar.

73.

The Working Group would welcome the opportunity to work constructively with the

Government to address the arbitrary deprivation of liberty. On 2 October 2019, the

Working Group reiterated its previous request to the Government to undertake a country

visit, and it will continue to seek a positive response. Given that the third review cycle of

Myanmar in the context of the universal periodic review mechanism of the Human Rights

Council is due to take place in January 2021, now is an opportune time for the Government

to strengthen its cooperation with the special procedures mechanisms of the Council.

32 See, for example, opinions No. 16/2020, No. 15/2020, No. 8/2020 and No. 1/2020.

33 Opinion No. 46/2019, para. 63 (the Working Group was not convinced that there was a category II

violation and was unable to find that a 16-month delay before the trial was unreasonable).

34 See, for example, opinions No. 83/2019, para. 73; No. 36/2018, para. 55; No. 79/2017, para. 62; No.

40/2016, para. 41; and No. 5/2010, para. 30.

35 A/HRC/43/59, para. 18 (discussing the multiple cases brought against the Peacock Generation group).

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13

Disposition

74.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Zayar Lwin, Paing Phyo Min, Zaw Lin Htut, Kay

Khine Htun, Paing Ye Thu and Su Yadana Myint, being in contravention of articles

2, 3, 7, 9, 10, 11, 19 and 21 (1) of the Universal Declaration of Human Rights, is

arbitrary and falls within categories I, II, III and V.

75.

The Working Group requests the Government of Myanmar to take the steps

necessary to remedy the situation of the six individuals named above without delay and

bring it into conformity with the relevant international norms, including those set out in the

Universal Declaration of Human Rights. The Working Group encourages the Government

to accede to the International Covenant on Civil and Political Rights.

76.

The Working Group considers that, taking into account the circumstances of the case,

the appropriate remedy would be to release the six individuals immediately and accord

them an enforceable right to compensation and other reparations, in accordance with

international law. In the current context of the global coronavirus disease (COVID-19)

pandemic and the threat that it poses in places of detention, the Working Group calls upon

the Government to take urgent action to ensure their immediate release.

77.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary detention of the six individuals

and to take appropriate measures against those responsible for the violation of their rights.

78.

The Working Group requests that the Government bring its laws, in particular

section 505 (a) of the Penal Code and section 66 (d) of the Telecommunications Law, into

conformity with the recommendations made in the present opinion and with the obligations

of Myanmar under international human rights law.

79.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers the present case to: (a) the Special Rapporteur on the promotion and protection of the

right to freedom of opinion and expression; (b) the Special Rapporteur in the field of

cultural rights; and (c) the Special Rapporteur on the situation of human rights in Myanmar,

for appropriate action.

80.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

81.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether the six individuals named above have been released and, if so, on

what date;

(b)

Whether compensation or other reparations have been made to them;

(c)

Whether an investigation has been conducted into the violation of their rights

and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of Myanmar with its international obligations in line

with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

82.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

83.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

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14

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

84.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and has requested that they take into account

its views and, where necessary, take appropriate steps to remedy the situation of persons

arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have

taken.36

[Adopted on 24 August 2020]

36 Human Rights Council resolution 42/22, paras. 3 and 7.