Myanmar

Constitutional Provisions

The 2008 Constitution of the Republic of the Union of Myanmar does not explicitly protect the right to freedom from torture or other forms of inhuman or degrading treatment, although Article 21(a) protects “the right of liberty and the right of justice”, and Article 353 provides that “[n]othing shall, except in accord with existing laws, be detrimental to the life and personal freedom of any person”. 

Under the Constitution, every citizen "shall be at liberty in the exercise" of the right, "if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality ... to assemble peacefully without arms and holding procession".Art. 354(b), 2008 Constitution of the Republic of the Union of Myanmar.

Treaty Adherence

Global Treaties

Regional Treaties

There is not yet a regional human rights treaty to which South-East Asian nations can adhere, although a non-binding human rights declaration was issued by the Association of South-East Asian Nations (ASEAN) in 2013.

National Legislation

Police Use of Force

The 1898 Code of Criminal Procedure (Chapter V) governs the use of force during arrest. Section 46(2) allows a police officer to "use all means necessary to effect the arrest". Section 46(3) stipulates that “Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or life [imprisonment], but this does not prohibit use of force that causes serious harm or injury short of death. Section 50 states that the person arrested “shall not be subjected to more restraint than is necessary to prevent his escape”. 

Chapter IX of the Code of Criminal Procedure (Section 128) allows a senior police officer to disperse an unlawful assembly "by force” if it does not disperse upon command. The right to peaceful assembly is protected to a certain extent by Article 12(k) of the Right to Peaceful Assembly and Peaceful Procession Act 2011 (as amended by Article 5 of the 2014 Law Amending the Right to Peaceful Assembly and Peaceful Procession Law), but there are no changes to the rules governing dispersal.

Use of Force in Custodial Settings

The 1968 Manual of Rules for the Superintendence and Management of Jails in Burma (Article 114) provides that “No officer shall, on any pretext, strike a prisoner, except in self-defence, or in defence of another, or in the repression of disturbance, and no more force shall then be used than is absolutely necessary”. Article 317 sets out detailed rules on the use of weapons: 

(a) Any officer of the prison may use a sword, bayonet, firearm, or any other weapon, against any prisoner escaping or attempting to escape; provided that resort shall not be had to the use of any such weapon unless such officer has reasonable ground to believe that he cannot otherwise prevent the escape.

(b) Any officer of the prison may use a sword, bayonet, firearm, or any other weapon, on any prisoner engaged in any combined outbreak or in any attempt to force or break open the outer gate or enclosure wall of the prison, and may continue to use such weapon so long as such combined outbreak or attempt is being actually prosecuted.

(c) Any officer of the prison may use a sword, bayonet, firearm, or any other weapon, against any prisoner using violence to any officer of the prison or other person; provided that such officer has reasonable ground to believe that the officer of the prison, or other person, is in danger of life or limb, or that other grievous hurt is likely to be caused to him.

(d) Before using firearms against the prisoner under the authority conveyed in clause (a), the officer of the prison shall give a warning to the prisoner that he is about to fire on him.

Police Oversight

There is no independent external police oversight body in Myanmar and police appear to be able to act with impunity.

Caselaw

Global

In March 2021, in its Resolution 46/21, the Human Rights Council expressed deep concern at "violent acts, including killings, committed against peaceful demonstrators exercising their right to freedom of expression, association and peaceful assembly, which have led to deaths and many injuries, including of children and medical staff, in several cities and towns, as a consequence of the indiscriminate use of lethal force against a crowd and misuse of less-lethal weapons by the Myanmar armed forces and police". The Council condemned the "disproportionate use of force, including the indiscriminate use of lethal force, by the Myanmar armed forces and police".

In August 2018, a United Nations fact-finding mission on Myanmar concluded that the security forces, specifically the Myanmar military (Tatmadaw), have committed what amount to war crimes and crimes against humanity in its treatment of several ethnic and religious minorities in Rakhine, Kachin, and Shan states.

In the 2015 Universal Periodic Review by the Human Rights Council, it was recommended that Myanmar enforce a code of conduct for law enforcement officials, particularly with regard to crowd control and the use of force by the police. It was also recommended that the Myanmar government ensure that the domestic legal framework contains effective provisions for the oversight and accountability of law enforcement officials.Human Rights Council, "Compilation prepared by the Office of the United Nations High Commissioner for Human Rights – Myanmar", August 2015, para. 30.

Regional

There is no regional human rights court with jurisdiction to review police use of force in Myanmar.

National

There is no evidence of national sanction of police officers for excessive or indiscriminate use of force.

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