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ABSTRACT
Myanmar's democratisation entailed political liberalisation and legal reform, but contrary to liberal expectations, also further restrictions on the right to religious freedom. This article examines four laws that were passed by the President and the Parliament in 2015 in order ‘to protect race and religion’. The laws seek to regulate marriages between Buddhist women and non-Buddhist men, to prevent forced conversions, to abolish polygamy and extra-marital affairs, and to promote birth control and family planning in certain regions of the country. The laws were passed in great part due to mobilisation of certain sections of the Buddhist monastic order. This article investigates the rationale behind the laws and how Buddhist activists succeeded in their legal agenda.
Acknowledgements
I thank the Norwegian Centre for Human Rights (the Vietnam Programme and the Oslo Coalition for Freedom of Religion, or Belief) for support of this study. I would also like to thank Solveig Igesund for fieldwork assistance and two anonymous reviewers for crucial contributions.
Notes
1 C Davenport, ‘Human Rights and the Democratic Proposition’ (1999) 43(1) Journal of Conflict Resolution 92.
2 Research has failed to verify a consistent relationship between religious freedom and democracy as democratic states engage in various forms of legal regulation of religion: see J Fox and D Flores, ‘Religions, Constitutions, and the State: A Cross-National Study’ (2009) 71(4) Journal of Politics 1499.
3 This positive trend is also noted by UN Special Rapporteur to Myanmar, Yanghee Lee: see UN Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar’ A/HRC/31/71, 18 March 2016.
4 International election observer reports highlight structural problems such as the constitutional provision which reserves 25% of the seats to the military (giving it a de facto veto over constitutional reform), the disenfranchisement of the Rohingya population and that the security situation in several ethnic minority areas prevented people from casting their vote: see ‘Preliminary Statement’, European Union Election Observation Mission Myanmar, General Elections, 2015’ (10 November 2015) <http://eeas.europa.eu/archives/eueom/missions/2015/myanmar/index_en.htm> accessed 29 March 2016.
5 For more detail on Myanmar’s legal system, see N Cheeseman, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (CUP 2014); M Crouch and T Lindsey, Law, Society and Transition in Myanmar (Bloomsbury 2014).
6 For example, the Wireless Telegraphy Act (1934), the Printer and Published Registration Act (1962) and the Law Relating to the Forming of Organizations (1988).
7 UN Office of the High Commissioner, ‘UN Myanmar Rights Expert: Backtracking on Democratic Space Gains Momentum in Election Year’ press release 19 January 2015 <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15494&LangID=E#sthash.iH8eBNGS.dpuf> accessed 24 January 2017.
8 J Anderson, Religious Liberty in Transitional Societies: The Politics of Religion (CUP 2003).
9 W Sullivan, E Hurd, S Mahmood and P Danchin (eds), The Politics of Religious Freedom (University of Chicago Press 2015).
10 A Gill, The Political Origins of Religious Liberty (CUP 2008).
11 J Finucane and M Feener, Proselytizing and the Limits of Religious Pluralism in Contemporary Asia (Springer 2014).
12 P Danchin, ‘Of Prophets and Proselytes: Freedom of Religion and the Conflict of Rights in International Law’ (2008) 49(2) Harvard International Law Journal 249, 252.
13 India has a history of anti-conversion legislation, but linked to the rise of Hindu nationalism in the 1990s, four more states adopted similar legislation: see CS Adcock, The Limits of Tolerance: Indian Secularism and the Politics of Religious Freedom (OUP 2014).
14 I Frydenlund, ‘Particularist Goals through Universalist Means: The Political Paradoxes of Buddhist Revivalism in Sri Lanka’ in H Kawanami (ed), Buddhism and the Political Process (Palgrave McMillan 2016); B Schontal, ‘Securing the Sasana through Law: Buddhist Constitutionalism and Buddhist-Interest Litigation in Sri Lanka’ (2016) 50(6) Modern Asian Studies 1; M Hertzberg, ‘The Rhetorical Shadows of the Anti-Conversion Bill: Religious Freedom and Political Alliances in Sri Lanka’ (2016) 34(3) Nordic Journal of Human Rights 189.
15 For details on such conversion controversies in Muslim majority countries in the region, see Finucane and Feener (n 11).
16 Schontal (n 14).
17 Islamic missionary movements like the Tablighi Jemaat approach fellow Muslims, not followers from other religions.
18 UN General Assembly, International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS vol 171.
19 B Schontal and T Ginsburg, ‘Setting an Agenda for the Socio-Legal Study of Contemporary Buddhism’ (2016) 3(1) Asian Journal of Law and Society 1.
20 Control of Population and Health Care Law No 28/2015; the Religious Conversion Law (Conversion Law) No 48/2015; the Myanmar Buddhist Women Special Marriage Law No 50/2015 (Marriage Law); the Monogamy Law No 54/2015.
21 M Crouch, ‘Promiscuity, Polygyny, and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar’ (2016) 3(1) Asian Journal of Law and Society 85.
22 N Kyaw, ‘Islamphobia in Buddhist Myanmar: The 969 Movement and Anti-Muslim Violence’ in M Crouch (ed), Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging (OUP 2016).
23 M Walton, M McKay and K Kyi, ‘Women and Myanmar's “Religious Protection Laws”’ (2015) 13(4) The Review of Faith and International Affairs 36.
24 All interviews were carried out in English, or with Burmese-English translation.
25 Interview with women's rights activist (anonymous), Yangon, 28 May 2015.
26 Interview with Dr Nyan Zaw, Myanmar National Human Rights Commission member, Yangon, 26 May 2015.
27 Published in The New Light of Myanmar (Yangon, 17 September 1993).
28 Thus, a distinction has to be made between liberalisation and democratisation: see J Linz and A Stepan, Problems of Democratic Transition and Consolidation (Johns Hopkins University Press 1996) 3.
29 Buddhism was established as state religion in 1961, but this changed again with the 1962 military coup. The 1974 Constitution did not recognise Buddhism as having a special place.
30 Constitution of the Republic of the Union of Myanmar (2008).
31 Schontal (n 14).
32 Constitution, art 121.
33 Constitution, art 392 (a).
34 Political Parties Registration Law No 2/2012, art 6(d).
35 J Fox, ‘Out of Sync: The Disconnect Between Constitutional Clauses and State Legislation on Religion’ (2011) 44(1) Canadian Journal of Political Science 59.
36 Ministry of Religious Affairs and Culture, ‘Objectives' Department of Religious Affairs website <www.mora.gov.mm/mora_department1.aspx> accessed 26 January 2017.
37 D Williams, ‘What's So Bad About Burma's 2008 Constitution? A Guide for the Perplexed’ in Crouch and Lindsey (n 5) 117–140.
38 See e.g. Report by the Chin Human Rights Organisation, ‘“Threats to Our Existence”: Persecution of Ethnic Chin Christians in Burma’ (September 2012) Canada, available at http://www.chro.ca/images/stories/files/PDF/Threats_to_Our_Existence.pdf.
39 Interview, Yangon, 27 May 2015.
40 N Cheeseman, Opposing the Rule of Law. How Myanmar's Courts Make Law and Order (CUP 2014) 111.
41 The 1982 Myanmar Citizenship Law, Chapter II, section 3 reads: ‘Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories (…) from a period anterior to 1185 B.E., 1823 A.D. are Burma citizens.’ Thus, the Law does not explicitly strip the Rohingya population of citizenship.
42 ‘Composition of the Different Ethnic Groups under the 8 Major National Ethnic Races in Myanmar’, list made available at the website of the Embassy of Myanmar, Brussels, at http://www.embassyofmyanmar.be/ABOUT/ethnicgroups.htm, accessed 15 August 2016.
43 The list is partly built on the British linguistic classification system from the 1931 census. The UN makes a short reference to a set of ‘Procedures’ from 1983 to the 1982 Law, most probably in connection to the 1983 census. See ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar’, Report of the United Nations High Commissioner for Human Rights, 20 June 2016, A/HRC/32/18 (n 1). However, such ‘Procedures’ are not mentioned in Myanmar legal libraries or in existing research literature.
44 Y Mon, 'Chinese minority to get ‘Bamar’ designation' Myanmar Times (Yangon, 30 March 2016) http://www.mmtimes.com/index.php/national-news/19717-chinese-minority-to-get-bamar-designation.html, accessed 10 June 2016.
45 It is to be noted that it remains unclear if the race and religion laws apply to non-citizens, for example the Rohingyas.
46 Crouch, ‘Promiscuity, Polygyny’ (n 21) 99.
47 Interview, trans English to Burmese, Mandalay, 5 June 2015.
48 Kyaw (n 22) 191.
49 Interestingly, the Young Men's Buddhist Association (YMBA), which was among the most important Buddhist protectionist movements under British rule, did not support the legal strategy of the MaBaTha and remained silent on this issue in public: interviews with YMBA leadership, Yangon, June 2015.
50 P Bloom, P Arikan and U Sommer, ‘Globalization, Threat and Religious Freedom’ (2014) 62 Political Studies 273; J Fox, ‘Religious Discrimination: A World Survey’ (2007) 61(1) Journal of International Affairs 47.
51 R Egretau, ‘Burmese Indians in Contemporary Burma: Heritage, Influence, and Perceptions since 1988’ (2011) 12(1) Asian Ethnicity 33.
52 M Walton and S Hayward, Contesting Buddhist Narratives: Democratization, Nationalism, and Communal Violence in Myanmar (71 Policy Studies, Honolulu: East-West Center, 2014).
53 N Htwe, ‘Nationalists Call for Ooredoo Boycott’ Myanmar Times (Yangon, 6 June 2014) <http://www.mmtimes.com/index.php/national-news/10588-nationalists-call-for-ooredoo-boycott.html> accessed 27 January 2017.
54 J Schober, Modern Buddhist Conjunctures in Myanmar: Cultural Narratives, Colonial Legacies, and Civil Society (University of Hawai’i Press 2011); A Turner, Saving Buddhism: The Impermanence of Religion in Colonial Burma (University of Hawai’i Press 2014).
55 Time Magazine (Europe, Middle East and Africa edition, 1 July 2013) 182(1) cover.
56 ‘UN condemns Myanmar monk Wirathu's “sexist” comments’, BBC (22 January 2015), http://www.bbc.com/news/world-asia-30928744, accessed 22 January 2015.
57 The exact motive behind his imprisonment remains disputed. U Wirathu himself and some of his prison inmates claim that the reason was internal monastic disputes, and that anti-Muslim violence was just a pretext to remove internal opposition: interviews, Bangkok, April and Yangon, June 2015.
58 Interview with U Wirathu, Mandalay, 5 June 2015, trans Burmese to English.
59 This is, however, only partly true as the marriage law relies heavily on the 1954 Law, as previously discussed. Also, it should be noted that the monks approached the retired lawyer U Ye Khaung Nyint to draft short drafts of the Marriage Bill and the Conversion Bill. To Nyint, assisting the monks was a meritorious religious act: see J Carroll, ‘The Man Who Wrote Ma Ba Tha's “Race and Religion” Laws’, Frontier Myanmar (Yangon, 10 October 2015) http://frontiermyanmar.net/en/interview/the-man-who-wrote-ma-ba-thas-race-religion-laws> accessed 27 January 2017.
60 The information on the early history of the MaBaTha is based upon interviews with U Maung Chen, MaBaTha secretary, chief organiser and editor of two of their magazines. The interview took place at the MaBaTha Headquarters, Insein, 27 May 2015.
61 ‘10-Point Declaration’ (in Burmese) dated 15 January 2014. On file with author.
62 The Rohingyas are denied citizenship, but were temporarily entitled so-called ‘White cards’, which allowed them to participate in the 2010 and 2012 elections.
63 Then referred to as the ‘Marriage Act (Emergency) For Burmese-Buddhist Women’. On file with author.
64 Interview, U Maung Chen (n 60).
65 Order No 19/2014. The commission was made up of officials from the Ministry of Religious Affairs, the Ministry of Immigration and Population Affairs as well as lawyers, historians, and others.
66 Attorney General's Office, ‘Inviting Suggestions from Monks and Lay People on “Religious Conversion Law (draft)”’ undated English draft text.
67 Interview, U Maung Chen (n 60).
68 ibid.
69 Exactly how the MPs voted is hard to determine as an anonymous electronic voting system is used. I therefore rely on interviews with ANP and USDP MPs, and newspaper articles to substantiate this claim. See e.g. N Zaw, ‘Lower House Approves Two ‘Race and Religion’ Bills’ The Irrawaddy (Chiang Mai, 20 March 2015) <www.irrawaddy.com/news/burma/lower-house-approves-two-race-and-religion-bills.html> accessed 26 January 2017.
70 W Toe, ‘Myanmar's Parliament Approves Controversial Interfaith Marriage Law’ (Washington, Radio Free Asia, 7 July 2015) <www.rfa.org/english/news/myanmar/parliament-approves-controversial-interfaith-marriage-law-07072015152051.html> accessed 26 January 2017
71 Again, how the military MPs voted is hard to determine as an anonymous electronic voting system is used.
72 R Egretau, ‘Soldiers as Lawmakers? Assessing the New Legislative Role of the Burmese Armed Forces (2010-15)’ in R Egretau and F Robinne (eds), Metamorphosis: Studies in Social and Political Change in Myanmar (National University of Singapore Press 2015) 15–42.
73 Interview in English with U Ye Htut, Oslo, 15 June 2016.
74 ibid.
75 Joint statement from 180 organisations submitted to Parliament called ‘Comments from Women's Organisations/Networks and Civil Society on the 4 Bills to Protect Nation’ (English version) on file with author.
76 For example, four UN special rapporteurs sent a letter to President Thein Sein to withdraw the laws: OHCHR, ‘Mandates of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on freedom of religion or belief; the Special Rapporteur on the situation of human rights defenders; the Special Rapporteur on minority issues; and the Special Rapporteur on the situation of human rights in Myanmar’ (19 June 2014) MMR 4/2014. Strong criticism was also voiced by Amnesty International, Human Rights Watch and the International Commission of Jurists, who all emphasised the laws’ severe implications for inter-communal relations, in addition to non-compliance with international human rights standards.
77 ‘Comments from Women's Organisations’ (n 75).
78 The notable exception being the Catholic Church whose international connections provided strength and protection. Cardinal Charles Bo, for example, opposed the laws in public at several occasions.
79 Focus group interviews with inter-faith activists in Yangon (May) and Mandalay (June) 2015.
80 ibid.
81 At the time it was generally believed that the Muslim population had dramatically increased since the 1982 census. However, the 2014 census data (released in 2016) only show a small growth, from 3.9 to 4.3%. Department of Population, Ministry of Labour, Immigration and Population, ‘The 2014 Myanmar Population and Housing Census. The Union Report: Religion, Census Report Volume 2-C’ (Nay Pyi Taw, July 2016).
82 Interview (n 58), trans Burmese to English.
83 Requirement of conversion of people who do not belong to the People of the Book (dhimmi) is a common principle in Islamic law. However, it should be noted that who counted as non-dhimmi has not been fixed through history. In India, for example, Hindus were conceptualised as People of the Book by Mughal rulers, but only few Buddhists have been granted this status.
84 This observation is based upon interviews with Muslim civil society activists in Yangon and Mandalay, May 2015.
85 International human rights organisations are under scrutiny for their engagement with the Rohingya population, and are accused of ignoring the sufferings of Buddhists.
86 B Brac de la Perrière, ‘Ma Ba Tha: Les trois syllabes du nationalisme religieux birman’ in A Pesses and F Robinne (eds), L’Asie du Sud-Est 2015: Bilan, Enjeux et Perspectives (IRASEC 2015) 31–44.
87 A Min, ‘Human Rights Less Important Than ‘Nationalism’: Senior Monk’, Myanmar Times (Yangon, 30 August 2014) <www.mmtimes.com/index.php/national-news/11495-human-rights-less-important-than-nationalism-says-senior-monk.html> accessed 26 January 2017.
88 Lele soi (‘freedom’) and koke kiun (‘religious right’).
89 s 24(g).
90 The Burmese original refers to kokyeya (’worship’) and batha (’religion’).
91 It should be noted that outspoken atheism is very rare in Myanmar, and atheist societies operate anonymously.
92 Her story was recorded at a public meeting on 22 October 2012 and published in ‘Human Rights Violations by Human Rights Activist’, a pamphlet circulated by U Wirathu in Mandalay during 2014. Undated.
93 ‘Comments from Women's Organisations’ (n 75).
94 Walton and others (n 23).
95 Interview, Sagaing Hills, 4 May 2015, trans Burmese to English.
96 Schontal (n 14) 43.
97 Danchin (n 12).