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Burma

Section 1. Respect for the Integrity of the Person, Including Freedom from:

e. Denial of Fair Public Trial

The law calls for an independent judiciary, although institutional corruption sometimes characterized the judicial system and appeared at times under the de facto control of the military and government. According to studies by civil society organizations, all level of officials received payments at all stages in the legal process for purposes ranging from routine matters, such as access to a detainee in police custody to fixing the outcome of a case. As in the previous year, the government did not take legal action against judges for corruption.

The government repealed or amended many of the laws used historically to deny individuals a fair public trial. The government repealed the Emergency Provisions Act in October. Also in October the government amended the Peaceful Assembly and Processions Act. Other laws remained on the books, including the Habitual Offenders Act, the Electronic Transactions Law, the Television and Video Act, the Law on Safeguarding the State from the Danger of Subversive Elements, and section 505(b) of the penal code, used to censor or prosecute public dissent. Provisions in the laws that allow the government to manipulate the courts for political ends remained in place, but the government used them less frequently than in previous years. It continued occasionally to use some of these laws to criminalize peaceful dissent and deprive citizens of due process and the right to a fair trial.

On January 22, the government sentenced Kachin activist Patrick Kum Jaa Lee to six months in prison for sharing a photograph on Facebook that the military deemed was defamatory. Authorities arrested Patrick in October 2015 and charged him under the 2013 Telecommunications Law. The government released him on April 1 after he finished serving his sentence in Insein Prison.

The government released Naw Ohn Hla and five other activists in April after they finished serving their sentence for protesting a land dispute in front of the Chinese embassy in Rangoon.

TRIAL PROCEDURES

The law provides for the right to a fair public trial, but it also grants broad exceptions, in effect allowing the government to violate these rights at will. In ordinary criminal cases, the court generally respected some basic due process rights such as the right to an independent judiciary, public access to the courts, and the right to a defense and an appeal. Defendants do not enjoy the rights to presumption of innocence; to be informed promptly and in detail of the charges against them; to be present at their trial; to free interpretation; or, except in capital cases, to consult an attorney of their choice or have one provided at government expense. There is no right to adequate time and facilities to prepare a defense, but defense attorneys in criminal cases generally had 15 days to prepare for trial. Defendants have the right to appeal judgments, but in most appellate hearings, the original verdicts were upheld. No legal provision allows for the compelled testimony or confessions of guilt by defendants to be used in court; nonetheless, authorities reportedly engaged in both. According to local human rights lawyers, judicial violations of many of these rights and standard trial procedures declined under the new government.

Ordinary criminal cases were open to the public. While there is no right to confront witnesses and present evidence, defense attorneys could sometimes call witnesses, conduct cross-examination, and examine evidence. Defendants did not have the right to access government-held evidence, but sometimes they received access. Prodemocracy activists generally appeared able to retain counsel, but defendants’ access to counsel was often inadequate. There were reports of the authorities not informing family members of the arrests of persons in a timely manner, not telling them of their whereabouts, and often denying them the right to see prisoners in a timely manner.

Concerns regarding judicial impartiality remained, and under the new government, NGOs and lawyers reported that interference in criminal trials to dictate verdicts became less common.

The government retained the ability to extend prison sentences under the law. The minister of home affairs has the authority to extend a prison sentence unilaterally by two months on six separate occasions, for a total extension of up to one year.

POLITICAL PRISONERS AND DETAINEES

The government released hundreds of political prisoners during the year. As of October only a small number of political prisoners remained in prison throughout the country, none convicted since the new government came to power. Two separate protests related to labor and land disputes in May led to more than 150 of the arrested political detainees during the year (see section 7). The government released most after a few days without conviction, while 15 individuals remained in detention awaiting trial as of December. As of December, 66 political detainees were facing trial on various charges. This number did not include detainees in Rakhine State, estimated to be in the hundreds.

Many released political prisoners experienced significant restrictions following their release, including an inability to resume studies undertaken prior to incarceration, secure travel documents, or obtain other documents related to identity or ownership of land. Under the code of criminal procedure, released political prisoners faced the prospect of serving the remainder of their sentences if rearrested for any reason.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

No specific mechanisms or laws provide for civil remedies for human rights violations; however, complainants may use provisions of the penal code and laws of civil procedure to seek civil remedies. Individuals and organizations may not appeal an adverse decision to regional human rights bodies.

PROPERTY RESTITUTION

Under the constitution the state is the owner of all land; however, the 2012 Farmland Law allows for registration and sales of private ownership rights in land.

In January the new government formally endorsed a new land use policy following public consultations dating to 2014. The new policy emphasizes the recognition, protection, and registration of legitimate land tenure rights of smallholders, communities, ethnic nationalities, women, and other vulnerable groups. It also includes the recognition, protection, and ultimate registration of customary tenure rights, which were not formerly legally recognized. The law allows the government to declare land unused and assign it to foreign investors or designate it for other uses. There is no provision for judicial review of land ownership or confiscation decisions under either law; administrative bodies subject to political control by the national government make final decisions on land use and registration. Civil society groups raised concerns that the laws do not recognize rights in traditional collective land ownership and shifting cultivation regimes, which are particularly prevalent in upland areas inhabited by ethnic minority groups. Acquisition of privately owned land by the government remained governed by the 1894 Land Acquisition Act, which provides for compensation when the government acquires land for a public purpose. Civil society groups criticized the lack of safeguards in the law to provide payment of fair market compensation.

Researchers had concerns that land laws, including the Farmland Law and the Vacant, Fallow, and Virgin Land Law, facilitate land confiscation without providing adequate procedural protections. Parallel legal frameworks and traditional forms of land tenure in areas controlled by ethnic groups in Kachin, Mon, Karen, and Shan States may not have formal legal recognition under the land laws.

Parliament’s Land Acquisition Investigation Commission did not have legal authority to implement and enforce its 2013 report recommendations to return thousands of acres of confiscated but unused land or provide compensation to farmers from whom the government took the land, and media sources reported little progress in returning the confiscated lands. The Vacant, Fallow, and Virgin Land Law requires that land be returned if not used productively within four years, but civil society groups reported that land taken by the military was left unused for long periods.

Early in the year, the government disbanded the Land Use Management Central Committee created in 2014 by then president Thein Sein and replaced it with the Land Acquisition Reinspection Central Committee, with subcommittees at the state and regional, district, township, and village tract levels to continue addressing land grabbing.

There were no specific reports of returns of confiscated land throughout the year.

Under the former military regime, various government agencies–including the Myanmar Oil and Gas Enterprise, the Myanmar Ports Authority, and the army–frequently confiscated land from farmers and rural communities, generally without due process or adequate compensation. Following the attacks in October in northern Rakhine State, hundreds of homes were burned, with some reports alleging the government was the perpetrator and others alleging local Rohingya groups were to blame. The government established an investigation commission in November to acquire facts about such claims. The government did not announce plans for assistance to affected communities.

On December 22, the government sentenced 72 Shan State farmers to one month in prison for “trespassing” on land that traditionally, under customary law, belonged to those farmers. The Tatmadaw Eastern Command, which also claimed the land, pressed charges against the farmers after they rejected a compromise by which the military would formally own the land but the farmers could use it with their permission.

Section 2. Respect for Civil Liberties, Including:

a. Freedom of Speech and Press

The constitution provides that “every citizen shall be at liberty in the exercise of expressing and publishing freely their convictions and opinions,” but it contains the broad and ambiguous caveat that exercise of these rights must “not be contrary to the laws enacted for national security, prevalence of law and order, community peace and tranquility, or public order and morality.” Threats against and arrests of journalists decreased.

Freedom of Speech and Expression: Authorities arrested, detained, convicted, and imprisoned citizens for defaming religion and expressing political opinions critical of the government, generally under the charges of protesting without a permit or violating national security laws. Prior to the government amending the law in October, some charged for demonstrating without a permit faced hundreds of court hearings and significant delays in reaching a verdict. Many individuals in urban areas, however, reported far greater freedom of speech and expression than in previous years.

On November 3, the government arrested NLD official U Myo Yan Naung Thein and charged him with defamation under the Telecommunications Law for posting comments critical of the military’s response in northern Rakhine State on Facebook in October. They denied his bail in multiple hearings as he spoke out against the arbitrary nature of the Telecommunications Law. His trial was pending at the end of the year, and he remained in detention.

In April the government pardoned hundreds of political prisoners, including Htin Lin Oo, an NLD official sentenced in June 2015 to two years in prison for religious defamation. Also released were Htin Kyaw, a well-known democratic activist who spent more than a decade in prison, and five journalists from Unity Journal, each sentenced to 10 years in prison in 2014.

Although freedom of speech generally expanded, some persons remained wary of speaking openly about politically sensitive topics due to monitoring and harassment by security services. Police continued to monitor politicians, journalists, writers, and diplomats. Journalists complained of the widespread practice of government informants attending press conferences and other events, which they said intimidated reporters and the events’ hosts. Informants demanded lists of hosts and attendees.

In October and November, instances of media self-censorship and suppression rose in connection with violence in northern Rakhine State. Media access was restricted due to the continuing security operation. Reporters and media executives were reportedly fired for printing stories critical of the military’s actions in Rakhine.

Press and Media Freedoms: Independent media were active and increasingly able to operate with fewer restrictions. The government permitted the publication of privately owned daily newspapers. As of September authorities approved 27 dailies, seven of which were available for purchase.

Local media could cover information about human rights and political issues, including the peace process and democratic reform. The government generally permitted the media to cover protests and civil conflict, topics not reported widely in state-run media. Self-censorship continued, however, particularly on issues related to Buddhist extremism, the military, and the situation in Rakhine State. The government continued to use visas to control foreign journalists, who reported visa validities ranged from 28 days to six months. The exception to this procedure was in northern Rakhine from October through December, where the military prevented media access under the auspice of security concerns.

The military continued to practice zero-tolerance regarding perceived misreporting by the media. Authorities charged Wai Phyo, chief editor of Daily Eleven newspaper for defamation in a Sagaing Region court in June. A soldier sued the newspaper because of an April 2015 article that included a photograph of the soldier while noting an excursion beyond enemy lines by the military. The newspaper issued a clarification on May 4, after the army filed a complaint through the Myanmar Press Council (MPC), and sent copies of the letter to the commander in chief and to the chairperson of the army’s information division. Daily Eleven said the army and the MPC did not respond, and the military subsequently sued the journalist a year later.

On October 31, the Myanmar Times newspaper fired journalist Fiona Macgregor allegedly for her reporting on allegations of human rights abuses in northern Rakhine State. Her dismissal followed criticism from President Office Spokesperson Zaw Htay on his Facebook page on October 28, following articles written by Macgregor and published in the Myanmar Times on October 27 and 28. Zaw Htay asserted MacGregor cited faulty sources and did not contact government officials to give them a chance to deny the allegations. In her reporting, however, MacGregor cited other outlets that quoted Zaw Htay denying the charges that abuse and rape had taken place in northern Rakhine State. Leadership at the Myanmar Times cited a rule in the employee handbook that staff could be fired for “denigrating the reputation of the paper” as reason for the dismissal but did not speak publicly about the firing.

Radio and television were the primary media of mass communication. Compared with previous years, circulation of independent news periodicals expanded outside of urban areas. Several print publications maintained online news websites that were popular among persons with access to the internet. The government and government-linked businesspersons controlled the content of the eight privately or quasi-governmentally owned FM radio stations.

The government continued to monopolize and control all domestic television broadcasting. It offered six public channels–five controlled by the Ministry of Information and one controlled by the armed forces. The government allowed the general population to register satellite television receivers for a fee, but the cost was prohibitive for most persons outside of urban areas. In August the ministry announced it would allow five media outlets to apply for television channel licenses as private broadcasters. Many media outlets, however, reported the costs of applying and maintaining a television channel were prohibitive.

Violence and Harassment: Violence and harassment of journalists dropped precipitously following the March transition to the new government. Nationalist groups, however, continued to target journalists who spoke out regarding intercommunal and Rakhine State issues. Officials continued to monitor journalists in various parts of the country.

Censorship or Content Restrictions: Although generally not enforced, laws prohibit citizens from electronically passing information about the country to media located outside the country, exposing journalists who reported for or cooperated with international media to potential harassment, intimidation, and arrest. There were no reports of overt prepublication censorship of press publications, and the government allowed open discussion of sensitive political and economic topics, but incidents of legal action against publications continued to raise concern among local journalists and led to some self-censorship.

On June 14, the Pazundaung Township Court in Yangon Region sentenced four individuals to one year in prison for publishing information that could cause public fear or alarm after they printed a calendar that stated “Rohingya” are an ethnic minority in the country. A fifth man charged in the case remained in hiding. Police arrested the five individuals in November 2015 after fining them approximately 1.1 million kyats ($830) each for breaking the 2014 Printing and Publication Law, which bars individuals from publishing materials that could damage national security and law and order. The court dropped the charges against the owner of the printing house.

In May 2015 the Ministry of Information filed a lawsuit against five editorial staff members of the Daily Eleven newspaper for allegedly defaming the ministry in a 2014 story that criticized the ministry for paying a suspiciously high price for a printing press. Editors of the Daily Eleven disputed the allegation and suggested that the government took legal action to stifle criticism. In June the ministry filed a contempt of court complaint against the publisher and 16 editorial employees, claiming bias in the newspaper’s coverage of a court testimony given by a ministry official in the defamation case. The cases were underway as of December, and the government continued to litigate them through the end of the year.

On April 17, the government released and granted a presidential pardon to the five journalists of the Unity Journal newspaper whom the government had convicted in 2014 for breaching the 1923 State Secret Act.

Libel/Slander Laws: Elements of the military sued journalists on multiple occasions for what they perceived as defamation or inaccurate reporting. The government normally dropped the cases after a lengthy court process. For example, in June the military sued 7Day Daily newspaper, accusing the media outlet of trying actively to undermine the authority of the military with a story that quoted former parliamentary speaker and retired general Thura Shwe Mann urging his colleagues from the military to work with the new government. Only after mediation by the MPC and 7Day Daily’s published apology did the military drop the suit.

Individuals also used the Telecommunications Law to sue reporters for perceived defamation. For example, the chief minister of Rangoon, Phyo Min Thein, sued Eleven Media Group chief executive U Than Htut Aung and the editor in chief, U Wai Phyo, for defamation in November. The chief minister argued that an article insinuating he was corrupt due to an expensive wristwatch amounted to defamation.

INTERNET FREEDOM

The government did not restrict or disrupt access to the internet or censor online content. The government reportedly monitored internet communications under questionable legal authority, however, and used defamation charges to intimidate and detain some individuals using social media to criticize the military. There were also some instances of authorities intimidating online media outlets and internet users. Social media continued to be a popular forum to exchange ideas and opinions without direct government censorship. Independent research estimated internet penetration at 22 percent by fixed or mobile connection, with the number of active internet users growing by more than 350 percent between March 2015 and August. The current Freedom on the Net report issued by international NGO Freedom House rated internet freedom in Burma not free, but the rating increased slightly from previous years.

On February 10, the government charged Hla Hpone (accused of running the “Kyat Pha Kyi” Facebook page), under the Telecommunications Law for allegedly doctoring images of President Thein Sein and Commander in Chief Min Aung Hlaing.

Chaw Sandi Tun and Patrick Kum Ja Lee were both released after serving their six-month sentences for posting photographs on their personal Facebook accounts that authorities deemed as defaming the military.

ACADEMIC FREEDOM AND CULTURAL EVENTS

There were fewer government restrictions on academic freedom and cultural events. In its first month in office, the new government released more than 80 education activists who had been in custody for more than a year, following protests over limitations on academic freedom and association in the 2014 National Education Law. The Ministry of Education and universities demonstrated an increased willingness to collaborate with international institutions to host educational and cultural events, as well as to expand educational opportunities for undergraduate students. For example, the Yangon University of Education collaborated with the international community to hold film screenings and discussions on educational issues, while other universities worked with international institutions to allow foreign English-language instructors to teach their students full-time.

The government restricted political activity and freedom of association on university campuses by officially banning political activity on university campuses and student unions. As in previous years, the All Burma Student’s Union was unable to register but participated in some activities through informal networks.

There was one reported incident of the government restricting cultural events. In June the Motion Picture Classification Board banned the showing of a film entitled Twilight Over Burma, which was due to open at an international human rights festival in Rangoon. The board cited concerns that the film, which tells the story of an Austrian woman who married a Shan prince and who was later arrested during the 1962 coup d’etat, could have threatened the peace process underway with ethnic armed groups. Local and international human rights organizations criticized the censorship as a violation of freedom of speech.

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