Burma: Discriminatory Laws Could Stoke Communal Tensions

(Bangkok) - President Thein Sein of Burma should refuse to sign into law two pieces of legislation that violate fundamental rights, Human Rights Watch said today. On August 21, 2015, the joint parliament approved the Religious Conversion Bill and the Monogamy Bill, two of four contentious so-called "race and religion" laws that will entrench discrimination based on religion, and also violate internationally protected rights to privacy and religious belief.

"By passing these two draft laws, Parliament has ignored basic human rights and risks inflaming Burma's tense intercommunal relations, threatening an already fragile transition ahead of landmark elections," said Phil Robertson, deputy Asia director. "These discriminatory laws could fuel anti-Muslim sentiment, so Thein Sein should demonstrate solid leadership, stand up for rights, and refuse to sign them."

The four laws - including the Population Control Law, which became law in May, and the Interfaith Marriage Law, passed by parliament in July but as far as the government has revealed, not yet signed into law - have all been heavily promoted by the Association for Protection of Race and Religion (known by its Burmese acronym Ma Ba Tha). This nationwide organization of Buddhist monks promotes an often anti-Muslim and ultra-nationalist agenda. It was the Ma Ba Tha that first urged the government of Thein Sein to adopt the laws in late 2013.

The religious conversion bill will enable the state to regulate religious profession and conversion, a wholly unjustified state interference in the right to freedom of conscience and religion. The law will create Religious Conversion Scrutinization and Registration Boards at the township (district) level consisting of five local officials and two local elders chosen by the township administrator.

Anyone wishing to change their religion will have to be over 18 and will be required to file an application with a local board, including the reasons for the conversion. The applicant would be interviewed by at least five board members, followed by a 90-day study period for the applicant to examine the "essence of the religion, marriage, divorce, and division of property practices in that religion, and inheritance and parenting practices in that religion." If the board approves the conversion, the applicant would then get a certificate of conversion.

There are concerns that the make-up of many local boards will be predominantly ethnic Burman Buddhist officials, who may be biased against conversions from Buddhism to other religions. The conversion would only be valid when the certificate is issued - allowing the rights to marry, inheritance, and division of property to be regulated according to the rules and practices of the new religion. The local board would forward all information it collects about the person to national religion, immigration, and identification agencies, interfering with their right to privacy.

The law also prohibits converting with the intent to "insult, disrespect, destroy, or abuse a religion" and bars anyone from bullying or enticing another person to convert or deterring them from doing so. Punishments for breaching the law would range from six months to two years in prison, depending on the violation.

The law is directly incompatible with the Universal Declaration of Human Rights' article 18, which states, "Everyone has the right to freedom of thought, conscience, and religion" and goes against Burma's own 2008 Constitution, which also guarantees freedom of religion.

"Allowing local officials to regulate private faith so closely is a pathway to repression of religious freedom," Robertson said. "In their zeal to protect Buddhism, the authors of these laws are imperiling other religious minorities, including Christians, Hindus, and especially Burma's persecuted Muslim minority."

The Monogamy Bill, taken together with the other three 'race and religion' laws, is also problematic. The law states that it applies to everyone living in Burma and Burmese citizens living abroad, but also foreign nationals married to Burmese citizens while living in Burma. The law prohibits a married person from entering a second marriage or "unofficially" living with another person while still married. It sets out punishments for violations, including loss of property rights upon divorce for the spouse who is guilty of breaking the monogamy law. The law also includes criminal penalties of up to seven years in prison and a fine under Section 494 of Burma's Penal Code.

The Monogamy Bill is intended to target religious minorities where polygamy and extra-marital affairs are perceived to occur more frequently. While outlawing polygamy is compatible with the right to marry protected under international law, legal sanctions against polygamy already exist in the Penal Code, making those sections of the Monogamy Bill redundant. On the other hand, legal provisions that criminalize consensual sexual relations between adults, regardless of marital status, violate the right to privacy as outlined in article 12 of the Universal Declaration of Human Rights. Furthermore, laws criminalizing consensual sex disproportionately impact women. For example, a rape victim may be deterred from filing a criminal complaint if the failure to win a conviction puts her at risk of prosecution for adultery.

The United Nations Working Group on Discrimination against Women in Law and in Practice, which is tasked with identifying good practice on the elimination of laws that discriminate against women, stated in 2012 that adultery should not be a criminal offence and noted its often disproportionate impact on women.

Many of Burma's independent organizations have roundly condemned the four bills. Groups have issued public statements warning that enforcing the laws could exacerbate religious tensions and threaten the rights of women and religious minorities.

The international community, including the European Union in a statement in January and another in July criticizing the marriage law, and United Nations Special Rapporteurs, including the present rapporteur on situation of human rights in Myanmar, Yanghee Lee, have warned that the bills breach Burma's commitments to international human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRD). Critics of the bills have been attacked by senior members of the Ma Ba Tha, with some Burmese civil society leaders subject to violent threats and being branded "traitors."

"Heading into the November elections, Burma's parliament is passing laws that fail human rights tests, in an opaque fashion, bringing into question lawmakers' commitment to democracy and respect for rights," Robertson said. "Burma's main donors - Japan, the European Union, the UK, and the US - should publically condemn these laws and call for their immediate repeal."