မစၥတာ ကင္တားနား ျမန္မာႏိုင္ငံ လူ႔အခြင့္အေရး ေနာက္ဆံုးအေျခအေန ကို ကုလသမဂၢထံအစီရင္ခံစာ.....၂၃ ေအာက္တိုဘာ ၂၀၁၁

United Nations A/66/365
General Assembly Distr.: General
16 September 2011
Original: English
11-50111 (E) 300911
*1150111*
Sixty-sixth session
Agenda item 69 (c)
Promotion and protection of human rights: human rights situations
and reports of special rapporteurs and representatives
Situation of human rights in Myanmar
Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the
General Assembly the report of the Special Rapporteur on the situation of human
rights in Myanmar, Tomás Ojea Quintana, in accordance with paragraph 30 of
General Assembly resolution 65/241.
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Report of the Special Rapporteur on the situation of human
rights in Myanmar
Summary
This is a key moment in Myanmar’s history and there are real opportunities for
positive and meaningful developments to improve the human rights situation and
deepen the transition to democracy. The new Government has taken a number of
steps towards these ends. Yet, many serious human rights issues remain and they
need to be addressed. The new Government should intensify its efforts to implement
its own commitments and to fulfil its international human rights obligations. The
international community needs to continue to remain engaged and to closely follow
developments. The international community also needs to support and assist the
Government during this important time. The Special Rapporteur reaffirms his
willingness to work constructively and cooperatively with Myanmar to improve the
human rights situation of its people.
Contents
Page
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. Assessing the transition to democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III. The situation of ethnic minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IV. Human rights situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Prisoners of conscience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Conditions of detention and treatment of prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. Other issues related to civil and political rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
D. Economic, social and cultural rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
V. Truth, justice and accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
VI. International cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
VII. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
VIII. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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I. Introduction
1. The mandate of the Special Rapporteur on the situation of human rights in
Myanmar was established by the Commission on Human Rights in its resolution
1992/58 and extended most recently by the Human Rights Council in its resolution
16/24. The current Special Rapporteur, Tomás Ojea Quintana (Argentina), officially
assumed the function on 1 May 2008.
2. The present report is submitted pursuant to Human Rights Council resolution
16/24 and General Assembly resolution 65/241, and covers human rights developments
in Myanmar since the Special Rapporteur’s fourth report to the Council in March 2011
(A/HRC/16/59) and his report to the Assembly in September 2010 (A/65/368).
3. The first regular session of Myanmar’s new national Parliament was convened
on 31 January 2011 and ended on 23 March. On 30 March, the State Peace and
Development Council was officially dissolved and power was transferred to the new
Government; the new President, two Vice-Presidents and 55 other cabinet members
were sworn into office in an inauguration ceremony in Nay Pyi Taw. Myanmar thus
reached the last step of its seven-step road map to a “genuine, disciplined, multi-party
democratic system”.
4. President Thein Sein’s inaugural speeches to Parliament on 30 March, to
cabinet members and Government officials on 31 March and to chief ministers of
regional and State governments on 6 April set out a number of commitments to
reform and outlined the new Government’s public policy agenda. Of note, the
safeguarding of fundamental human rights and freedoms, respect for the rule of law
and an independent and transparent judiciary, respect for the role of the media, good
governance, the protection of social and economic rights, the development of
infrastructure and delivery of basic services, including in ethnic areas, and the
improvement of health and education standards, were among the priorities identified.
5. From 16 to 23 May 2011, the Special Rapporteur travelled to Bangkok, Chiang
Mai and Mae Hong Son, in Thailand, to meet with various stakeholders, including
representatives of ethnic minority groups, community-based and civil society
organizations, diplomats and other experts. The Special Rapporteur thanks the
Government of Thailand for facilitating his visit, including a meeting with the
Minister for Foreign Affairs, Mr. Kasit Piromya.
6. From 21 to 25 August 2011, following an exchange of communications with
the Government arising from his previous visit, in February 2010, the Special
Rapporteur conducted his fourth mission to Myanmar at the invitation of the
Government. In Nay Pyi Taw, the Special Rapporteur met with the Minister for
Foreign Affairs, the Minister for Home Affairs, the Minister for Defence, the Deputy
Chief of Police, the Minister for Social Welfare, Relief and Resettlement, who also
holds the position of the Minister for Labour, the Attorney General, the Chief
Justice of the Supreme Court, the Union Election Commission and with some of the
presidential advisers. He also met the Speakers and members of the Pyithu and
Amyotha Hluttaws, including representatives of ethnic political parties, and
observed the second regular session of the Pyithu Hluttaw. He delivered a lecture on
international human rights at a training course organized by the Ministry of Home
Affairs, which was attended by officials of different ministries and townships. In
Yangon, the Special Rapporteur met Daw Aung San Suu Kyi to discuss a range of
important human rights issues, conducted a visit to Insein prison, where he met with
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seven prisoners of conscience, met with representatives of civil society organizations,
former prisoners of conscience and the United Nations country team, briefed the
diplomatic community and held a meeting with director-generals of different
ministries, at the conclusion of his mission.
7. Following legislative elections, held on 7 November 2010, and the formation
of the new Government on 1 April 2011, the Special Rapporteur notes that a number
of steps have been taken that have the potential to deepen Myanmar’s transition to
democracy and to improve the human rights situation. As such, at the end of his
mission to the country, the Special Rapporteur welcomed the Government’s stated
commitments to reform and the priorities set out by President Thein Sein, which
included the protection of social and economic rights; the protection of fundamental
human rights and freedoms, including through the amendment and revocation of
existing laws; good governance and fighting corruption, in cooperation with the
people; respect for the rule of law; and an independent and transparent judiciary. He
also welcomed the President’s emphasis on the need for peace talks with armed
groups and the open door for exiles to return to the country. The Special Rapporteur
reiterates, however, that these commitments must be translated into concrete action.
8. The Special Rapporteur thanks the Government of Myanmar for its invitation
and for the cooperation and flexibility shown during his visit, particularly with
respect to the organization of his programme. In addition to the visit, he continued
to engage with the Government through meetings with its ambassadors in Geneva
and Bangkok, and through written communications.
9. These communications include a joint urgent action letter with the Special
Rapporteurs on torture and other cruel, inhuman or degrading treatment or
punishment and on the promotion and protection of the right to freedom of opinion
and expression, regarding the hunger strike by political prisoners in Insein prison,
on 1 June 2011; and a joint urgent action letter with the Chair-Rapporteur of the
Working Group on Arbitrary Detention and the Special Rapporteurs on the right to
freedom of opinion and expression, on the situation of human rights defenders, on
torture and on violence against women, its causes and consequences, on the case of
Hnin May Aung, on 21 July 2011. In addition, on 30 June 2011, the Special
Rapporteur sent a letter to the Government requesting an update on the status of the
prisoners of conscience mentioned in his previous reports.
10. The Special Rapporteur would like to thank the Office of the United Nations
High Commissioner for Human Rights (OHCHR), in particular at Geneva, Bangkok
and New York, for assisting him in discharging his mandate.
II. Assessing the transition to democracy
11. In its resolution 16/24, the Human Rights Council requested the Special
Rapporteur to make “an assessment of any progress made by the Government in
relation to its stated intention to transition to a democracy”. As a thorough
assessment may be beyond the scope of the present report, the Special Rapporteur
proposes to address a number of key issues, which, in his view, are essential features
of democratic transition in Myanmar: the functioning of key State institutions and
bodies; the situation of ethnic minorities, including ongoing tensions in ethnic
border areas and armed conflict with some armed ethnic groups; the human rights
situation; and truth, justice and accountability.
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12. The Special Rapporteur holds the view that central to any democratic
transition, anchored in important human rights principles, including participation,
empowerment, transparency, accountability and non-discrimination, is the effective
functioning and integrity of State institutions and bodies.
13. Many critics have noted that the new Government is comprised of many
officials from the previous military Government. Together with military appointees
who automatically occupy a quarter of seats, it is reported that 89 per cent of all
seats in the legislature are occupied by people with affiliations to the former
Government. Yet, the political landscape has changed. The new Government is
nominally civilian and there is an emergence of different actors and parties engaging
in the political process. Additionally, decision-making has supposedly been
decentralized to various ministries, and new institutions and bodies, such as the
National Defence and Security Council and the Supreme State Council, have been
created. These developments could further the process of transition, and they require
close observation, to see how they unfold.
14. Given their central role in any democracy, the Special Rapporteur has paid
particular attention to the establishment and functioning of the new national,
regional and State legislatures. He is encouraged that the national legislature
(comprised of the upper and lower houses — the Amyotha Hluttaw and Pyithu
Hluttaw) has begun exercising its powers within the framework of the Constitution
and notes what seems to be an opening of space for different actors and parties to
engage in the political process. For instance, Government ministers have appeared
before Parliament to answer questions, and parliamentary debates are covered by the
official media.
15. During its first regular session, important and sensitive issues relevant to the
promotion and protection of human rights were discussed, including land tenure
rights and land confiscation; the registration of associations and other local
organizations, as well as trade unions; discrimination against ethnic minorities in
civil service recruitment; the need for the teaching of ethnic minority languages in
schools in minority areas; the question of amnesty to Shan political prisoners; and the
granting of national identification cards to the Rohingya. Parliamentary committees, in
which opposition party members comprised one third of membership, were established,
including the Bill Committee, the Rights Committee, the Public Accounts Committee
and the Government’s Guarantees, Pledges and Undertakings Vetting Committee.
16. During its second regular session, which began on 22 August 2011, additional
committees, including the Fundamental Rights, Democracy and Human Rights
Committee, were formed. Important issues were also debated, including the
provision of medicines to hospitals, the rebuilding of primary schools in certain
constituencies, a private school registration bill and environmental conservation. A
member of the Pyithu Hluttaw presented motions to release all prisoners of
conscience and to deliberate the creation of a “prison bill for the twenty-first
century”, which would guarantee human dignity to all prisoners. The Speaker of the
House rejected the latter motion, stating that the Ministry of Home Affairs was
already drafting a revised prisons act.
17. While welcoming these developments, the Special Rapporteur notes the crucial
need to clarify a number of the Parliament’s practices and its internal rules and
procedures, including how often it will meet, the right of members to place items for
legislation and policy debate on the parliamentary agenda, and the precise role and
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functions of the various committees established. Also of importance is the need to
establish clear rules governing parliamentary immunity, particularly the specific
instances in which such immunity could be lifted. In this respect, he notes that laws
signed by then Senior General Than Shwe, in November 2010, stipulate that
parliamentarians will be allowed freedom of expression unless their speeches
endanger national security or the unity of the country or violate the Constitution.
The Special Rapporteur notes that these are broad categories that are not clearly
defined and could be used to limit debate. Members of Parliament should be able to
exercise their freedom of speech in the course of discharging their duties. This is
essential to ensure a properly functioning parliamentary culture — one in which
transparent, open and inclusive debates can be held on all matters of national
importance — an issue that the Special Rapporteur emphasized to the Speakers and
Members of Parliament.
18. There is also a strong need to enhance the capacity and functioning of the new
institution and its members. This was echoed by many interlocutors from different
sectors during the Special Rapporteur’s mission to Myanmar, some of whom
acknowledged a serious lack of knowledge and expertise of parliamentary practices
among Members of Parliament and the need for support by professional
parliamentarian staff. Accordingly, the Special Rapporteur strongly encourages the
Parliament to proactively seek cooperation and assistance from the international
community in this regard.
19. Another key institution is the judiciary. The Special Rapporteur observes that
the judiciary’s capacity, independence and impartiality remain outstanding issues in
Myanmar. The Special Rapporteur notes that there do not appear to be any major
structural transformations within the judiciary. The new Chief Justice was formerly
one of the justices on the Supreme Court, and the new Attorney General was
previously a Deputy Attorney General, with no further information on new
appointments to the courts.
20. Concerns regarding the functioning of the judiciary also remain. The Special
Rapporteur continues to receive information of criminal cases being heard behind
closed doors. In one case, the family of former army captain, Nay Myo Zin, was
barred from the closed court inside Insein prison, on 2 June 2011. Nay Myo Zin,
who left the army in 2005 and then volunteered for a blood donor group headed by a
member of the National League for Democracy, had been charged under the
Electronics Act. During the proceedings, judges heard a statement from Deputy
Police Commander, Swe Linn, who had conducted the search at his house, in early
April 2011, and found a document in his e-mail inbox entitled “National
Reconciliation”. On 26 August 2011, he was sentenced to 10 years in prison. According
to reports, he appears to have been subjected to torture resulting in shattered lower
vertebrae and a broken rib, which led to his attending court on a hospital stretcher.
His requests for external hospitalization have also been reportedly denied.
21. Another concern regarding fair trials is the access to counsel. During the Special
Rapporteur’s meeting with Daw Aung San Suu Kyi and the Executive Committee of
the National League for Democracy, he was informed of the problem of the arbitrary
revocation of licences of lawyers who defend prisoners of conscience. The Special
Rapporteur urges the Government to reconsider these revocations and to guarantee
the effective right to counsel and to allow lawyers to practise their profession freely.
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22. The Special Rapporteur therefore encourages the Government of Myanmar to
implement his previous recommendations on the judiciary, the fourth core human
rights element as contained in his earlier report (A/63/341), and to undertake the
series of measures proposed, in order to enhance its independence and impartiality.
These include guarantees for due process of law, especially public hearings in trials
against prisoners of conscience. These and other measures are detailed in the Basic
Principles on the Independence of the Judiciary (1985); the Basic Principles on the
Role of Lawyers (1990); the Guidelines on the Role of Prosecutors (1990); the
Procedures for the effective implementation of the Basic Principles on the
Independence of the Judiciary (1989); and the Beijing Statement of Principles of the
Independence of the Judiciary (1997). He also encourages the Government to seek
technical assistance, particularly in the area of capacity-building and training of
judges and lawyers.
23. Further, the Special Rapporteur is concerned at allegations of widespread
corruption, which, according to many sources, is institutionalized and pervasive.
According to studies by civil society organizations, payments are made at all stages
in the legal process and to all levels of officials, for such routine matters as access to
a detainee in police custody or determining the outcome of a case. As Myanmar
achieves greater economic development, there will likely be more conflicts and
contests that will need to be resolved in the courts. The Special Rapporteur therefore
welcomes the Government’s stated commitment to combating corruption and urges
that priority attention be given to the judiciary in this respect.
24. The Special Rapporteur notes that Myanmar has yet to establish complete
civilian control over the military, another key feature of democratic transition.
While there have been developments, such as changes within its leadership and the
abolishment of supra-ministerial policy committees, he notes the military’s role in
the legislatures (with military appointees occupying 25 per cent of seats), as well as
the role of the new Commander-in-Chief, General Min Aung Hlaing, who
independently administers and adjudicates all matters pertaining to the armed forces
and must be consulted by the President on appointments of the Ministers for
Defence, Home Affairs and Border Affairs (as provided in the 2008 Constitution).
Additionally, the Constitution establishes permanent military tribunals, separate
from oversight of the civilian justice mechanism, for which the Commander-in-
Chief will exercise appellate power. Further, and as outlined in greater detail below,
the Special Rapporteur has continued to receive reports of human rights violations
committed by the military, particularly in ethnic border areas. The Special
Rapporteur refers to his third core human rights element and encourages the
adoption by the military of the measures proposed, which could help to address the
above concerns.
25. The Special Rapporteur’s previous report to the Human Rights Council
(A/HRC/16/59) stated that the national elections, held in November 2010, failed to
meet international standards and highlighted restrictions on the freedoms of
expression, assembly and association. The Special Rapporteur’s previous report to
the General Assembly (A/65/368) stated that the electoral legal framework and its
implementation by the Election Commission and other relevant authorities in many
ways handicapped party development and participation, in the context of Myanmar’s
first election in over two decades. During his visit to Myanmar, the Union Election
Commission acknowledged difficulties and flaws in the conduct of the elections,
partly due to the number of polling stations and the inexperience of officials. The
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Special Rapporteur was also informed that 29 complaints had been filed with the
Election Commission, with decisions made in several cases. No further information
was provided although it was noted that such decisions had been published in the
official gazette.
26. Since the elections, the Special Rapporteur has received reports that the Union
Election Commission, despite new members appointed by Parliament, continues to
discourage the role of parties in the political process. For example, on 6 July 2011,
three elected representatives of the Rakhine Nationalities Development Party were
disqualified, by tribunal, following complaints by Union Solidarity and Development
Party representatives. The Election Commission also ordered the Rakhine
Nationalities Development Party representatives to pay compensation of 1.5 million
kyat (about US$ 1,765) each to the representatives of the Union Solidarity and
Development Party, reportedly for attacking the previous military Government and the
Union Solidarity and Development Party in their election campaigns during 2010.
27. With by-elections expected later this year for some 40 Pyithu Hluttaw, Amyotha
Hluttaw and State or regional Hluttaw seats, the Special Rapporteur strongly urges the
Union Election Commission to learn lessons from the November 2010 elections and
to play a role in ensuring that the upcoming by-elections are held in a more
participatory, inclusive and transparent manner. Complaints filed to the Election
Commission should be addressed in a timely, open and transparent manner.
Significant improvements to the electoral process would be important for
Myanmar’s democratic transition.
28. Finally, one new institution that has received positive attention is the new
Presidential Advisory Board, whose members include U Myint, as head of the Economic
Advisory Group, Sit Aye, who heads the Legal Advisory Group and Ko Ko Hlaing, who
heads the Political Advisory Group. The Special Rapporteur met with some of the
presidential advisers during his mission and held a frank and fruitful exchange of
views, including on important future initiatives. He believes that they have played a
key role in advising the President on the challenges facing Myanmar and the
priorities for reform. He therefore encourages them to continue their important
functions and to provide suggestions on how to translate or implement commitments
into concrete action.
III. The situation of ethnic minorities
29. The situation of ethnic minority groups, including armed conflict in the border
areas, presents serious limitations to the Government’s intention to transition to
democracy. In his previous reports, the Special Rapporteur highlighted concerns
regarding the systematic and endemic discrimination faced by ethnic and religious
minority groups, in particular in northern Rakhine and Chin States. Such concerns
included policies preventing the teaching of minority languages in schools, the
denial of citizenship to and restriction of movement of the Rohingya, restrictions on
the freedom of religion or belief and economic deprivation. The Special Rapporteur
has called upon the Government to ensure that ethnic minorities are granted
fundamental rights.
30. The Government has said that parliaments are the only venue for discussion on
national reconciliation. While ethnic political parties are represented in the national,
regional and State legislatures, the November 2010 electoral process excluded
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several significant ethnic and opposition groups that need to be included in any
meaningful dialogue. In addition, only a few members of ethnic political parties have
been nominated as Chief Minister of a State or region. These venues alone are therefore
not sufficient for resolving the situation of ethnic minorities. A comprehensive plan by
the Government is needed to officially engage these groups in serious dialogue and
resolve long-standing and deep-rooted concerns. More broadly, the Special
Rapporteur reiterates that ending discrimination and ensuring the enjoyment of
cultural rights for ethnic minorities is essential for national reconciliation and would
contribute to Myanmar’s long-term political and social stability.
31. The ongoing tensions in ethnic border areas and armed conflict with some
armed ethnic groups, particularly in Kachin, Shan and Kayin States, continue to
engender serious human rights violations, including attacks against civilian
populations, extrajudicial killings, sexual violence, arbitrary arrest and detention,
internal displacement, land confiscations, the recruitment of child soldiers and
forced labour and portering. The Special Rapporteur also continues to receive
disturbing reports of landmine use by both the Government and non-State armed
groups, and subsequent casualties throughout the country. For example, on 23 June
2011, a 72-year-old man lost his right foot after stepping on a landmine outside
Shwe Aye Myaing village, Kawkareik Township; and on 20 June 2011, a 21-year-old
man in Gklaw Ghaw village, Kawkareik Township, had to have his right leg
amputated after stepping on a landmine.1
32. Since 9 June 2011, armed clashes have erupted between the Myanmar military
and elements of the Kachin Independence Army, one of the largest and most powerful
armed ethnic groups, marking an end to a ceasefire in place since 1994. According to
reports, there are over 15,000 internally displaced people near the border with China,
with several thousands more hiding over the border. Their conditions are believed to
be perilous, with little aid available in the remote mountainous area. The United
Nations approached the Government, offering assistance to all those in need.
According to reliable sources, the Government’s position is that assistance is
currently provided at the local level, and when needed they will seek further
assistance from relevant partners. Allegations of abuses against civilian populations
throughout Kachin State include reports of 18 women and girls having been gangraped
by army soldiers, and of four of those victims being subsequently killed.
33. Fighting that erupted immediately after the November 2010 elections
continues in southern and central Kayin State, in areas controlled by factions of the
Democratic Karen Buddhist Army that refused to transform into border guard
forces. Recently, former units of the Democratic Karen Buddhist Army that had
agreed to the border guard forces scheme have defected and joined with the Karen
National Liberation Army. An estimated 8,000 people have been displaced in this
region, drastically increasing their vulnerability to human rights abuses, such as
arbitrary detention and arrest by the military, and risks from landmines.
34. In northern Kayin State and eastern Bago Division, internal displacement and
severe food shortages continue. Despite fewer reports of targeted attacks on
civilians, it appears that ration re-supply operations have continued as normal,
including the use of civilian porters to carry equipment and walk or drive ox-carts in
front of military trucks, to clear for landmines.
__________________
1 Karen Human Rights Group, Update No. 79, 27 June 2011.
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35. On 13 March 2011, the military broke a 22-year ceasefire with the Shan State
Army-North, with the mobilization of and attacks by 3,500 new troops. According
to community-based organizations with whom the Special Rapporteur met in Chiang
Mai, in May 2011, more than 100,000 civilians have been affected, with increases in
forced labour, forced relocation, property confiscation, arbitrary arrest, torture,
extrajudicial killings on suspicion of support for the opposition and the gang rape of
three women, details of which he finds particularly abhorrent.
36. In Mon State, authorities under the Southeast Command announced an order via
loudspeakers and posted notices in public locations in various townships, to members of
ceasefire groups, to turn in their weapons to police stations or Military Affairs Security
offices by 3 July 2011. However, no weapons were reported to have been handed over.
37. The Special Rapporteur welcomes President Thein Sein’s commitment to keep
the door open to peace and his statement of 17 August 2011 on the need for peace talks
with armed groups. He notes, in this respect, Notification 1/2011, issued on 18 August
2011, inviting armed groups to peace talks. He also welcomes as a first step the
establishment by Parliament of the Committee for Eternal Stability and Peace in the
Union of Myanmar, on 31 August 2011, which aims to mediate between the
Government and ethnic armed groups. He urges the Government to accelerate
efforts towards finding a durable political resolution rather than a military solution
to the complex undertaking of forging a stable, multi-ethnic nation. The Special
Rapporteur also reiterates his call for the Government and all armed groups to
ensure the protection of civilians, in particular children and women, during armed
conflict. He calls upon the Government to abide by international humanitarian law,
especially the four Geneva Conventions, to which Myanmar is party. In particular,
common article 3 of the Geneva Conventions provides for the protection of civilians
from inhumane treatment and violence to life and person. He further reiterates his
previous recommendation that the Government sign and ratify the Convention on
the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on Their Destruction (Mine Ban Treaty) immediately and work with
international organizations to develop a comprehensive plan to end the use of
landmines and to address their legacy, including the systematic removal of mines
and rehabilitation of victims.
IV. Human rights situation
38. Respect for human rights, including both broad categories of civil and political
rights and economic, social and cultural rights, is a crucial feature of any democratic
transition. The Special Rapporteur notes that the Government has made important
commitments and taken a number of steps that have the potential to improve the
human rights situation.
39. In his inaugural speech to Parliament on 30 March 2011, President Thein Sein
emphasized the safeguarding of the fundamental rights of citizens, noting that the
Government will “guarantee that all citizens will enjoy equal rights in terms of the
law” and will “amend and revoke the existing laws and adopt new laws as necessary
to implement the provisions on fundamental rights of citizens or human rights”. On
8 June 2011, during the adoption of the outcome of Myanmar’s universal periodic
review by the Human Rights Council, Attorney General Tun Shin reaffirmed Myanmar’s
commitment to the promotion and protection of human rights. In this respect, the
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Special Rapporteur is encouraged to note that Myanmar accepted 74 recommendations
out of 190 received and urges the Government to ensure their implementation.
40. Despite these positive statements, there are ongoing and serious human rights
concerns that need to be addressed.
A. Prisoners of conscience
41. Of key concern to the Special Rapporteur and to the international community
is the continuing detention of a large number of prisoners of conscience. There are
at least 1,995 such prisoners of conscience, according to current estimates. While
the Government continues to assert that there are no political prisoners in Myanmar,
the Special Rapporteur has consistently held that these are individuals who have
been imprisoned for exercising their fundamental human rights or whose fair trial or due
process rights have been denied. Their continued detention, in his view, is an important
barometer of the current condition of civil and political rights in the country.
42. On 16 May 2011, President Thein Sein announced an amnesty that commuted
death sentences to life imprisonment and reduced all prisoners’ sentences by one
year. The measure resulted in the release of an estimated 100 prisoners of
conscience, including 23 members of the National League for Democracy. While
encouraged by this political decision, the Special Rapporteur notes that it fails to
resolve the problem that prisoners of conscience, who should be released, continue
to be arbitrarily detained, which disappoints international and national expectations.
43. On 30 June 2011, the Special Rapporteur requested updates on the status of the
prisoners of conscience that he has mentioned in previous reports and statements,
including information about whether they remain in detention and where, whether
their sentences have been or will be reduced, and the overall state of their health.2
In its response of 3 August 2011, the Government stated that one individual could
not be verified, one had been listed twice, 14 had been released, while the rest
remained in prison.
44. The Special Rapporteur would like to remind the Government of the human
dimension of its continuing to hold prisoners of conscience, many with
unacceptably long sentences. Two of the longest-serving prisoners are Thant Zaw
and Nyi Nyi Oo, members of the youth group of the National League for Democracy
who were wrongfully convicted of bombing a Tanyin petroleum factory in July 1989.
Now in their mid-40s, they have spent the past 22 years in prison, much of the time
reportedly in solitary confinement. In the absence of any actual evidence of
involvement in the bombing, confessions were extracted under torture at Aung
Thabyay interrogation centre and used to convict them on murder charges in a
closed court military tribunal hearing at Insein prison, without their having access to
legal counsel, and for which they were sentenced to death. The Karen National Union
__________________
2 These include Ashion Pyinya Sara, Aung Thein, Aung Tun Myint, Bo Min Yu Ko, Pone Na Mee
(Mya Nyunt), Tin Min Htut, May Win Myint, Than Nyein, General Sao Hso Ten, Hla Hla Win,
Hla Myo Naung, Htay Kywe, Kay Thi Aung, Khin Maung Shein, Ko Mya Aye, Kyaw Ko Ko,
Kyaw Kyaw, Kyaw Min, Ma Khin Khin Nu, Min Ko Naing, Zarganar, Mya Than Htike, Nilar
Thein, Nyi Nyi Htwe, Nyi Pu, Pho Phyu, Phyo Wai Aung, Sandar, Su Su Nway, Than Myint
Aung, Than Tin, Thant Zin Oo, Thurein Aung, U Gambira, Khun Htun Oo, Myint Aye, Ne Win,
Oakkantha, Tin Yu, Win Zaw Naing and Zaw Naing Htwe.
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subsequently claimed responsibility for the bombing. In August 1989, military
intelligence arrested Ko Ko Naing, a “bomb expert” of the Karen National Union,
who confessed to the crime and exonerated the members of the National League for
Democracy from any involvement. On 1 September 1989, the Government held a
press conference announcing Ko Ko Naing’s guilty verdict. On 5 September 1989,
Thant Zaw and Nyi Nyi Oo were again brought to a military tribunal and tried
concurrently with 14 other activists for participating in anti-regime underground
movements and received sentences of 20 years for high treason. Their total
sentences were later commuted to 30 years’ imprisonment. Thant Zaw is currently
incarcerated at Thayet prison, 547 kilometres from his family in Yangon. Nyi Nyi
Oo is currently incarcerated at Taungoo prison, 281 kilometres from his family in
Yangon. Both men have suffered poor health in recent years. They should be
released immediately and unconditionally.
45. Since the start of his term as mandate holder in 2008, the Special Rapporteur
has consistently called for the immediate and systematic release of prisoners of
conscience (his second core human rights element, see A/63/341). The Special
Rapporteur was informed in his meetings that the Ministry of Home Affairs is
investigating the status of prisoners in lists provided by various sources.
Nevertheless, he would like to see a concrete and time-bound plan for their release,
with special attention to be given to elderly prisoners and those with health
problems. In all meetings with Government interlocutors during his mission to
Myanmar, he conveyed his firm belief that the release of prisoners of conscience is a
central and necessary step towards national reconciliation and would bring more
benefit to Myanmar’s efforts towards democracy. He stressed that the release must
be without any conditions that may result in new ways of diminishing the enjoyment
of human rights.
B. Conditions of detention and treatment of prisoners
46. The Special Rapporteur remains concerned about the conditions of detention
and the treatment of prisoners. He notes continuing allegations of torture and illtreatment
during interrogation, the use of prisoners as porters for the military or
“human shields”, and the transfer of prisoners to prisons in remote areas where they
are unable to receive family visits or packages of essential medicine and
supplemental food.
47. In January 2011, an estimated 700 prisoners, from approximately 12 prisons
and labour camps throughout Myanmar, were reportedly sent to southern Kayin
State by the Myanmar military with the cooperation of the Corrections Department
and the police, to serve as porters. Also in the same month, around 500 prisoners
were sent to northern Kayin State and eastern Bago region. They replaced 500
prisoners who were sent to the same region the previous year. International
humanitarian law provides for the humane treatment of persons under the control of
an armed force and specifically prohibits “violence to life and person” murder, cruel
treatment and torture and humiliating and degrading treatment of those persons
having no active part in the hostilities.3
__________________
3 Human Rights Watch and Karen Human Rights Group, Dead Men Walking: Convict Porters on
the Front Lines in Eastern Burma, July 2011, available from: www.hrw.org.
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48. In Insein prison, the Special Rapporteur met with seven prisoners of
conscience: Aung Thein, Tin Min Htut, Ma Khin Khin Nu, Phyo Wai Aung, Win
Zaw Naing, Sithu Zeya and Nyi Nyi Tun. He heard disturbing testimonies of
prolonged sleep and food deprivation during interrogation, beatings, and the burning
of bodily parts, including genital organs. He heard accounts of prisoners being
confined in cells normally used for prison dogs, as a means of punishment. As in his
previous meetings with prisoners, he was told of inadequate access to medical care,
where prisoners had to pay for medication at their own cost.
49. The Special Rapporteur sent a joint urgent appeal letter to the Government on
21 July 2011 regarding the case of Hnin May Aung (also known as Noble Aye), a
member of the All Burma Federation of Student Unions and 88 Generation Students,
who is serving an 11-year sentence for violation of section 5/96 (4) of the Law
Protecting the Peaceful and Systematic Transfer of State Responsibility and the
Successful Performance of the Functions of the National Convention against
Disturbance and Oppositions (No. 5), section 505 (b) of the Penal Code, and section
6 of the Law Relating to the Forming of Organizations. Hnin May Aung is serving
her sentence in the remote Monywa prison in Sagaing region, 517 miles from
Yangon where her family lives. She was held incommunicado in a punishment cell,
essentially solitary confinement, with a ban on family visits for writing an open letter
addressed to President Thein Sein, strongly denouncing statements, made on 2 June
2011 by Vice-President U Tin Aung Myint Oo to United States Senator John McCain,
that there are no political prisoners in Myanmar. When Hnin May Aung’s father
attempted to visit her on 7 July, he was told by the warden of the jail and an
intelligence officer that her family visits had been banned because she had violated
prison regulations. The warden did not explain which rule had been violated. Her
father was also unable to deliver a package of supplementary food and essential
medication to Hnin May Aung, who suffers from jaundice.
50. The Special Rapporteur reminds the Government that it has a duty to ensure
Hnin May Aung’s right to physical and mental integrity. He recalls paragraph 1 of
Human Rights Council resolution 8/8, which “condemns all forms of torture and
other cruel, inhuman or degrading treatment or punishment, which are and shall
remain prohibited at any time and in any place whatsoever and can thus never be
justified, and calls upon all Governments to implement fully the prohibition of
torture and other cruel, inhuman or degrading treatment or punishment”.
Furthermore, article 7 of the Basic Principles for the Treatment of Prisoners
provides that “efforts addressed to the abolition of solitary confinement as a
punishment, or to the restriction of its use, should be undertaken and encouraged”
(as affirmed by the General Assembly in its resolution 45/111). He also draws
attention to principle 19 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, adopted by the Assembly in its
resolution 43/173, which states that “a detained or imprisoned person shall have the
right to be visited by and to correspond with, in particular, members of his family
and shall be given adequate opportunity to communicate with the outside world”.
Attention is also drawn to rule 37 of the Standard Minimum Rules for the Treatment
of Prisoners, adopted on 30 August 1955 by the First United Nations Congress on
the Prevention of Crime and the Treatment of Offenders, which provides that
“prisoners shall be allowed under necessary supervision to communicate with their
family and reputable friends at regular intervals, both by correspondence and by
receiving visits”.
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C. Other issues related to civil and political rights
51. In his previous reports and in his meetings with various Government
interlocutors, the Special Rapporteur highlighted several domestic laws that continue
to be used to restrict fundamental freedoms, among which: the State Protection Act
(1975), the Unlawful Association Act (1908), sections 143, 145, 152, 505, 505 (b)
and 295 (A) of the penal code, the Television and Video Law (1985), the Motion
Picture Law (1996), the Computer Science and Development Law (1996), and the
Printers and Publishers Registration Act (1962). The Government has said that it is
in the process of reviewing legislation to bring relevant laws into line with the
Constitution, and ostensibly with international human rights standards as the Special
Rapporteur repeatedly recommended (his first core human rights element). He notes
that, despite assurances that this review process was already under way in February
2010, there have not been any results announced. Nevertheless, the Special
Rapporteur was encouraged to hear that the review process continues, including
during the second regular session of Parliament. Given the Government’s stated
commitment to respect for the rule of law, and in line with his previous
recommendations on the issue, he hopes such efforts will be accelerated and clear
time-bound target dates for the conclusion of the review will be established.
Additionally, priority legislation for urgent review should also be identified,
including those provisions identified by the Special Rapporteur. Similar sentiments
had been expressed by the Committee on Freedom of Association of the International
Labour Organization (ILO), in May 2011, when it urged the Government to repeal the
Unlawful Association Act and adopt all necessary measures and mechanisms to
ensure workers’ and employers’ rights, in line with ILO Convention No. 87 on
Freedom of Association and the Protection of the Right to Organize.
52. The freedoms of opinion and expression, assembly and association are
essential for the functioning of a democratic society. They are fundamental rights
enshrined in the Universal Declaration of Human Rights and in international human
rights treaties, including those to which Myanmar is party: the Convention on the
Rights of the Child, the Convention on the Elimination of All Forms of
Discrimination against Women and ILO Convention No. 87 on Freedom of
Association and the Protection of the Right to Organize. The 2008 Constitution also
provides for freedom of expression, opinion and assembly. The Preamble (para. 8)
provides for justice, liberty and equality. Article 6 (d) declares that the basic
principles of the Union are the flourishing of a genuine, disciplined, multi-party
democratic system. Article 406 (a) and (b) state that a political party shall have the
right to organize freely and to participate and compete in elections. Article 354
states that every citizen shall be at liberty to express and publish freely their
convictions and opinions, to assemble peacefully without arms and to form
associations and organizations.
53. The right to freedom of expression is linked to the role of the media. The 10-
point reform agenda outlined by the President to Parliament included amending
some journalism laws in line with the provisions of the Constitution. During the
Special Rapporteur’s mission to Myanmar, some interlocutors noted that media
censorship had eased. In August 2011, slogans criticizing foreign media were
removed from Government newspapers. In September 2011, an article by Daw Aung
San Suu Kyi was published in a local journal, her first publication in 23 years.
Nevertheless, the Special Rapporteur has received reports of continuing restrictions
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placed on the media. For example, news outlets inside Myanmar have been required to
publish only State-run newspaper accounts about fighting between the Government
and the Kachin Independence Army in Kachin State. As of 10 June 2011, publications
focusing on sports, health, the arts, children’s literature and technology no longer
need to gain approval prior to publication, but copies must be submitted to the Press
Scrutiny and Registration Division afterwards. Publications focusing on news,
crime, education, economics and religion must still be presented to censors prior to
publication.
54. The Ministry of Information issued a regulation requiring publications to
deposit 5 million kyat (around US$ 5,882) with the censorship board, with the
stipulation that if they violated rules three times, the money would be seized upon a
fourth violation. According to reports, a new oversight board under the Ministry of
Information has been established to investigate violations. On 7 June 2011, the board
issued notifications that include No. 46, prohibiting publication and distribution of
material that is contrary to the Three National Causes (non-disintegration of the
Union, non-disintegration of national solidarity and perpetuation of national
sovereignty); the Constitution; or the Official Secrets Act; that is damaging to relations
among ethnic national races or religions; that upsets peace and tranquillity or incites
disturbances; and that exhorts members of the armed services to commit traitorous acts
or undermines the performance of public service duties. The Special Rapporteur
highlights that these vague but encompassing restrictions are similar in nature to the
laws that have been used to convict prisoners of conscience for many years.
55. The Special Rapporteur was informed by the Minister for Labour, Aung Kyi,
that a draft trade union law had been submitted to the Bill Committee in Parliament
for consideration. ILO has provided assistance in drafting the law, including through
a mission to Myanmar by an ILO consultation team in July 2011. The Special
Rapporteur welcomes this development and hopes that the draft law, as adopted,
will conform to international standards.
56. President Thein Sein has publicly acknowledged that many individuals and
organizations, both inside and outside the country, do not accept the new Government
and the Constitution. He has, however, asserted the importance of showing goodwill,
and urged these actors to take part in elections in accordance with the democratic
process and exercise their constitutional rights by legitimate means if they desired a
change to the Constitution. Recently, the Minister for Foreign Affairs, Wunna
Maung Lwin, also stated that those willing to participate in the deliberations of the
future of the nation should form a political party, be elected and take part in the
Hluttaws as representatives of the people, in accordance with the Constitution.
57. Questions remain over the status of the National League for Democracy, which
the Government has declared an illegal party over its failure to re-register to
participate in the 2010 elections. The National League for Democracy has since
exhausted legal appeals against its official dissolution. On 29 June 2011, The New
Light of Myanmar reported on the letter from the Ministry of Home Affairs to Daw
Aung San Suu Kyi, stating that her party was breaking the law by maintaining party
offices, holding meetings and issuing statements. The letter stated ‘‘If they really
want to accept and practice democracy effectively, they are to stop such acts that
can harm peace and stability and the rule of law, as well as the unity among the
people including monks and service personnel’’. The Special Rapporteur notes that
the National League for Democracy and Daw Aung San Suu Kyi represent key
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stakeholders, who need to be included in the political process. National reconciliation
requires real dialogue with all relevant stakeholders. Therefore, he welcomes talks
between the Minister Aung Kyi and Daw Aung San Suu Kyi on 25 July and 12 August,
and notes with appreciation the meeting held with President Thein Sein on 19 August,
which resulted in public statements on the need to cooperate. He hopes that these
talks will further substantive engagement between the Government and important
political opposition stakeholders.
58. The Special Rapporteur notes with appreciation that Daw Aung San Suu Kyi
was able to travel, without incident, outside Yangon for the first time, from 4 to 8 July
2011, when she made a private trip to Bagan, and then on 14 August 2011 when she
travelled to Bago to meet with supporters, open two libraries and to give public
addresses. Nevertheless, he reiterates that Daw Aung San Suu Kyi should be
allowed to travel without restriction and to be allowed to exercise her right to
freedom of expression and freedom of association and assembly, and that these
freedoms should be the general rule rather than an exception.
D. Economic, social and cultural rights
59. The President’s inaugural speeches made several commitments in the area of
economic, social and cultural rights, and his 10-point reform agenda includes the
safeguarding of farmers’ rights, creating jobs and safeguarding labour rights,
overhauling public health care and social security, raising education and health
standards and promoting environmental conservation.
60. In addition to these commitments, the Special Rapporteur is encouraged to
note recent initiatives, such as the enactment of new investment legislation; the
holding of another national workshop on rural development and poverty alleviation,
in May 2011, and the development of an action plan (covering the period 2011 to
2015) on this issue; the Third Development Partnership Forum, held in June 2011,
jointly organized by the Government and the Economic and Social Commission for
Asia and the Pacific; and a national-level workshop on economic reform and
economic development, held in August 2011, to which Daw Aung San Suu Kyi was
invited. He also takes note of the Government’s stated intention to reduce the
poverty rate in Myanmar from 26 per cent to 16 per cent by 2015.
61. In his report to the Human Rights Council in March 2011 (A/HRC/16/59), the
Special Rapporteur began to explicitly address economic, social and cultural rights:
those human rights relating to the workplace, social security, family life,
participation in cultural life and an adequate standard of living that includes access
to food, water, housing, education and health care. He noted that the failure to
address systematic discrimination and inequities in the enjoyment of these rights
will undermine efforts to build a better future for the people of Myanmar.
62. During his mission to Myanmar, many interlocutors underscored the extent to
which the people have been deprived of economic, social and cultural rights,
throughout the country, but particularly in the ethnic border areas. This is closely
linked to the need to immediately address Myanmar’s long-standing social,
economic and development challenges. Concerns regarding the availability and
accessibility of education and health care were specifically highlighted, as well as
the need for the teaching of ethnic minority languages in schools in minority areas,
reflecting issues that the Special Rapporteur has raised previously.
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63. A recent survey conducted by the United Nations Development Programme, in
cooperation with the Government’s Ministry of Planning and Economic Development,
the United Nations Children’s Fund and the Swedish International Development
Agency, found that Chin State remains the poorest State among 14 regions and States
in Myanmar, with 73.3 per cent of the people below the poverty line, while Kayah
State had a poverty rate of 11.4 per cent, Yangon region had a rate of 16.1 per cent,
and Rakhine State, with a rate of 43.5 per cent, was the second poorest.
64. Other concerns highlighted land and housing rights, particularly with respect
to the impact of infrastructure projects; land confiscation by the military for
barracks and military camps, the production of food for soldiers, and subsequent
designation of “high security areas” prohibiting people from access; natural resource
exploitation; deliberate population transfers to change the demographic make-up of
certain areas, including Northern Rahkine State; and development-induced
displacement. Violations of land and housing rights result in poverty, displacement
and ruined livelihoods, but also the destruction of cultures and traditional
knowledge. Estimates of the number of people forcibly displaced in Myanmar since
1962 owing to natural disasters, armed conflict and increasingly, to infrastructure
and development projects, place the figure over 1.5 million.
65. During the Special Rapporteur’s visit to Mae Hong Son, in Thailand, in May
2011, Karenni civil society organizations highlighted the problem of infrastructure
projects in Kayah State. The construction of the Moebye dam and the Lawpita
hydropower plant appear to have been a factor in the military’s actions in 1996,
leading to massive displacement of populations to relocation sites and over the
border into Thailand. At least 183 villages, covering at least half of the entire
geographic area of the State and with an estimated total population between 25,000
and 30,000 people, were ordered on short or no notice to move to various relocation
sites, in order to cut off civilian support for the Karenni National Progressive Party
after a ceasefire agreement was breached in June 1995. While most of the power
produced by these projects goes to central Myanmar, with few benefits for local
villagers, these residents have been victim to forced labour, including providing
sentry duty to guard the structures, and made vulnerable to landmines used to
protect the properties. Neither environmental nor social impact assessments were
done for the projects. Meaningful consultation with communities likewise did not
take place, although village headmen in affected communities apparently were
provided with income-generating opportunities.
66. In 2010, the Government agreed to the construction of three new dams on the
Salween river in Kayah State, with the Chinese State-owned Datang Corporation,
and surveys are reportedly being undertaken by engineers with army escorts. There
is great concern for people living in the area, particularly for the indigenous Yintale
Karenni, with only 1,000 members remaining, who are threatened with forced
relocation, land confiscation and other human rights abuses. The Special Rapporteur
recalls that a number of articles in the United Nations Declaration on the Rights of
Indigenous Peoples explicitly provide for free, prior and informed consent. Article
32 (2) requires States to “consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order to obtain
their free and informed consent prior to the approval of any project affecting their
lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources”. The
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Declaration is also explicit that no relocation of indigenous peoples should take
place without consent.
67. Tensions that led to the current armed conflict in Kachin State appear to have
been exacerbated by the Government’s approval of the construction, by China, of
seven major hydroelectric projects on Kachin lands. While the projects will involve
significant population displacement, destruction of local livelihoods and flooding of
large parts of Kachin territory, the concerns of the ethnic group appear, to date, to
have been largely ignored. In March 2011, the Kachin Independence Organization sent
a letter to central authorities in China, detailing its concerns and seeking support in
resolving the issue. Likewise, in Kayin State where the Hatgyi Dam is planned,
increased fighting has led to thousands of new refugees fleeing to Thailand.
68. There appear to be more new projects in development. More than 25 large
hydropower dams are being built or planned on all major rivers, with investment
mainly from neighbouring countries to whom most of the power will be exported,
despite only 13 per cent of Myanmar’s population currently having access to
electricity. The planned dams are all located in ethnic regions. Other projects
include a deep sea port, gas and oil pipelines and mines involving multinational
companies from China, India, the Republic of Korea, Thailand and other countries,
including from Europe and North America, despite sanctions which do not permit
service contracts. Myanmar requires strong rule of law in order to guarantee the
rights of the people in the context of these infrastructure projects. Communities
need to be consulted in a meaningful way, which does not appear to have been done
in most cases. Revenues from these projects should be recorded appropriately and
be used to benefit the people of Myanmar for the realization of their economic,
social and cultural rights. The private companies that are involved in these projects
also have a responsibility to not be complicit in human rights abuses.
69. Whereas the Government was directly responsible for economic projects prior
to 1988, private local commercial interests with strong links to the military have
since emerged, complicating somewhat the respective roles of these companies and
the Government in their legal complicity in human rights abuses. For example, on
18 December 2010, the Htoo construction company, owned by a powerful
businessman in Myanmar with strong connections to the military, cleared the land of
a group of farmers, which was under agricultural use, for the construction of a road
to the site of a caustic soda and polyvinyl chloride (PVC) factory in Magway
Division. On 4 February 2011, four farmers lodged a complaint about attempts by
the Htoo Company to acquire their land at a greatly undervalued amount; their
complaint was rejected in court on the grounds that the land was being acquired for
a Government project, even though the company is private. Subsequently, a gang of
about 20 men attacked a group of the farmers, injuring two of them, and a series of
criminal charges were filed against the farmers. The case went to court very quickly
and the farmers were convicted.4 Given the wave of privatizations last year, some
under questionable circumstances, along with the new Government’s plans to
accelerate economic development, the Special Rapporteur fears an increase in land
confiscation and other forms of coercion by private sector actors in collusion with
the military and Government.
__________________
4 Asian Human Rights Commission, Urgent Appeal Case: AHRC-UAC-073-2011, 7 April 2011,
available from www.humanrights.asia.
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70. While Myanmar is not party to either of the core international human rights
covenants, the right to adequate housing is recognized in article 25, paragraph 1, of
the Universal Declaration of Human Rights as well as in the two treaties that
Myanmar has ratified: in article 14 of the Convention on the Elimination of All
Forms of Discrimination against Women and in article 27, paragraph 3, of the
Convention on the Rights of the Child.
71. The Government’s obligations to realize the right to adequate housing does not
require provision of housing but facilitation of the conditions, through law and
policy, for citizens to have access to adequate housing. The Government has the
obligation to not forcibly evict people and to protect people from being forcibly
evicted by third parties. The Commission on Human Rights, in its resolution
1993/77, stated “that the practice of forced eviction constitutes a gross violation of
human rights, in particular the right to adequate housing”.
72. In this context, the Special Rapporteur reminds the Government of the victims’
right to restitution, a principle of restorative justice, providing every refugee and
displaced person the right to return to their former homes and lands and to have
their homes and lands, with repairs for any damage or rebuilding of destroyed
property, under the Principles on Housing and Property Restitution for Refugees and
Displaced Persons, adopted in 2005 by the Sub-Commission on the Promotion and
Protection of Human Rights, in its resolution 2005/21. He notes that restitution
rights are not limited to people with land titles, but also renters and other legal
occupiers of land. If return to the old home or land is not possible, displaced persons
have a right to compensation for their loss and/or a new house and/or land. The
Government needs to adopt relevant rules and policies, in this regard, which ensure
an independent and impartial process.
V. Truth, justice and accountability
73. As stated in previous reports, the Special Rapporteur is concerned that a
pattern of gross and systematic violations of human rights has existed for many
years and continues today, although a new political system is being established. He
reaffirms that justice and accountability measures, as well as measures to ensure
access to the truth, are essential for Myanmar to face its past and current human
rights challenges, and to move forward towards national reconciliation.
74. The Special Rapporteur reiterates that it is primarily the responsibility of the
Government of Myanmar to address this problem and to end impunity. Investigating
and prosecuting those responsible for serious violations of international human
rights law and international humanitarian law is not only an obligation but would
deter future violations and provide avenues of redress for victims. If the
Government fails or is unable to assume this responsibility, then the responsibility
falls to the international community. Accordingly, the Special Rapporteur has
previously recommended that the international community consider establishing an
international commission of inquiry into gross and systematic human rights
violations that could amount to crimes against humanity and/or war crimes. He
makes clear that this is only one option for ensuring that justice is dispensed,
accountability is established, and impunity is averted.
75. An international commission of inquiry, appointed by ILO in 1997, found in
1998 that the “obligation to suppress the use of forced or compulsory labour is
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violated in Myanmar in national law as well as in actual practice in a widespread
and systematic manner, with total disregard for the human dignity, safety and health
and basic needs of the people”. The Government, which had been invited to take
part in the proceedings, abstained from participating in the inquiry and did not
permit the commission to visit the country. The commission received over 6,000
pages of documents and heard testimony by representatives of non-governmental
organizations and over 250 eyewitnesses with recent experience of forced labour
practices. The outcome of the commission’s investigation into forced labour
includes an acknowledgement of the problem and some efforts to address it,
including through subsequent active cooperation by the Government with ILO
through a supplemental understanding. Such a positive outcome could likewise be
helpful to the Government in confronting wider human rights and humanitarian law
violations.
76. During his mission to Myanmar, the Special Rapporteur repeatedly highlighted
the importance of investigations into alleged human rights violations being carried
out by an independent and impartial body, in order to establish the facts. In this
connection, he was again informed that the Myanmar Human Rights Body, under the
chairmanship of the Minister for Home Affairs, had established a team to investigate
human rights violations whenever they were lodged by citizens and to take punitive
actions against violators. He notes, however, that the Myanmar Human Rights Body
does not operate under any legislation but under the terms of Notification 53/2007,
which sets out in three paragraphs the body’s composition and broad terms of
reference: to examine and make proposals on work related to the United Nations and
international human rights; to examine and make proposals on the establishment of a
human rights commission in Myanmar; and to set up working groups as necessary. No
reference is made to any investigative capacity or complaints receiving mechanism.
77. During his mission, the Special Rapporteur received information that the
Government intended to establish a national human rights institution. On 6 September
2011, the Government issued Notification 34/2011 on the formation of the Myanmar
National Human Rights Commission “with a view to promoting and safeguarding
fundamental rights of citizens described in the Constitution”. The Special
Rapporteur has also received information that the Government intends to research
the role and terms of reference of other human rights commissions established
during democratic transitions.
78. The Myanmar National Human Rights Commission is composed of 15 members,
the majority of whom are former Government officials. There are many questions
about the role and functioning of such an institution and whether it would comply,
in terms of independence and effectiveness, with the Principles relating to the Status
of National Institutions for the Promotion and Protection of Human Rights (Paris
Principles), which were welcomed by the General Assembly in its resolution 48/134.
In this respect, the Special Rapporteur notes that an independent, credible and
effective institution that complies with the Paris Principles could be an important
mechanism for receiving complaints and investigating violations, thereby playing a
central role in human rights promotion and protection in the country.
79. The Special Rapporteur emphasizes that ultimately the institutions and
instruments in Myanmar available for investigation of human rights violations
should meet international standards. Moreover, the issue of access to remedies and
reparations must be addressed. The right to effective remedy is recognized under
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international human rights law and has been detailed in General Assembly resolution
60/147, by which the Assembly adopted the Basic Principles and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law.
80. The Special Rapporteur perceives that there is a growing understanding and
recognition in some areas of the Government and among other stakeholders inside
the country about the major responsibilities of the authorities in respect to truth,
justice and accountability measures for past and ongoing gross and systematic
human rights abuses. He again encourages the Government to demonstrate its
willingness and commitment to address these concerns and to take the necessary
measures for investigations of human rights violations to be conducted in an
independent, impartial and credible manner, without delay.
VI. International cooperation
81. The Special Adviser to the Secretary-General on Myanmar, Mr. Vijay Nambiar,
has been able to continue the Secretary-General’s good offices dialogue through his
visits on 27 and 28 November 2010 and from 11 to 13 May 2011. The Special
Rapporteur remains in close contact with the Special Adviser.
82. The Government of Myanmar participated actively in the universal periodic
review process with the consideration of its report in January 2011 and the adoption
of the outcome in June 2011.
83. OHCHR plans to conduct a human rights training workshop for Government
officials during 2011. This follows a similar training workshop for Government
officials, held in 2010.
84. The Special Rapporteur welcomes the return of the International Committee of
the Red Cross (ICRC) to Myanmar with the visit of three officials from the ICRC
water and habitat engineering department to three prisons (Myaungmya prison,
Moulmein prison and Pa-an prison), on 1 and 2 July 2011. He again urges the
Government to allow full access of ICRC to prisons and to prisoners, according to
its standard procedures applied worldwide.
85. ILO has provided assistance to the Government on a draft trade union law. The
Special Rapporteur hopes that the legislation, as adopted, will be in line with
Myanmar’s international obligations under Convention No. 87, which Myanmar has
ratified.
86. The President noted in his inaugural speech that the Government intends to
work in cooperation with international organizations, including the United Nations
and non-governmental organizations in the education and health sectors.
87. The Office of the United Nations High Commissioner for Refugees (UNHCR)
has noted a relative improvement in its ability to secure permissions for and
facilitate the implementation of its activities in Myanmar, particularly its aid
projects in Rakhine State. Collaboration with the Government for future planning
and resolving UNHCR concerns in the field has also improved comparatively.
UNHCR both directly and indirectly collaborates with local Government bodies in
support of formal and informal education; health; water, sanitation and hygiene; and
infrastructure development projects.
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VII. Conclusions
88. This is a key moment in Myanmar’s history and there are real
opportunities for positive and meaningful developments to improve the human
rights situation and deepen the transition to democracy. The new Government
has taken a number of steps towards these ends.
89. Yet, many serious human rights issues encompassing the broad range of
civil, political, economic, social and cultural rights remain and they need to be
addressed. The new Government should intensify its efforts to implement its
own commitments and to fulfil its international human rights obligations.
90. The Special Rapporteur holds the view that justice and accountability
measures, as well as measures to ensure access to the truth, are fundamental for
Myanmar to face its past and current human rights challenges, and to move
forward towards national reconciliation and democratization. In this context,
the Special Rapporteur reiterates that it is essential for investigations of human
rights violations to be conducted in an independent, impartial and credible
manner, without delay. The new Government should signal its willingness and
commitment as soon as possible through concrete action at the domestic level in
this regard. The international community should be ready to consider those
steps necessary to help Myanmar to fulfil its international obligations, which
could include a commission of inquiry or other forms of technical assistance.
91. The international community needs to remain engaged, closely follow
developments, and support and assist the Government during this important
time. The Special Rapporteur reaffirms his willingness to work constructively
and cooperatively with Myanmar to improve the human rights situation of its
people. He hopes to return to Myanmar before he presents his next report to
the Human Rights Council, in March 2012.
VIII. Recommendations
92. The Special Rapporteur reiterates his four core human rights elements
related to the review of legislation, prisoners of conscience, the armed forces
and the judiciary (see A/63/341, A/64/318 and A/HRC/10/19).
93. He urges that priority be given to the release of all prisoners of conscience,
without delay and without conditions, as a central and necessary step towards
national reconciliation, which would bring more benefit to Myanmar’s efforts
towards democracy.
94. He also recommends that the Government of Myanmar:
(a) Take immediate measures to improve the conditions of detention and
the treatment of prisoners, in compliance with international standards; to address
allegations of torture and ill-treatment during interrogation, and the use of
prisoners as porters or “human shields” for the military; and to halt and remedy
the transfer of prisoners to prisons in remote areas where they are unable to
receive family visits or packages of essential medicine and supplemental food;
(b) Ensure respect for the freedoms of expression, assembly and
association. Remove restrictions on the development and activities of political
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parties, and draw lessons from the November 2010 elections in order to ensure
that future ballots are held in a more inclusive, participatory and transparent
and thus, credible manner;
(c) Accelerate efforts for the review and amendment of legislation and
legal provisions that limit fundamental freedoms and contravene international
standards. Clear time-bound target dates for the conclusion of the review
should be established. Priority legislation for urgent review should also be
identified, including those provisions previously identified by the Special
Rapporteur. They include: the State Protection Act (1975); the Emergency
Provision Act (1950); the Printers and Publishers Registration Act (1962); the
Law Protecting the Peaceful and Systematic Transfer of State Responsibility
and the Successful Performance of the Functions of the National Convention
against Disturbance and Oppositions (No. 5) (1996); the Law Relating to the
Forming of Organizations (1988); the Television and Video Law (1985); the
Motion Picture Law (1996); the Computer Science and Development Law
(1996); the Unlawful Association Act (1908); the Electronics Act; and sections
143, 145, 152, 505, 505 (b) and 295 (A) of the penal code;
(d) Undertake more concrete measures to ensure not only the protection,
but also the realization of basic economic, social and cultural rights. Special
attention should be given to the implementation of the Special Rapporteur’s
previous recommendations on the right to education (A/HRC/16/59);
(e) Ratify core human rights conventions. This was being considered, as
indicated to the Special Rapporteur during his meetings with authorities in
Myanmar;
(f) Ensure that investigations by an independent body into gross and
systematic human rights violations are conducted in an impartial and credible
manner, without delay, with a view to establishing the facts and providing
effective remedies, including reparations, rehabilitation and compensation. The
Special Rapporteur urges the Government to seek the necessary international
technical assistance in this regard;
(g) Ensure that the new Myanmar Human Rights Commission is
established in such a way as to comply with international standards, particularly
the Paris Principles. The human rights institution should be established by a law
adopted by the Parliament that should provide for an inclusive and transparent
selection process of the members, that includes a selection committee
comprising all sectors of the society. The law should provide for functional and
budgetary independence and meet other requirements of the Paris Principles;
(h) Ensure that the Commission should be equipped with the necessary
resources and capacity in order to ensure effectiveness. The Government should
seek technical assistance from OHCHR in the development of this new
institution;
(i) Engage with and seek assistance from OHCHR for follow-up and
implementation of the accepted universal periodic reviews recommendations, as
well as those of the treaty bodies and special procedures mandate holders.
95. The Special Rapporteur calls on the authorities and all armed groups to
ensure the protection of civilians in conflict-affected areas and respect for
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international human rights and humanitarian law. He also calls on the
authorities and all armed groups to accelerate efforts towards finding a
political solution to the conflicts.
96. The use of anti-personnel landmines should be prohibited in all cases. The
Special Rapporteur recommends that the Government ratify the Convention on the
Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on Their Destruction.
97. More broadly, the Special Rapporteur reiterates that ending
discrimination and ensuring the enjoyment of cultural rights for ethnic
minorities is essential for national reconciliation and would contribute to
Myanmar’s long-term political and social stability. A comprehensive plan by
the Government to officially engage these groups in serious dialogue is needed
to resolve long-standing and deep-rooted concerns.
98. The effective functioning and independence of State institutions is central
to any transition to democracy. The Special Rapporteur therefore recommends
that:
(a) In order to enhance the capacity and functioning of Parliament and
of its members, cooperation and assistance from the international community
should be sought, for example from the International Parliamentary Union and
other appropriate international organizations;
(b) Technical assistance from the international community should also
be sought in the area of judicial reform, capacity-building and training of
judges and lawyers;
(c) The Union Election Commission should exercise its powers in an
independent and impartial manner, in order to ensure that by-elections
scheduled to take place later in 2011 are deemed to be more credible. Election
laws should be revised to ensure a more level playing field. Complaints should
be addressed in a timely, open and transparent manner.