24 October 2011

Burma’s NHRC: An Empty Gesture

The international community should not welcome the creation of Burma’s NHRC until it complies with the Paris Principles

On 5 September, Burma’s regime announced that it had established a National Human Rights Commission (NHRC) charged with promoting and safeguarding the fundamental rights of citizens in accordance with the 2008 Constitution.

While the creation of a NHRC could be seen as a positive step, many welcomed the development with skepticism. The creation of the NHRC comes at a very convenient time for Burma’s regime. Since ASEAN decided to postpone its decision regarding Burma’s bid for the 2014 chairmanship and is expected to make the decision in November and since the UN General Assembly is soon going to vote on its annual resolution on the situation of human rights in Burma, the regime has been trying to win over the international community. In the past few months, in addition to the establishment of a NHRC, the regime has held meetings with Daw Aung San Suu Kyi on several occasions, invited the UN Special Rapporteur to visit the country and recently released 220 political prisoners in an attempt to charm the international community.

We know very little about the NHRC. The regime has not given much information on the functioning and detailed mandate of the commission, making it clear that this is nothing more than an empty gesture designed to please ASEAN and the international community at a time Burma’s regime needs their support when seeking the ASEAN chairmanship and the lifting of the sanctions.

Moreover, the little we do know about the NHRC is sufficient enough to have strong doubts about the commission’s independence and autonomy. The initial information known about the commission demonstrates that there are clear violations of the Paris Principles, which set the minimum conditions that must be met for a NHRC to be considered credible by its peer institutions and within the UN system.

Therefore, we call on the international community to adopt a very cautious approach towards Burma’s NHRC and to postpone any decision regarding welcoming its creation.

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Burma’s NHRC violates the Paris Principles

The Paris Principles identify six criteria that national human rights institutions should meet in order to be effective. Among those six criteria, three of which are particularly relevant to Burma’s NHRC.

A clearly defined broad based mandate based on universal human rights standards

In Government Notification No. 34/2011 establishing the NHRC, the only information provided about the NHRC’s mandate is that it can “receive complaints by individuals when his or her fundamental rights in the Constitution of the Republic of the Union of Myanmar are violated [...] if the Commission concludes that the alleged violations of the fundamental rights in the Constitution against a citizen are true, it will take steps in accordance with its rules of procedure to promote and safeguard the fundamental rights.”1

Because the mandate of the NHRC is based on the Constitution, it is clearly not a body that is capable of addressing violations of people’s fundamental human rights. The 2008 Constitution itself violates the rights of the people of Burma and is an instrument used by the regime to maintain power and oppress the population.

For instance, article 445 of the 2008 Constitution grants immunity to any regime official who commits or has committed any crime while carrying out his or her official duties. Therefore the chief of intelligence who arrested and tortured political dissidents, the army commander who used forced labor for construction projects, would all enjoy impunity, and be free to continue committing such heinous crimes without fear of being prosecuted or held responsible.2 Therefore as the NHRC is based on the 2008 Constitution, it will not be in a position to address human rights violations committed by regime officials.

Moreover, the lack of detail surrounding the commission’s operations, particularly regarding how it will go about taking action against those accused of violations of law, is worrisome. 1 “The Republic of the Union of Myanmar: Myanmar National Human Rights Commission - Accepting of complaint”, The New Light of Myanmar, 7 October 2011 2 “Revealing Burma’s system of Impunity”, Burma Lawyers’ Council, September 2011

Summary

The establishment of the NHRC appears to be nothing more than part of a public relations strategy aimed at winning over the international community.

The mandate of Burma’s NHRC mandate is not clearly defined and is based on the 2008 Constitution, a document which violates human rights standards and ensures impunity for human rights violations committed by regime officials.

The NHRC was established by Government Notification 34/2011 and its mandate articulated by a Notification from the NHRC itself.

The NHRC members were appointed by President Thein Sein in a Government Notification. All members are “retired” civil servants and have a past history of defending the military regime’s record of human rights violations.

All of these elements are clear violations of the Paris Principles, which are designed to guarantee the independence and autonomy of NHRCs. Therefore, the international community should not welcome or endorse the creation of Burma’s NHRC.

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It appears that Burma’s NHRC has a mandate that is neither clearly defined nor based on universal human rights standards and which, therefore, violates the Paris Principles.

Autonomy from government and independence guaranteed by legislation or the Constitution

The issue of autonomy is intrinsically linked to independence and is perhaps the most important of the guidelines elaborated in the Paris Principles. The UN Development Programme – Office of the High Commissioner for Human Rights (UNDP-OHCHR) toolkit for collaboration with National Human Rights Institutions (NHRI) details and explains the criteria a NHRI should meet to comply with these two core principles. In light of these criteria, it is clear that Burma’s NHRC violates this most importance element of the Paris Principles.

One of the criteria to check the independence and autonomy of a NHRI is for its mandate to be set out in a constitution or piece of legislation. According to the UNDP-OHCHR toolkit, there are several reasons why it is important for an institution’s mandate to be set out in a constitution or in legislation, including the fact that it enhances the institution’s permanence and independence. Having a NHRI’s mandate set out in legislation that has been approved by the nation’s elected officials also improves visibility and transparency.

In Burma, there are no references to the National Human Rights Commission in the 2008 Constitution. Moreover, the NHRC was established by the Government Notification No. 34/20113 and its mandate detailed by a Notification issued by Burma’s NHRC itself. No legal steps have been taken by Burma’s parliament towards the NHRC’s creation or the definition of its mandate. No consultation meeting has been organized by the regime. Instead, the regime and the NHRC itself are only sporadically releasing Notifications with limited information about the commission and its mandate. It therefore seems likely that this body will exist based solely on Government Notifications rather than through a legally recognized act of parliament. As its activities will not be undergirded by public legislation, it is hard to believe that the commission will be able to act independently, consistently and transparently, contravening the essential elements of what a legitimate NHRC should be.

Another criterion to check the independence and autonomy of a NHRI is for the body to report to the country’s parliament. Considering that Burma’s parliament was neither involved in the creation nor in the selection of the NHRC’s members, it is very unlikely that the commission will report to the parliament.

When determining the independence and autonomy of a NHRI, the Paris Principles and UNDP-OHCHR’s toolkit also look at the nomination process of the commission’s members. According to the Paris Principles, to guarantee the independence, pluralism and autonomy of the NHRC, the appointment of members must be done by an official act, the terms and conditions that govern appointment and dismissal of members should be transparent, appointment should be done for a specific duration, the nomination process should include input from civil society and the selection process should involve the parliament. Moreover, the members of the NHRC should include representatives of most social forces including NGOs, trade unions and professional associations. 3 “Myanmar National Human Rights Commission formed,” The New Light of Myanmar, 6 September 2011

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The appointment of the members of Burma’s NHRC was made in the same Government Notification that announced its creation. As U Win Mra, the Chairman of the NHRC, stated in an interview, “The current members were chosen by the President.”4 The parliament, civil society groups, media, etc. knew nothing about the establishment of the NHRC and its membership before the government issued the notification, in total disregard for the Paris Principles.

Moreover, regarding the composition of the NHRC, the 15-member body includes former State Peace and Development Council (SPDC) ambassadors and retired civil servants with little prior knowledge of human rights. This is in violation of Article 4 of the Paris Principles wich states: “The composition of the national institution and the appointment of its members […], shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the promotion and protection of human rights […]”.

For example, the NHRC Chairman and Vice-Chairman have routinely denied the existence of human rights violations in Burma and defended the military regime’s abysmal human rights record at the UN over the last 15 years, generating even more doubts and worries about the commission’s independence. It is highly probable that, considering who the members of the NHRC are, it will serve only as a means of whitewashing Burma's appalling record of human rights abuses.

U Win Mra in his capacity as the former junta’s Ambassador to the UN in New York, routinely defended the junta against allegations of human rights violations. In June 2001, during the annual session of the International Labor Conference in Geneva, he denied the existence of forced labor in Burma. In May 2004, during a session of the UN Committee on the Rights of the Child in Geneva, he stated that there was no religious discrimination in Burma. He also denied that the Rohingya were one of Burma’s ethnic groups. Vice-Chairman Kyaw Tint Swe also served as the former junta’s Ambassador to the UN in New York. He denied allegations that the regime’s army recruited child soldiers as well as that the regime had any involvement in the Depayin massacre. Members Hla Myint and Nyunt Swe are two former high-ranking officials in the Burma Army. There is little doubt that they would be reluctant to investigate allegations of human rights violations committed by their peers. In fact, all of the NHRC’s members are retired regime officials.

To conclude, in his report to the UN General Assembly, dated 16 September 2011, the UN Special Rapporteur on the situation of human rights in Burma, Tomás Ojea Quintana, recommended that the UN “ensure that the new Myanmar Human Rights Commission is established in such a way as to comply with the international standards. 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 independent and meet other requirements of the Paris Principles.”5

It is clear that Burma’s NHRC does not yet meet any of these requirements. As a consequence, we highly recommend that the international community does not welcome and endorse the creation of

4 “We won’t be influenced by the govnt”, The Myanmar Times, 19 September 2011 5 “Report of the Special Rapporteur on the situation of human rights in Myanmar”, 16 September 2011

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Burma’s NHRC. There are too many reasons to doubt its independence and autonomy. It would be detrimental to all the independent NHRCs if the international community welcomes the establishment of a commission that violates the core fundamental Paris Principles and is likely to be used as a tool to legitimize human rights violations rather than as an institution that would safeguard the population’s rights.