COLLECTED REPORTS TO THE COMMISSION ON HUMAN RIGHTS BY THE SPECIAL RAPPORTEURS ON MYANMAR
PROFESSOR YOZO YOKOTA (1992-1996)
JUDGE RAJSOOMER LALLAH (1996-2000)
PROFESSOR PAOLO SERGIO PINHEIRO (2000- )
INTRODUCTION
Basic starting points for an assessment of human rights conditions in Burma/Myanmar are the UN resolutions on the situation of human rights in Myanmar and the body of reports submitted since 1992 to the UN General Assembly and Commission on Human Rights by the UN Special Rapporteurs on Myanmar.
Special Rapporteurs are independent experts appointed by the Commission on Human Rights to examine and report on particular human rights themes or on the situation of human rights in particular countries. Country Special Rapporteurs are only appointed to examine the most serious human rights situations. The Commission appointed Professor Yozo Yokota as Special Rapporteur on the situation of human rights in Myanmar in 1992 following two years when Burma/Myanmar had been examined by the Commission under its 1503 (confidential) procedure. He was succeeded in 1996 by Judge Rajsoomer Lallah, who was followed in 2000 by Professor Paolo Sergio Pinheiro.
Not only are the reports of the Special Rapporteur the most authoritative general reports on the human rights situation in Burma/Myanmar, including analysis of the legal framework governing the exercise of human rights in the country, but they also contain an abundance of summaries of testimonies gathered by the Special Rapporteurs over 12 years, as well as the responses of the Government of Myanmar to specific allegations.
By reading the reports as a body it is thus possible to see the patterns of violations over a number of years, to assess the degree to which they are systematic, widespread and persistent over time, to track particular themes from 1992 (e.g. killings, rape, torture, forced relocation, forced labour) but also to inquire whether there has been any development, positive or negative, since the United Nations human rights bodies began their examination of the situation.
The present document and the parallel collection of reports to the General Assembly are intended to facilitate searching of the reports as a body. Since they are rather large documents, they are presented in Text. Text does not permit tables, and although I have presented the information from the tables as clearly as possible, some readers may wish to check the original (and authoritative) versions -- go to http://www.burmalibrary.org and search for the document number, e.g. A/48/578, and click on the link, or to the website of the UN High Commissioner for Human Rights, http://www.unhchr.ch and search. Otherwise, go to http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/Myanmar%20En?OpenDocument&Start=1&Count=15&Expand=2 for links to the individual reports, or to the web-page of the Special Rapporteur on Myanmar at http://www.unhchr.ch/html/menu2/7/a/mmya.htm
David Arnott,
Geneva.
Last updated, August 2003
CONTENTS
E/CN.4/1993/37
17 February 1993
(Professor Yokota's first report to the Commission)
E/CN.4/1994/57
16 February 1994
E/CN.4/1995/65
12 January 1995
E/CN.4/1996/65
5 February 1996
E/CN.4/1997/64
6 February 1997
(Judge Lallah's first report to the Commission)
E/CN.4/1998/70
15 January 1998
E/CN.4/1999/35
22 January 1999
E/CN.4/2000/38
24 January 2000
(There was no written report in 2001)
E/CN.4/2002/45
10 January 2002
(Professor Pinheiro's first report to the Commission)
E/CN.4/2003/41
27 December 2002
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Economic and Social Council
E/CN.4/1993/37
17 February 1993
Commission on human rights Forty-ninth session Agenda item 12
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE TO COLONIAL AND OTHER DEPENDENT COUNTRIES AND TERRITORIES
Report on the situation of human rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1992/58
CONTENTS
Paragraphs
Introduction 1- 6
I. Background 7-31
A. General 7-8
B. Chronology of events pertinent to the situation 9-31
II. Activities of the Special Rapporteur 32-68
III. Allegations 69-138
A. Right to life 69-96
B. Torture, cruel, inhuman or degrading punishment 97-114
C. Disappearances 115-116
D. Arbitrary and prolonged detention 117-119
E. Freedom of expression 120-127
F. Situation of Myanmar Muslims of Rakhine state 128-138
IV. Legal framework 139-199
A. International law 140-179
B. Myanmar law relevant to the question of human rights 180-198
V. The National Convention for drafting a new Constitution and the transfer of power to a civilian government 199-217
VI. Conclusions 218-241
VII. Recommendations 242
Introduction
1. On 3 March 1992, at its forty-eighth session, the Commission on Human Rights adopted resolution 1992/58, entitled "Situation of human rights in Myanmar". In that resolution, the Commission noted that, in accordance with the Charter, the United Nations promotes and encourages respect for human rights and fundamental freedoms for all, and that the Universal Declaration of Human Rights states that "the will of the people shall be the basis of the authority of government". It also noted with particular concern in that regard that the electoral process initiated in Myanmar by the general elections of 27 May 1990 had not yet reached its conclusion; that no apparent progress had been made in giving effect to the political will of the people of Myanmar, as expressed in the elections; and that the final results of the elections had not even been officially released; also noted that many political leaders, in particular elected representatives, remained deprived of their liberty and that Daw Aung San Suu Kyi was still under house arrest; and noted with concern the seriousness of the situation of human rights in Myanmar, the existence of important restrictions on the exercise of fundamental freedoms and the imposition of oppressive measures directed, in particular, at minority groups and the continuing exodus of Myanmar refugees to neighbouring countries, including Myanmar Muslim refugees to Bangladesh.
2. By paragraph 3 of resolution 1992/58, the Commission on Human Rights decided to nominate a special rapporteur to establish direct contacts with the Government and with the people of Myanmar with a view to examining the situation of human rights in Myanmar and to report to the General Assembly at its forty-seventh session and to the Commission on Human Rights at its forty-ninth session.
3. After consultation with the Bureau, the Chairman of the Commission appointed, on 10 June 1992, Dr. Yozo Yokota (Japan) as Special Rapporteur on the situation of human rights in Myanmar, pending approval of Commission resolution 1992/58 by the Economic and Social Council.
4. At its substantive session of 1992, the Economic and Social Council adopted decision 1992/235 of 20 July 1992, approving Commission resolution 1992/58.
5. The preliminary report of the Special Rapporteur was submitted to the Secretary-General of the United Nations for dissemination to all States Members of the United Nations at the forty-seventh session of the General Assembly in November 1992 (A/47/651, annex).
6. This comprehensive report is submitted to the Commission on Human Rights at its forty-ninth session for consideration by the Commission.
I. BACKGROUND
A. General
7. The situation of human rights in Myanmar was first considered by the Commission on Human Rights at its forty-sixth session, in 1990, under the procedure established by Economic and Social Council resolution 1503, after having been considered by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities at its fortieth and forty-first sessions, in 1988 and 1989, respectively. In 1991, the Commission continued its consideration of the situation in Myanmar under the procedure established in resolution 1503.
8. As mentioned above, the Commission decided at its forty-eighth session to appoint a special rapporteur to examine the situation of human rights in Myanmar and to report to the next sessions of the General Assembly and the Commission on Human Rights. The Commission also charged the Special Rapporteur with the expressed tasks of following any progress made towards the transfer of power to a civilian government and the drafting of a new constitution, the lifting of restrictions on personal freedoms and the restoration of human rights in Myanmar.
B. Chronology of events pertinent to the situation
9. In 1948 the Union of Myanmar (then called Burma) gained its independence from British colonial rule. From 1948 until 1962, the country was governed by a parliamentary democracy based on the Constitution of 2 September 1947.
10. The Constitution was drafted by consensus among the Barmar ("ethnic Burmans" who comprise approximately two thirds of the population) and most of the ethnic minorities including the Shan, Rakhine (Arakan), Kayin (Karen), Mon, Kachin, Chin, Karenni and Pa-o. It provided for a federal system of government with separate executive, legislative and judicial branches. The states, while belonging to the Union, were considered autonomous.
11. According to Article 201 of the Constitution, ethnic minorities had, in theory, the right to secede from the Union, but, under Article 202, this right was not to be exercised until ten years from the date of entry into force of the Constitution.
12. In March 1948, an armed insurgency against the then Government of Burma was begun by the Communist Party of Burma. From 1948 through 1961, various minority ethnic groups joined the armed insurgency.
13. In March 1962, General Ne Win took power in a coup d'‚tat. He installed a one-party (Burma Socialist Programme Party) military regime with military tribunals and courts and operated without a constitution. He embarked upon a programme known as the "Burmese Way to Socialism".
14. On 28 March 1964, the Law to Protect National Unity was promulgated, banning all political parties except the Burma Socialist Programme Party.
15. In 1974 a new Constitution was drafted. However, one-party rule continued.
16. By 1988, widespread dissent and demonstrations began in reaction to two factors, firstly, the suppression of all civil and political rights since the 1962 overthrow of the constitutional Government; and secondly, the economic failure caused by the Burmese Way to Socialism.
17. The economy was in crisis. In September 1987, the major currency notes had been demonetized and approximately 70 per cent of all currency in circulation had been rendered valueless. There were also severe shortages of domestic goods and the country, once one of the world's major rice producers and exporters, lost its capacity to maintain its international market.
18. From March until June 1988, students and workers demonstrated, and were attacked by the military. Hundreds of civilians were arrested, many were severely injured or died from ill-treatment in detention and many persons were summarily or arbitrarily executed. On 21 June 1988 the Government imposed a ban on all public gatherings.
19. On 23 July 1988, General Ne Win resigned as party leader, promising economic reform and the holding of a referendum to end one-party rule and institute a multi-party system.
20. Demonstrations continued and the army and riot police continued the crackdown on demonstrators. It is reported that between 8 August, when a nationwide strike was held, and 12 August approximately 3,000 persons were killed. All educational institutions were closed.
21. On 18 September 1988, the military took power. The State Law and Order Restoration Council (SLORC) was set up under the chairmanship of the Chief of Staff, Senior General Saw Maung.
22. The National Assembly (Pyithu Hluttaw), the Council of State and other governmental bodies were dissolved. Senior General Saw Maung became Prime Minister, Minister of Foreign Affairs and Minister of Defence.
23. Free elections were promised by SLORC. In response, three main opposition parties were established: the National League for Democracy (NLD); the National Unity Party (NUP, reconstituted from the Burmese Socialist Programme Party) and the League for Democracy (LDP).
24. On 23 September 1988, Senior General Saw Maung, as Chairman of SLORC, made a statement to the effect that three conditions for the holding of elections would have to be met:
"1. Maintenance of law and order.
"2. Providing smooth and secure transportation.
"3. The State Law and Order Restoration Council will strive for better conditions of food, clothing and shelter of the people and render necessary assistance to the private sector and the cooperatives to do so."
25. In 1988, Daw Aung San Suu Kyi, daughter of U Aung San (the national hero of independence) and General Secretary of the National League for Democracy, was banned from campaigning on the grounds that she maintained unlawful association with insurgent organizations.
26. On 20 July 1989, Daw Aung San Suu Kyi was detained by Government forces. Numerous others, including most of the important opposition political leaders to SLORC, were also arbitrarily detained, and many of them remain so to date.
27. In May 1990, general elections were held. The opposition (NLD) was reliably reported to have won the elections overwhelmingly.
28. SLORC set up an Election Commission to scrutinize the results of the elections and all expense accounts of all elected representatives (SLORC has stated it does not want to rush the Commission), the winners of the elections will be announced and certificates to the winners will be issued.
29. A Constitutional Convention to decide the terms of the drafting of the constitution has been announced by SLORC with the participation of all parties. According to SLORC order No. 11/92 of 24 April 1992 and citing SLORC order No. 1/90 of 27 July 1990 (contained in Government of Myanmar Press Release No. 82, dated 26 June 1992) and according to SLORC order No. 9/92 dated 28 May 1992, SLORC, through its Steering Committee, was given responsibility for the preparation of the Coordinating Meeting for the Convening of the National Convention. Leaders of lawfully existing political parties were to attend in numbers designated by the Steering Committee. The nomination list of those representatives were to be sent to the Steering Committee 11 days prior to the meeting. The Steering Committee was given responsibility for inviting those elected individual representatives "standing lawfully" on the day the Order (28 May 1992) was issued. The Steering Committee was deemed responsible for: determining the programmes related to the holding of the meeting; the topics to be discussed; determining the procedures; determining as necessary the daily and travel allowances of representatives attending the meeting; submitting the report on the meeting to SLORC within one month of the meeting; and carrying out all administrative functions.
30. The National Convention was convened for one-and-a-half days in January 1993 and was then postponed until 1 February when it was reconvened.
31. Beginning in early 1992, a mass exodus of Myanmar Muslims from Northern Rakhine state into Bangladesh was reported. At least 250,000 such persons are reliably reported to have sought refuge for fear of persecution. On 28 April 1992, the Governments of Myanmar and Bangladesh signed an agreement for the safe, voluntary return of the refugees. The repatriation programme was suspended and has now been resumed. At present many refugees appear unwilling to return to Myanmar without adequate international monitoring. According to sources, as of January 1993, approximately 17,000 refugees have returned to Myanmar; however the voluntary character of the return has been questioned and is of great concern to the international community.
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR
32. At the invitation of the Government of Myanmar, conveyed by a letter of the Minister for Foreign Affairs dated 27 August 1992, and accepted by the Special Rapporteur on 17 September 1992, the Special Rapporteur undertook a visit to that country from 7 to 14 December 1992. Prior to the visit, the Special Rapporteur had been in frequent contact with the Permanent Representative of Myanmar to the United Nations at Geneva and with the Minister for Foreign Affairs who cooperated fully and facilitated the visit which was originally scheduled for October but was, however, postponed until December for technical reasons.
33. The Special Rapporteur visited Myanmar from 7 to 14 December 1992. During this visit he was received by the Secretary I of SLORC, the Minister for Foreign Affairs, the Deputy Minister for Foreign Affairs, the Chief Justice, the Attorney General, the Minister for Development of Border Areas and National Races, the Information Committee and other high-level authorities of the Government. He also met with the Myanmar Red Cross Society. He visited some sites relevant to his mandate including Insein Prison, Rakhine state, the Dagon, Shwe Pyi Thar and Hlaing Thaya New Townships.
Meetings with the Minister for Foreign Affairs
34. The Minister for Foreign Affairs, U Ohn Gyaw received the Special Rapporteur on 8 and 14 December 1992. During these meetings he discussed a number of different issues relevant to the mandate of the Special Rapporteur. He stressed that, in regard to the National Convention and the drafting of the constitution, over eight different groups would be allowed to participate, representing all segments of society. He said that only the elected representatives were considered competent to draft the constitution, but that they required a mandate to do so. The National Convention would provide that mandate.
35. In regard to turning over the Government to the elected representatives, the Foreign Minister said that from the beginning, there had been a misconception. The mechanism for the transfer of power requires a basis for the transfer. There must be a constitution to determine who, for how long, under what circumstances. All of this had been laid out in SLORC Order No. 1/90. He further stated that the idea that power would be transferred within a certain period, so that the elected representatives could draft their own constitution, had been misunderstood by the international community. This was why Myanmar had "disassociated itself" from Commission resolution 1992/58 on the situation of human rights in Myanmar. The international community was interfering in the internal concerns and sovereignty of Myanmar. In any case, Myanmar was a country with many different ethnic groups and the Government must maintain the integrity of the State.
36. The Convention would be a step towards democracy and the Government wanted to be doubly sure and not make a mistake and go back to the situation of 1988 (to the democracy movement demonstrations). The Foreign Minister said that the United Nations or another country may tell Myanmar to go ahead, but that they could not risk losing a century by making a mistake. He stated that the constitutional process was not held before the elections because of caution regarding the 1988 events. He stated that there were some insurgents who would like to move in from the outlying areas and the Government had a responsibility to maintain normal law and order.
37. Mr. Ohn Gyaw stated that there would not be any international observation of the process because "it is a matter of internal affairs not for too many cooks".
38. In regard to the 1982 Citizenship Act, he said that there were citizens, associate citizens and foreigners. The second group is the offspring of those who were citizens of Myanmar and intermarried with foreigners. For example, he cited that his son was a citizen, while he was not. Under the new law, his son would be granted all the rights of citizens, such as the ability to own land and benefit from all business rights which he had not been allowed to enjoy. He said that 98 per cent of the people benefitting from this new act were of Bengali descent and would thus be able to hold land, but he was not sure associate citizens would be allowed to hold or own land. He stated that persons who could not produce an identity card would have a problem.
39. Concerning the utilization of the Office of the United Nations High Commissioner for Refugees (UNHCR) to facilitate the repatriation of Myanmar Muslims to Rakhine state, he said that Myanmar had not asked for one penny from the international community or UNHCR for the repatriations. The Government was paying for all of the aid. He further stated that the idea that these persons' goods, lands, and houses had been taken away is false. Myanmar is taking care of the problems and is able to cope with the flows. Nor does Myanmar need the aid of the International Committee of the Red Cross.
40. He stated that some subversive campaigns in Bangladesh, kept persons from coming back. These insurgents are causing trouble to the Bangladesh Government and they are trying to convince people not to repatriate. There are some persons from the Middle East who are promising jobs and other things, but most of these people realize they must repatriate. He said that when the regular immigration process resumes, the Government will send back to Bangladesh those who did not get immigration cards.
41. He said however, that "it is a rubbish thing that people have left Myanmar. These people who are in the refugee camps in Bangladesh are perhaps from Dhaka, but not one single person has left Burma."
42. The Foreign Minister stated that the allegations received as to human rights violations regarding forced portering by the military were completely false. This, he stated was the weakness of the United Nations. It was being manipulated by the insurgents.
Meeting with Secretary I of SLORC, General Khin Nyunt
43. General Khin Nyunt received the Special Rapporteur by stating that his Government had accepted the Special Rapporteur more on a personal basis than on an institutional one.
44. He stated that there were many accusations of human rights violations in Myanmar, but that the Special Rapporteur should understand that Myanmar has a population of 43 million. The Government, he said, was giving priority to the economic well-being of these people. This should not be hampered by a small group of illegal persons. In fact, before the arrival of the Special Rapporteur, there were rumours that some anti-government groups might "stage up" to give a distorted image of the country. They had heard that a person would dress like a monk and lie down in front of the Special Rapporteur's car. But, in fact, during the short period of four years since the SLORC had assumed power, the Government of Myanmar was doing its best to improve the life and welfare of all the people in that country. In the case of Myanmar, whatever the Government does, it is criticized. All countries should respect human rights without distinction and Myanmar had done its best in that direction.
45. In this regard, General Khin Nyunt said that the three new townships seen by the Special Rapporteur were projects which has endeavoured to improve the life, welfare and economic and social rights of the people. Hlaing Thaya was a place where the poorest people of Yangon had moved. They used to be the illegal dwellers of temples and cemeteries. In this township, the Government had tried to improve the living conditions of the residents by establishing schools, hospitals and other facilities. People were given land free of charge. In Dagon New township, there are also some more well-to-do people. There are markets and schools and a university would be established soon.
46. He cited the border areas' construction projects of roads and bridges. He said that local inhabitants were voluntarily cooperating in these development projects. Accusations of forced labour were distorted. Such accusations, he said, "are disseminated by the terrorist people and groups".
47. He said in regard to persons who did not make contact with the Special Rapporteur, that there may have been some who did not wish to see the Special Rapporteur. It was not because the Government prevented them from doing so, but because they are engaged in illegal activities. Those who break the law will do the same after their release. He said that some released prisoners were having relations with the minute terrorist groups. There are also some people from political parties who may break the law. They were free to engage in business or other legal activities, but not illegal activities. In any country, law and order must be maintained. Those who break the law must be punished.
48. He said that the slanderous stories about torture and ill-treatment were not true. There may be some prison wardens who treat prisoners badly. They are disciplined in accordance with the law. He said that the Special Rapporteur had been allowed to see more than he had seen the previous year at Insein Prison. The reason why he was not shown more this year, was that there was concern that some prisoners might have caused harm or presented danger to the visitors.
49. He said that during the Special Rapporteur's visit to Rakhine state he saw a lot and could see that the stories coming out were not true. He said that the Special Rapporteur had observed the Mayor's (foot) marathon. The people were enjoying that event enthusiastically. It was not something that a Government could arrange. The event was the third one and had been planned way in advance and not to coincide with the visit. At the end of the month, there would be the traditional boat regatta which many people would attend.
50. He stated that regarding actions by military personnel, Myanmar has a green book which explains rules and regulations to be followed by the members of the armed forces including those concerning punishment in case of violations. Such violations will be tried by a court martial. In the case of serious offenses such as murder or rape, the case may be transferred to an ordinary court to assure impartiality. These rules and regulations are strictly applied and there is no way that a member of the armed forces would violate the human rights of the ordinary people.
51. He said that the green book was distributed from generals down to the lowest soldiers. The Government does not deny that in the heat of fighting, these regulations may be violated, but the media exaggerates. As soon as such an incident is known, immediate action is taken.
52. He said that his Government knew that one of the two ladies accompanying the Special Rapporteur (the person referred to was the qualified interpreter for the Special Rapporteur) participated in an anti-government demonstration in front of the Embassy of Myanmar in London on 27 May 1991. He said he would show the Special Rapporteur two pictures to prove this. In spite of knowing this, the Government accepted the Special Rapporteur because they thought they should pay respect to him. He said that even after the Special Rapporteur came to Myanmar, her orientation was to organize meetings between the Special Rapporteur and anti-government groups. He stated that he said this not to complain, but simply to call the Special Rapporteur's attention to the fact.
53. He ended the meeting by stating that the Government was attempting to develop the country politically, economically and socially, and that although there were problems, they would overcome them. They could not destroy or disintegrate the country. They would carry on action in accordance with the law against any activity aimed at disunity and destruction of the country.
54. Politicians were quite free to go about their business and to travel freely in the country with the permission of the Government. However, they could not be allowed to disturb the peace and tranquillity or bring about disorder. In order to understand the human rights situation in the country, the situation had to be seen in the total framework as explained by him. The Government is not repressing the people tightly.
Visit to the three new townships
55. The Special Rapporteur was taken on 11 December 1992 to the three new townships, Dagon, Shwe Pyi Thar and Hlaing Thaya. Dagon Township lies about 45 minutes outside of Yangon on the banks of the Nayoma Creek and can be reached by crossing a small bridge on the road which connects it to Yangon. At Dagon New Township, the Special Rapporteur was shown the site of the new university which is to replace Yangon University. The professors from Yangon University will be transferred to the new university. Yangon University will then be used as a post-graduate University. In the first phase the University will accept 5,000 students in August of 1993 and eventually will accommodate up to 80,000 students in a self-contained community with its own water system, hospital, transportation and residential facilities. The education will be partly subsidized by the State.
56. The Government informed the Special Rapporteur that people from Yangon and other areas voluntarily moved to Dagon for a better life. There, they were afforded a plot of land for a nominal fee and were allowed to construct their own homes. There is a hospital, a new water system, elementary and secondary schools, businesses and other means of livelihood for the inhabitants and low-cost transportation to Yangon.
57. Shwe Pyi Thar is a new township populated by some people who, according to the Government, moved voluntarily, and others who were forced to move because they were living illegally in the city as squatters or homeless persons. For 5,000 kyats they may buy a plot of land 20 feet by 60 feet and may build their own home. Most of the inhabitants are day labourers who earn between 30 to 75 kyats per day and the Government gives some subsidies for the purchase of the land.
58. Here too, there is a hospital, markets, schools and other facilities for the self-containment of the community. The Special Rapporteur was taken for a tour of the approximately 20 to 25 bed hospital where the Special Rapporteur was told that people were being treated for dysentery, tuberculosis and other respiratory diseases, natural and problematic pregnancies and some nutritionally related diseases. The Special Rapporteur was also shown a new youth sports facility with a demonstration by the children of all the activities.
59. Hlaing Thaya is the largest of the new townships with 150,000 inhabitants. It may be reached by ferry boat. The Special Rapporteur was shown the sections first developed and inhabited before 1988. The inhabitants are mostly formerly homeless persons who had been living illegally in cemeteries in Yangon. The Government told the Special Rapporteur that the persons were not forcibly moved, but that once they were told that they were living illegally, they chose to move to Hlaing Thaya. There is a Yangon City Development Committee, which oversees its development and a Director of the Human Settlement Housing Development. There is a committee for the development of plots of land 20 feet by 40 feet, which generally cost 1,500 kyats, but if the family cannot afford this, the Government subsidizes the land. The families build their own homes.
60. Most of the inhabitants were said to be jobless but the Government is trying to find jobs for them. There is social welfare and schooling. There is a 25 bed hospital, which the Special Rapporteur was unable to see due to lack of time. On the way back to Yangon, the Special Rapporteur was shown a modern highway and overpass construction site which had been recently built.
Visit to Insein Prison
61. At Insein Prison the Special Rapporteur was given an extensive tour of the grounds, on which new vegetables and flowers had been planted. He was shown the workshop buildings, the tower, prisoners taking their afternoon bath, the hospital, which appeared to house prisoners instead of sick persons, and a small kitchen with freshly prepared pots of food. The facilities had been freshly painted.
62. The Special Rapporteur was not allowed to see any of the detainees he had requested to meet. These prisoners were detained under SLORC Order 1/88 prohibiting the assembly of five or more persons or under the 1950 Emergency Provisions Act. Several of them belonged to political parties, some were students and one was a monk. In the case of the monk, U Zaw Tika, the Special Rapporteur received allegations while in Myanmar, that he had died from torture received while in custody at Insein Prison. The authorities told the Special Rapporteur that such a person, as far as they knew, did not exist. The authorities stated that when a monk is arrested, he is defrocked and given a lay name, and suggested that this could be the reason why they were unaware of any such person. According to the prison authorities, five of the detainees the Special Rapporteur requested to see were in good health. These are: U Tin Oo, U Kyi Maung, Zagana, Min Lo Naing and Tin Tun. Five others were reported as "not known to the authorities". They are: U Win Tin, U Khun Sai, U Tun Shwin, Myint Sein and U Shwe Tin.
63. The Special Rapporteur had made a request in writing on the first day of his stay in Myanmar as to the detainees he wished to see and asked for free access to those and other detainees at Insein Prison.
64. After repeated requests made orally, the Special Rapporteur was told that the higher authorities do not interfere with the running of the prison and that the request should be made to the prison authorities. At the time of the prison visit, the prison authorities stated that they were unable to comply with the Special Rapporteur's request to see the detainees because they required authorization from higher authorities. Subsequent to the prison visit, it was explained to the Special Rapporteur that the reason he was not allowed to see the detainees is because the Government was concerned "that some prisoners may give harm or danger to visitors".
Visit to Rakhine state
65. The Special Rapporteur made a one-and-a-half day trip to Rakhine state where he was able to speak with a number of Myanmar Muslim village leaders and to ask them about religious and ethnic tolerance. The villagers were assembled by the Government and Government authorities were seated with the Special Rapporteur during the encounter. Some other villagers were also asked questions by the Special Rapporteur as he passed by with the Government officials.
66. Other persons in Yangon whom the Special Rapporteur had formally requested to see and many persons with whom he either wished to make contact or who had expressed a wish to see him, were not allowed to receive or speak to the Special Rapporteur. Almost all of these persons were visited by the military intelligence. The Special Rapporteur was told that "... persons are free to engage in business or other legal activities but not in illegal activities. There may be some who do not wish to come to see you. It is not because the Government is preventing (them) from seeing you but because they are engaged in illegal activities."
67. In regard to this situation, the Special Rapporteur transmitted on the last day of his visit, 14 December 1992, the following letter to the Government:
"Excellency,
"I have the honour to refer to your letter of 27 August 1992 in which your Government stated that it looked forward to welcoming me to Myanmar as an expression of continuing cooperation with the United Nations.
"As you are aware, by operative paragraph 3 of Commission on Human Rights resolution 1992/58 on the situation of human rights in Myanmar, the Commission decided to nominate a special rapporteur for the purpose of, inter alia, establishing direct contacts with the Government of Myanmar and with the people of Myanmar, including political leaders deprived of their liberty ... I wish to bring to the attention of your Government my concern that, in addition to being prohibited from establishing direct contact with any of the political leaders deprived of their liberty, direct contact with many of the people of Myanmar useful to my mandate, was made impossible.
"It has come to my attention that during the course of my visit, several persons wishing to make direct contact with the Special Rapporteur or persons whom the Special Rapporteur requested to contact, were reportedly visited by members of the intelligence services and told not to establish or receive contact with the Special Rapporteur and the accompanying United Nations staff members. Under Commission on Human Rights resolution 1992/59 regarding reprisals directed at groups or individuals cooperating with the United Nations' bodies, it is stated that threats or intimidation against witnesses or persons wishing to cooperate with the United Nations are prohibited. This resolution further states that Governments should take all steps necessary to protect the lives and physical integrity of these persons.
"I urge the Government of Myanmar to take the necessary steps to comply with the above cited resolution.
"Accept Excellency, the assurances of my highest consideration."
68. By letter dated 23 December 1992, the Minister for Foreign Affairs of Myanmar responded to the Special Rapporteur's letter:
"Dear Professor Yokota,
"I refer to your letter dated 14 December 1992 and I wish to convey that I am quite dismayed at the tone and the substantive thrust of the various points you raised.
"As you are aware, we in Myanmar are consistently sincere in our wish to have a continuing cooperation with the United Nations. But this cooperation cannot be a channel to override the fundamental principles of national sovereignty and non-interference in the internal affairs of Nation States, as enshrined in the Charter of the United Nations.
"To be specific, you mentioned your mandate as 'establishing direct contacts with ... including political leaders deprived of their liberty...'. As explained many times previously, I reiterate that there are no political prisoners in this country, but only some politicians who are under detention for breaking the established laws of this nation.
"You also mentioned that 'persons whom the Special Rapporteur has requested to contact were reportedly visited by members of the intelligence service and told not to establish or receive contact with the Special Rapporteur ...'. In this regard, I do regret that you have put in your official letter one side of the story which you were kind enough to qualify by 'reportedly'.
"Even if such an unfounded allegation has taken place, being 'told not to' cannot conceivably be construed as 'threats or intimidation'.
"I avail myself of this opportunity to convey to you our sincere and continuing wish to cooperate with the United Nations in the belief that it is an important element of our systematic endeavour towards establishing the democratic system in an atmosphere of peace, tranquillity, prosperity and orderly processes rather than under anarchy, disintegration of the nation, and tragic and senseless destructive acts,.
"This democratic system we aim to establish will be on foundations that are within the parameters of our history, traditions and culture."
Please accept, Professor, the renewed assurances of my high consideration.
Yours Sincerely, Ohn Gyaw
III. ALLEGATIONS
A. Right to Life
1. Death Penalty
69. The death sentence is permitted under Myanmar law; nevertheless, no death sentence has been carried out since 1988. In July 1989, SLORC Order No. 1/89 established military tribunals and SLORC Order No. 2/89 established the procedures for adjudication through military tribunals of persons contravening any SLORC Order. Under these provisions, military tribunals were competent to hand down penalties of no less than three years' imprisonment, life imprisonment or the death penalty.
70. On 6 September 1992, by SLORC Order No. 12/92, military tribunals were revoked and on 1 January 1993, by SLORC Order No. 1/93, all death sentences passed by civil or military courts or tribunals between 18 September 1988 and 31 December 1992 were commuted to transportation for life (life imprisonment).
2. Summary or arbitrary executions in the context of armed conflict
71. On 5 October 1992, the Myanmar Minister for Foreign Affairs, U Ohn Gyaw, addressed the United Nations General Assembly stating that in April 1992, the SLORC had suspended "all offensive operations in Kaying state and other parts of the country to consolidate national solidarity and unity". (See statement by His Excellency U Ohn Gyaw, Minister for Foreign Affairs and Chairman of the Delegation of the Union of Myanmar, in the general debate of the General Assembly at its forty-seventh session, p. 10).
72. According to other information provided by non-governmental sources to the Special Rapporteur, many of the violations described below that had occurred before the cease-fire reportedly continued to occur. Although the direct military attacks did cease during the rainy season, they are alleged to have begun again. In addition, many of the violations reported did not take place as a result of the direct military "offensives". The Special Rapporteur was told that in areas within or near conflict zones in the Kayin, Kachin and Karenni states, many persons had been summarily executed for being suspected of insurgency by the army. In other cases, civilians suspected of giving aid to insurgents, either materially or by providing food or shelter were executed.
73. One woman from Kayin state told the Special Rapporteur that the military had recently entered her village because they suspected the villagers were lending support to the insurgents. She stated that as she and some other villagers were attempting to escape into the jungle, the military shot dead the two persons behind her.
74. The Special Rapporteur was informed that if the military suspected that villagers were insurgents or were providing aid to insurgents, that entire village was often given orders to relocate by the Township Level Law and Order Restoration Council (LORC). In a number of cases reported to the Special Rapporteur, civilians were executed when they either refused to relocate upon orders or when they attempted to escape to avoid relocation.
75. One 18-year-old woman from Pruso Town told the Special Rapporteur that her 20-year-old husband had been shot dead in front of her for having disobeyed orders to relocate. The woman told the Special Rapporteur that the military had come to her village with location orders. She, her husband and two other persons had fled nearby to work on another parcel of land. The military continued the relocation operation in the area and when they arrived one week later at the location where the woman and her husband had fled, they did not speak or give any warning before shooting. The woman's father-in-law later came out of hiding to fetch some water and was shot dead by the military.
76. The Special Rapporteur was shown a relocation order dated 6 March 1992 (Pruso LORC 385) from Pruso Township, Kayah state. Fifty-seven villages were listed as being required to move. The Order stated that those who did not move by 20 March 1992 would be considered "bandit-insurgents" and "would be eliminated".
3. Death as a consequence of rape
77. Information received from over 30 interviews with Myanmar Muslim women from Rakhine state and other women from areas of armed conflict indicated that a large number of rapes by entire groups of Myanmar military had been taking place. Many women provided testimony that women in villages relocated by the army were rounded up and taken to military barracks where they were continually raped. In other circumstances, women have allegedly been taken by the military when the husband, or other male in the family, had fled at the approach of the army. Often, the "pretty" or young ones were raped immediately in front of family members and then taken away. Women who had returned to their villages stated that some of the women among them had died as a result of the continual rapes. Two female health workers interviewed by the Special Rapporteur reported that in their clinic, women with rape wounds had been admitted and had later died from bleeding or subsequent infection. It was reported to the Special Rapporteur that on 9 March 1992, members of SLORC Regiment 254 raped and killed nine women (Tomg Du Kai, Lamung Tu, Marau Htu, Jingphaw Lu, Mi Htoi Roi, Hpau Roi, Shi Hpau La Hkawn, Shi Hpau Rim Roi) near Yonan stream, Bhamo township in Kachin state.
78. Due to time constraints and the difficulty in obtaining data on this delicate subject, the Special Rapporteur wishes to point out that his findings are not complete and that the true extent of the problem could not be ascertained during this initial visit.
4. Death of forced porters
79. According to testimony received by the Special Rapporteur, thousands of persons have been killed since 1988 by the military throughout Myanmar while providing forced portering for the military. Amongst the most affected groups seem to be the Myanmar Muslims of Rakhine state, the Karen, Shan and the Mon.
80. Dozens of persons from different states interviewed by the Special Rapporteur provided testimony. Witnesses from several areas told the Special Rapporteur that although some persons were able to bribe their way out of portering, most could not afford to. From the number of persons interviewed who gave corroborating evidence, there is strong evidence suggesting a systematic pattern of summary or arbitrary execution of forced porters.
81. One person told the Special Rapporteur that hundreds of young boys from Kalor and Palong had been taken between February 1989 and March 1990 as forced porters. He stated that most of them were taken when they went to fetch water at the reservoir near the military barracks where seven different regiments were posted including Regiment 114. He witnessed one truckload of about 80 boys being taken from Shan state to Kayah state. He reportedly witnessed boys being put on the front line carrying military equipment and huge rice bags. When they were caught in crossfire, many of the boys were killed. This same witness told the Special Rapporteur that the convicts (Gurkas) were even more at risk as porters since they were tied together so that they could not escape. In another incident, a young porter was seen being beaten to death by the military for talking back.
82. In a further reported case in Kayah state, porters were allegedly used as mine-sweepers. Two young boys had been taken as porters when they could not pay the 5,000 Kyats demanded as a bribe. They were forced to act as mine-sweepers. When a soldier ventured forth and stepped on a mine, one of the boys was told to carry him, but the soldier died. The porter was then reportedly severely beaten by the other soldiers. He managed to escape, but died a few days later in a hospital in Kalor.
83. The Special Rapporteur was told by dozens of refugees, all Myanmar Muslims from Rakhine state in the Jumapara Transit and Gumdum refugee camps in Bangladesh, that men were routinely taken from the villages for forced portering. Witnesses said that many of the men had been killed while attempting to flee. Numerous women told the Special Rapporteur that their husbands had been taken away for portering and had not been seen again. Furthermore, only a few of these women were able to verify if their husbands were in fact dead or alive.
84. One Karen witness told the Special Rapporteur that during the time he was forced to be a porter, he saw many others killed when they were unable to carry the heavy loads. In one such case, a porter fell and was unable to get up. A sergeant kicked and hit him with a rifle butt until he died. In another case, a man of Indian descent fainted. The same sergeant who had killed the above-mentioned porter, kicked him and then drowned him in a stream.
5. Death during forced labour other than portering
85. According to the testimony of persons taken to provide labour in the construction of railroads (Aung Ban-Loikaw railroad), roads or clearing jungle areas for the military, hundreds of persons were killed by the military when, as with porters, they were unable to carry loads and to continue the hard labour. The labour projects reportedly included two major railway projects, other border development projects of the Government, particularly along the Thai-Myanmar border, and labour for the military particularly in the areas of conflict in the Karen, Karenni, Shan, and Mon areas.
86. It was reported however that the labourers died most frequently as a result of constant beatings, unsanitary conditions, lack of food and lack of medical treatment, once they became sick or wounded and unable to continue work. Witnesses also provided information that some friends or relatives who returned from the work in the border development projects died afterwards as a result of the wounds and diseases contracted during their labour.
6. Death as a result of the prohibition of freedom of political participation, expression and assembly
87. Thousands of persons were reportedly summarily executed during the mass demonstrations for democracy in 1988 and during the student strike in December 1990. A number of persons who had participated in the demonstrations told the Special Rapporteur that the demonstrators were unarmed and had been attacked by the military. Students, professionals, workers and thousands of poor people including organized beggars were shot or beaten to death while demonstrating. One man in Yangon saw the military transporting bodies in trucks during the following days.
88. One person from the new township, Hlain Thaya, who had been in close proximity to the bodies of the students killed in the 1990 strike, told the Special Rapporteur that the military brought many bodies to Hlain Thaya for mass burial. In one truckload, most of the bodies had bullet wounds, but that in another, the heads and faces of most of the students had been beaten and crushed.
7. Death in custody
89. The Special Rapporteur was given extensive testimony as to the pattern of the deaths in custody, however, the number of persons actually reported to have died while in custody are limited to those who were well-known or persons who were related to or known by those who were able to make contact with the Special Rapporteur. According to evidence received, the true number of deaths are far greater.
90. In the cases received by the Special Rapporteur in which violations of the right to life occurred while in detention and in which charges were filed, these detentions were primarily carried out under SLORC orders, the 1950 Emergency Provisions Act, particularly 5(J) article 17 (1) of the 1908 Unlawful Association Act and article 122 (1) of the Penal Code regarding punishment for high treason. The Special Rapporteur received information that some violations of the right to life of leaders of political activities reportedly occurred after these persons were arrested under laws pertaining to common criminality.
91. Deaths in custody were most frequently reported to have been a result of torture or the result of torture aggravated by the conditions of detention. Detainees are reportedly provided with insufficient, often spoiled food. The vegetables grown within the prisons are allegedly cultivated with human fertilizer further provoking the spread of disease. The prisoners are kept in unsanitary conditions in small cells, forced to sleep on cold cement floors and denied blankets and clothing.
92. It was reported that a doctor made rounds once a week, but that he rarely stopped at any of the cells. In some cases, the Special Rapporteur was told that those who complained of a medical problem were beaten. Medical treatment, if provided, was insufficient in quality and quantity of both medication as well as medical supervision.
93. It was reported that when families tried to provide food, clothing or medicine to detainees, they were either confiscated by the authorities or thrown away.
94. The following provides a list of some political leaders and elected representatives, students and monks who are known to have died while in the custody of the Myanmar authorities:
(a) Maung Thawka, aka U Ba Thaw, 65 years old (NLD CC member) was arrested on 23 July 1989 and sentenced in October 1989 to 20 years' hard labour under Sections 5(A) and 5(B) of the Emergency Provisions Act. He was suffering from severe spondylitis, a spinal disease and was severely beaten during the September 1990 hunger strike in Insein Prison so that his right side was paralysed. He died on 9 June 1991.
(b) U Maung Ko, (NLD CC Member), 52 years old, was arrested on 23 October 1990 and died in jail on 9 November 1990 - while the High Commission for Refugees, Mrs. Ogata was on mission in Myanmar. He was not sentenced. He had been a close friend of ASSK, and died from torture.
(c) U Tim Maung Win, 50 years old, (NLD MP for Kayan Township Constituency-2), was arrested on 23 October 1990 and sentenced to 5 years' imprisonment, though it is not clear under which law. He died on 18 January 1991, allegedly from leukaemia, though his family and his family doctor insist that he was not known to have leukaemia before his arrest. He was believed to have died from torture.
(d) U Nyo Win, 60 years old, Secretary of the People's Progressive Party, which was denounced by the SLORC as a communist organization. He was arrested in July 1989 and died as a result of torture on 15 March 1991. He was sent to the hospital in Ygn three days before he died and is reported to have asked after Tin Maung Win (mentioned above
-indicating that they had been tortured together. No reason for death was given. It is not known if he had been sentenced).
(e) Bo Set Yaung, aka U Khin Maung, over 80 years old. His wife and eldest daughter were also arrested. Both are still in jail on charges of being in contact with the Communist Party (BCP). He had poor health and was denied medical treatment. He died in solitary confinement in February 1990. It is not known whether he was sentenced.
(f) Kyaw Myo Thant, 25, arrested July 1989, died in May 1990. He was sentenced under SLORC Order 8/88.
(g) U Oo Tha Tun, 32 arrested on 7 May 1990 under 5(j) of the Emergency Provisions Act. Member of the Arakan League for Democracy. Died in July 1991. Cause unknown, also unknown whether he was given medical treatment.
(h) Soe Htay, 19 years old, was arrested on 12 April 1991 and died on 16 April 1991, reportedly as a result of torture. He was an active NLD member. He had not been sentenced.
(i) Mohamed Ilyas, over 65 years of age, a political leader from Arakan state. He was arrested on 16 June 1992 and died in hospital on 19 June. According to testimony received by the Special Rapporteur, he had been severely tortured.
(j) U Zawtikka, sayadaw of Shwe Phone Pyint monastery who died in custody in December 1992. He had been treated in a hospital for cancer but was returned to jail where he died. Sentence and arrest date unknown.
(k) U Soe Win, arrested in 1988, from Mandalay, and died in custody, the date cannot be confirmed.
8. Death of HIV-positive female prostitutes
95. According to information made available, a group of women from Myanmar were either forced (sold) into prostitution or lured into prostitution in Thailand by men promising jobs with high pay. The women contracted HIV/AIDS and were repatriated from Thailand to Burma. After this, according to some sources, the women were killed with cyanide capsules by Myanmar authorities. Another source indicated that the women "disappeared" after being returned to Myanmar. One source told the Special Rapporteur it was likely the women had been killed, although perhaps not by cyanide. Another explanation given was that they returned to their families; while another source indicated that they could never return to their villages and families, but that perhaps some of them went into hiding in other villages where they would not be known. The composite of evidence suggests they may have been killed upon their return to Myanmar but the information gathered by the Special Rapporteur was insufficient to come to a firm conclusion as to the fate of these women.
96. Persons providing information to the Special Rapporteur alleged that the following is only one such case known. Over a dozen rescued Myanmar prostitutes, ages 14 to 20, were seen by the Special Rapporteur, but it was not known how many of them were HIV-positive (estimates of infection of prostitutes in Thailand vary between 60 to 90 per cent).
B. Torture, cruel, inhuman or degrading punishment
1. Treatment of persons during armed conflict
97. The Special Rapporteur received some allegations regarding the ill-treatment by the Myanmar military of insurgent prisoners of war (POWs), however, the Special Rapporteur was not able to assess these allegations because he did not have access to any sites of POW detention or to relevant witnesses, nor was he made aware of any released POWs who may have been able to provide first-hand testimony.
98. In regard to war-time violations, a high-level Government source stated that at the lower level, in the heat of fighting, the rules and regulations in the military manual prohibiting physical integrity rights may be violated, but, the media exaggerates, and as soon as the Government is made aware of such an incident, it takes immediate action.
99. The Special Rapporteur also received some allegations of physical ill-treatment of POWs detained by insurgent groups but due to a lack of access to witnesses, he was also unable to assess these reports.
100. Allegations were received of torture of persons suspected of being insurgents. One 30-year-old Karen man told the Special Rapporteur that he had been seen picking pumpkins in a field and was carrying some back to town when he was detained by some soldiers. He was taken to the officer-in-charge who was told by the soldiers that he had been carrying mines. He reported he was then tied up and taken to a location where porters had been rounded-up, and was kept bound while the porters were made to carry heavy loads. He was then told to inform on the insurgents. When he denied knowing anything, he allegedly was beaten and kicked and forced to dig, what he was told, was his own grave. Other forms of torture reportedly used during interrogation were rolling a metal pole up and down his shins, burning him with cigarettes on the feet and hands and covering his head with a cloth pulled tight to the brink of suffocation. After two and a half days, he escaped.
2. Forced portering
101. The Special Rapporteur received information from more than 30 persons regarding the occurrence of torture in the context of portering. The areas reportedly most affected were the Shan, Kayah, Mon, Kayin and Rakhine states. The porters told the Special Rapporteur that they were forced to carry munitions and other military equipment, sacks of rice and various provisions weighing 45 kilograms or more, often through mountainous terrain. They told the Special Rapporteur that the load cut into their shoulders, backs and legs and that when they were too weak or wounded to continue, or simply fell behind, they were beaten with rifle butts, bamboo or metal rods and kicked by the soldiers.
102. One man from Shan state told the Special Rapporteur that he had witnessed about 80 boys being taken away in an army truck from Kalaw town for portering. They were reportedly taken when they went to the reservoir to get water near the army camp and were transported to another military camp about 95 miles away. One of the boys, who was tortured but escaped from this group, told the Special Rapporteur that they were continuously beaten and that he saw many other porters succumb as a result of the beatings and the heavy loads. The Special Rapporteur has been informed that this witness has since died as a result of ill-treatment.
103. One man from Rakhine state showed the Special Rapporteur extensive scars on his back and shoulders allegedly received from the heavy loads and from beatings. He told the Special Rapporteur that he had escaped across the border and was afraid of being sent back to Myanmar.
104. The Special Rapporteur was informed that the harsh climatic conditions exacerbated the effects of the ill-treatment received by the porters. The mountain temperatures could be very cold at night but in some regions it was extremely hot during the day when they carried their loads, and thus a large proportion of the porters reportedly suffered from malaria, tuberculosis and other respiratory diseases, dysentery, parasitic infestations and infections of their open wounds. The Special Rapporteur was told that there was no medical care for those who were ill and as a result many died on the side of the road. The Special Rapporteur was also told that the porters were continually cursed and were insulted with racial or ethnic slurs.
3. Conditions under detention
105. Students, persons involved in politics, writers, professionals and relatives of suspect persons told the Special Rapporteur that they had been submitted to torture by the Myanmar authorities. The Special Rapporteur was told that most of the torture occurred during the initial interrogation period. The military intelligence units allegedly carried out most of the torture and the units named as having meted out the harshest treatment were the MI 7, and then the MI 6, 11 and 12. The harshest prisons were reportedly Insein, Thayawaddy and Thayet. The latter two, plus Mandalay Prison, which are located far from Yangon, were reportedly where prisoners who were not fit to be seen as a result of torture, would be sent, in order to avoid family visits.
106. Many different torture techniques were reportedly used, including severe beatings with metal rods and chains covered with rubber; the "iron road" which consisted of a metal rod being rubbed up and down the shins; being burned with cigarettes; made to maintain certain positions such as the "motorcycle" for hours; near suffocation or drownings; water torture; sleep deprivation; being made to dig "ones own grave"; and being forced to watch other detainees being tortured. One man told the Special Rapporteur that whilst under detention in an army camp, he was forced to watch women being raped by army personnel.
107. The Special Rapporteur was told by one student from Yangon that he was arrested in 1990 for his part in the demonstrations. He was allegedly interrogated by the MI 6 for a month during which time he withstood beatings, the "iron road", cigarette burnings on the face and hands, the rubber covered chain and near drowning. Afterwards he was taken to Insein Prison where he was kept in a special block (thi thant) away from the common criminals. He told the Special Rapporteur that the detainees in this block were beaten daily. Other students from this same block told the Special Rapporteur about "beating parties" to which one of the prison authorities would invite his friends.
108. Another person told the Special Rapporteur that he was sent to a special compound in Insein Prison called the "soldiers' dog kennel". In order to get through the passageway with a low roof, one was forced to crawl on hands and knees over bits of broken brick. The back part of the compound had large dogs posted all around it who poked their heads through gaps in the mesh fence. This person was taken to the hospital (the main ward A) after the hunger strikes which took place in 1990. There he was allegedly beaten with the rubber-covered chain.
109. Another person from Shan state told the Special Rapporteur that he was put in a cell into which water was constantly dripped regardless of where he would position himself, which resulted in concomitant sleep-deprivation.
110. Some women informed the Special Rapporteur that they were generally treated less harshly than the men with the exception of the MI 7 which allegedly dealt with them as they did with the men. The Special Rapporteur was told that generally the interrogations were carried out by men with a woman present. They reported beatings, sleep deprivation, threats to their families and hearing other women being beaten. One young woman who was half Karen and half Rakhine was allegedly severely beaten by the MI 7 before she was brought to Insein Prison.
111. Women from the Rakhine state were allegedly brought to army barracks and kept there for raping. The Special Rapporteur received information that some women being forced to relocate were raped in front of their families and one man told the Special Rapporteur he was forced to watch a woman being raped.
112. One person told the Special Rapporteur that in one military prison near Kalaw, a Muslim boy of 17 was ordered to clean out the pigsty, but being Muslim, he refused. He was then brought in front of the other detainees and beaten. The prisoners were forced to watch as the boy's head was repeatedly dunked into a bucket of filth containing live insects. The boy was then allegedly taken away and never seen again.
113. The most difficult aspect of the prison conditions was reportedly the extreme deprivation of water for all purposes. The Special Rapporteur was told many times that detainees were forced to sleep on cold cement and that practically all of them suffered resultant paralysis of their limbs as well as respiratory infections. The food was allegedly insufficient and of poor quality, and sometimes spoiled. The cells were small and there was no provision for adequate hygiene. As a result, almost all detainees also reportedly suffered from dysentery.
114. The Special Rapporteur was told that the doctor came around once a week, but usually did not stop at the cells and never entered them to check persons complaining of a disorder. Patients in hospitals were allegedly rarely given any medication and what they were given was rarely adequate.
C. Disappearances
115. The Special Rapporteur was told that many of the cases of persons in prison had actually begun as disappearances. Many persons reported that their families did not know where they had been taken, and as family visits were only allowed after sentencing, many were held incommunicado detention for months. Some families had learned from other released prisoners or through sympathetic prison guards where their relative was being held, but they could not go to the prison to see them. None of the cases received by the Special Rapporteur of transferred prisoners were reported to their families, particularly as transfers allegedly often took place after torture. Some persons who were detained after the 1988 demonstrations and who were not well known reportedly remain disappeared.
116. It came to the Special Rapporteur's attention that after the 1988 and 1990 demonstrations, many persons disappeared. Numerous persons told the Special Rapporteur that they assumed that their relatives had been killed, but that the authorities denied any allegations and have never made any statements or taken any action to clarify the fate of these persons or to return the bodies for identification and proper burial. It was alleged several times that many bodies of persons killed by the military during the demonstrations were taken for mass burial in a military intelligence compound near the airport (Yae Kyi Aing) and to the new township, Hlaing Thaya. The Special Rapporteur was requested to encourage investigations into these alleged mass graves to clarify the fates of the disappeared persons.
D. Arbitrary and prolonged detention
117. The Nobel-prize winner, Daw Aung San Suu Kyi is the only person being held under prolonged house detention without trial, under the 1975 State Protection Act. She has been detained since May 1989. It has been reported that her health has suffered and that she recently undertook a hunger strike. Recent reports stated that she would probably be tried after the National Convention and after the new Constitution was drafted under the laws of the new Constitution. The Special Rapporteur was not allowed to see her. High level-authorities told the Special Rapporteur that this was because the law and order needs of the other 43 million inhabitants of Myanmar could not be prejudiced by one person considered important by outside countries or organizations.
118. Other persons in fact have not been arbitrarily detained in the sense that they have been charged with contravention of one of the martial or other emergency laws. In a few cases, persons involved in politics were charged with the commission of a common crime. The Special Rapporteur was told, however, that persons were kept for long periods before being presented before a military tribunal and sentenced.
119. The Special Rapporteur was told that detainees taken before military tribunals were told to plead guilty in order to reduce their sentences. Most told the Special Rapporteur they had refused. The military tribunals were reportedly set up with one "judge" who did not ask for witnesses, evidence or other testimony. The detainees were allegedly not allowed any counsel or other defence and were never told when they would be brought before a tribunal. Most often, after reading the charges against the person, the judge reportedly read out the sentence. Several persons were reportedly not sentenced until days before their release. The majority of persons who provided testimony to the Special Rapporteur were released under SLORC Order 92/11 in April of 1992. A total of over 1,700 persons are known to have been released under this order. Since December of 1992, reports indicate that arrests and detentions have continued. Among the approximately 30 persons known to have been detained are the following 4 persons: Thein Htun, Moe Kyaw Oo, Naing Ko Ko, Yi Yi Myint (female).
E. Freedom of expression
120. During his visit the Special Rapporteur was pleased to note that several members of the foreign press, including members of a foreign television camera crew were allowed entry into Myanmar. These persons were allowed free access to many public areas and public events such as a foot marathon in Yangon, but were not allowed access to detainees inside prisons, or to border regions, including Rakhine state.
121. Nevertheless, the Special Rapporteur was informed that within Myanmar the written press, radio and television continued to be subject to governmental censorship, and that the distribution of written material was also subject to governmental limitations and control.
122. The Government also told the Special Rapporteur that the foreign press would not be allowed at the National Convention or to be present at the drafting of the Constitution.
123. In July 1989, reportedly hundreds of NLD members distributed leaflets. Many were allegedly detained, but the Special Rapporteur was told that it was not known why, of those detained, six young boys (all eight-year olds) were singled out for sentencing.
124. Persons who were detained were allegedly not able to publish at all after they were released. One actor was allegedly unable to appear in movies after his release.
125. One writer told the Special Rapporteur that all writers were obliged to fill in questionnaires regarding their political beliefs. Those who refused or answered "wrongly" were subsequently restricted from publishing and many were detained.
126. The Special Rapporteur was informed by persons released from prison in 1992 that during their detention they were not allowed any written material, including the State-run newspaper, or material with which to write or non-political literature; they were reportedly also denied access to radios.
127. Contact with foreigners is legally prohibited including receiving or passing information or written material.
F. Situation of Myanmar Muslims of Rakhine state
128. The Special Rapporteur was informed by Governments, specialized agencies and non-governmental organizations working in academic settings that Myanmar Muslims of Rakhine state (or Arakan state) comprise approximately 40 per cent of the 3 million inhabitants. He was told that Muslim persons began their migration into Myanmar in the twelfth and thirteenth centuries. A second wave of migration took place in the seventeenth century and a third in the early nineteenth century. This last movement took place while Myanmar, (then Burma) was a colony under British rule. Bangladesh at that time, was part of India and Burma was ruled by greater Indian governance rather than by the authorities in Britain. Movement of persons across what would later become national borders between Bangladesh and India or India and Myanmar was then unimpeded and natural. By the time Burma became an independent Union in 1948, there was a consolidated Burmese Muslim population of Indian/Bangladeshi ethnic origin.
129. Non-governmental sources told the Special Rapporteur that the movement of this group has been restricted since independence. The restrictions on movement prevented them in part from making the initial application for citizenship in 1948, as well as for any category of citizenship since. Because of the restrictions on movement, even identification or residency cards were often unavailable to these Muslim Rakhine.
130. All of the Myanmar Muslims from Rakhine state interviewed by the Special Rapporteur were born in Myanmar. Most said that their parents had been born in Myanmar, but they were not sure about their grandparents' birthplaces. Some of the persons interviewed spoke Burmese. Most spoke a certain Bengali dialect similar to the Chittagonian dialect which is spoken in the Bangladesh region bordering Rakhine state. The dialects are not identical however, and all of the persons interviewed spoke the dialect specific to Myanmar and not Bangladesh. The Special Rapporteur was informed that despite the fact that the language is indicative of historical residency in Myanmar by the Muslim Rakhine, their language is no longer officially recognized by the authorities as one of the "languages of Myanmar". The new nationality law requires that citizens be able to speak one of the officially recognized languages. Under this law, the Rakhine are thus excluded for qualification as citizens.
131. Nevertheless, contradictory information regarding citizenship status was compiled in that most of the persons interviewed said that they had been allowed to vote in the 1990 general elections, a right understood to be reserved for citizens.
132. The Special Rapporteur was told that when Burma became an independent Union, attempts were made to expel some of the Rakhine Muslim population, and the first flow of refugees took place. A large exodus took place in 1978 when a census was carried out and again in 1991 which marked the present mass exodus to Bangladesh.
133. Since that time, it is alleged, the resettlement policies to places other than sites of origin, have disrupted family integrity and curtailed access of this group to land adequate for making a living. The most recent Muslim Rakhine refugee flow, primarily to Bangladesh, began in 1988. At the time of the Special Rapporteur's visit to Bangladesh, there were approximately 250,000 Myanmar refugees in Bangladesh.
134. The Special Rapporteur had occasion to carry out numerous interviews with these refugees in three different refugee camps; nevertheless, due to time limitations, a complete analysis of the demographics was not possible. The Special Rapporteur, however, was able to ascertain that most of the refugee population comes from four Myanmar sub-districts, Buthidaung, Maungdaw, Rathedaung and Akyab all within Rakhine (Arakan) state. Over 95 per cent of the refugees are Muslim, however some Hindu Rakhine are also among this refugee population.
135. According to the information received and carefully reviewed by the Special Rapporteur, in addition to the non-respect for the family unit and lack of land resources due to arbitrary resettlement, the Muslim Rakhine are one of many ethnic minorities in Myanmar who have not been adequately granted civil, political, social, economic and cultural rights commensurate with those people considered "Burmese". Although the Special Rapporteur received information that some places of worship had been destroyed or debased, the composite of evidence carefully reviewed by the Special Rapporteur indicate that the systematic repression of the Rakhine Muslims and other minorities is based upon ethnic and racial intolerance rather than religious intolerance. They, like other ethnic minorities, along the Thai-Myanmar border, have been at high risk of being internally displaced by the army and taken for use as forced porters or forced labourers. These practices carried out by the Myanmar authorities, and most frequently the army, have given rise to the alleged grave violations of the physical integrity rights.
136. The Special Rapporteur received large amounts of direct testimony as well as other well-documented evidence indicating that the forced relocation and forced portering has led to a systematic pattern of torture (including rape) cruel, inhuman and degrading treatment, disappearance of arbitrary execution of Muslim and other Rakhine ethnic minorities by the Myanmar authorities.
137. Almost all of the persons interviewed by the Special Rapporteur indicated their fear of returning to Myanmar without international monitoring not only of their actual return, but of the situation once they have returned. They consistently told the Special Rapporteur that they believed the practice of abduction for forced portering continues, and that as a result, they again may be tortured and perhaps would be killed. The fear of repeated rape during forced relocation or as a result of military reprisals for not finding men for portering, was also cited by most of the women interviewed as a reason for resisting repatriation to Myanmar.
138. The Government stated in its Press Release Number 87 of 14 December 1992, that Myanmar has a "tradition of labour". The press release refers particularly to accusations regarding the plight of the "Bangladeshi people in Myanmar's Rakhine state". Previous information received from the Government by the Special Rapporteur referred to this group of persons as Myanmar Muslims of Northern Arakan state (see Permanent Mission of the Union of Myanmar Press Release No. 83, page 2 regarding religious freedom and tolerance). Press Release No. 87 states that the achievements for all-around rehabilitation in the very short period of reconstruction, are mainly due to the volunteer contribution of labour by all nationalities of Myanmar. It states that "slave labour" has never been experienced in Myanmar and that the voluntary contribution of labour has always been a "noble deed". It continues that. "(O)ur religion (Buddhism) taught us that these deeds are the noblest of all and merit attained from them will surely lead to a longer life leading to the attainment of Nibbana, which is the liberation of both mind and body from all forms of attachment ... If some people think that contributing labour is the same as 'slave labour' that has been forced upon the people, then we must say that they have a lot to learn about our traditions, our culture and way of life here."
IV. LEGAL FRAMEWORK
139. This chapter sets out the sources of law applicable to the situation of human rights in Myanmar. In this regard, the Special Rapporteur took note of conventional obligations incumbent upon Myanmar and obligations derived from international customary law as well as the applicable domestic law particularly the Myanmar Penal Code and Code of Criminal Procedure.
A. International law
Charter of the United Nations
140. The obligation of States to respect the fundamental rights of all persons is embodied in the Charter of the United Nations.
141. Article 55 of the Charter states that the United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Article 56 of the Charter states that all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes. Article 2, paragraph 2 states that all Members ... shall fulfil in good faith the obligations assumed by them in accordance with the Charter.
142. Thus, as a Member State, Myanmar is granted the rights of membership under the Charter and has an obligation to cooperate with the United Nations and other Member States in taking progressive measures and joint and separate action in cooperation with the Organization to promote the observance of the human rights as elaborated in the Universal Declaration of Human Rights within the territory of the State of Myanmar.
143. Further specificity to the obligations under the Charter has been provided by, inter alia, the United Nations Declaration on the Elimination of all Forms of Racial Discrimination (proclaimed by General Assembly resolution 1904 (XVIII) of 20 November 1963); the Declaration on the Elimination of Discrimination against Women (proclaimed by Assembly resolution 2263 (XXII) of 7 November 1967), the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (proclaimed by Assembly resolution 36/55 of 25 November 1981); the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted by Assembly resolution 3452 (XXX) of 9 December 1975); the Declaration of the Rights of the Child (proclaimed by Assembly resolution 1386 (XIV) of November 1959); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict (proclaimed by Assembly resolution 3318 (XXIX) of 14 December 1974).
Conventional obligations
144. In addition to its obligations under the Charter of the United Nations, other obligations by Myanmar include those arising under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the Slavery Convention of 1926 (as amended by its Protocol of 7 December 1953), and the Convention on the Rights of the Child of 1989.
145. In regard to the Convention on the Rights of the Child, Myanmar deposited, at the time of ratification, a number of understandings and reservations pertaining to fundamental principles, inter alia:
(a) Article 37 on torture, cruel, inhuman or degrading treatment or punishment
"The Union of Myanmar accepts in principle the provisions of article 37 as they are in consonance with its laws, rules, regulations, procedures and practice as well as with its traditional, cultural and religious values. However, having regard to the exigencies of the situation obtaining in the country at present, the Union of Myanmar states as follows:
"Nothing contained in article 37 shall prevent, or be construed as preventing, the Government of the Union of Myanmar from assuming or exercising, in conformity with the laws for the time being in force in the country and the procedures established thereunder, such powers as are required by the exigencies of the situation for the preservation and strengthening of the rule of law, the maintenance of public order (ordre public), and, in particular, the protection of the supreme national interest, namely, the non-disintegration of the Union, the non-disintegration of national solidarity and the perpetuation of national sovereignty, which constitute the paramount national causes of the Union of Myanmar.
"Such powers shall include the powers of arrest, detention, imprisonment, exclusion, interrogation, inquiry and investigation."
(b) Article 15 on freedom of association and freedom of peaceful assembly
"The Union of Myanmar interprets the expression 'the law' in article 15, paragraph 2, to mean the laws, as well as the decrees and executive orders having the force of law, which are for the time being in force in the Union of Myanmar.
"The Union of Myanmar understands that such restrictions on freedom of association and freedom of peaceful assembly imposed in conformity with the said laws, decrees and executive orders as are required by the exigencies of the situation obtaining in the Union of Myanmar are permissible under article 15, paragraph 2.
"The Union of Myanmar interprets the expression 'national sovereignty' in the same paragraph as encompassing the supreme national interest, namely, the non-disintegration of the Union, the non-disintegration of national solidarity and the perpetuation of national sovereignty, which constitute the paramount national causes of the Union of Myanmar."
Universal Declaration of Human Rights
146. By resolution 217 A (III) of 10 December 1948, the General Assembly adopted and proclaimed the Universal Declaration of Human Rights "as a common standard of achievement for all peoples and all nations... by progressive measures, national and international, to secure their universal and effective recognition and observance ...". The Declaration sets out that "Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms". Article 2 of the Declaration further establishes that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind ...
147. The Universal Declaration of Human Rights is an expression of international concern for human rights and for international cooperation of all States with the United Nations bodies charged with monitoring the "effective recognition and observance" of human rights. In addition, however, the Universal Declaration has now gained customary acceptance in regard to the fundamental principles for the recognition and protection of human rights embodied in the Declaration.
148. Article 3 of the Universal Declaration provides that everyone has the right to life, liberty and security of person. Article 5 stipulates that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 15, paragraph 1, sets out that everyone has the right to a nationality and paragraph 2 states that no one shall be arbitrarily deprived of his nationality ...
149. Article 29, paragraph 2, of the Declaration states that in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
150. As to the rights and freedoms expressed in articles 3 and 5 of the Declaration, nevertheless, there can be no derogation. They pertain to the nucleus of rights universally considered jus cogens which may not be limited, curtailed or infringed upon for any reason of national emergency, national security, sovereignty, national unity, public order, health or morality. Article 15 of the Declaration, regarding the right to nationality and the prohibition against arbitrarily creating stateless persons, is gaining customary acceptance as a non-derogable principle.
151. Article 6 of the Declaration states that everyone has the right to recognition everywhere as a person before the law. Article 18 sets out that everyone has the right to freedom of thought, conscience and religion ... Under article 9, no one shall be subjected to arbitrary arrest, detention or exile.
152. Article 19 states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to see, receive and impart information and ideas through any media and regardless of frontiers. Article 20 provides that everyone has the right to freedom of peaceful assembly and association and that no one may be compelled to belong to an association.
153. With regard to the administration of justice, article 7 states that all are equal before the law and are entitled without discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of the Declaration and against any incitement to such discrimination.
154. Article 8 states that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
155. Under article 10, everyone is entitled in full equity to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
156. Article 11, paragraph 1 sets out the presumption of innocence and paragraph 2 the proscription on ex-post-facto imposition of the law or of its penalties.
157. These rights and protections are incorporated in the major international and regional human rights instruments. Although Myanmar has not become a party to these international human rights instruments, these principles are also customary in nature although they may be subject to the limitations as allowed by certain states of emergency (see para. 150 above). It is however, understood, as a general principle of law, that derogations by States from their obligations to ensure fundamental rights and protections to persons within their territory are limited to the time of the public emergency which threatens the life of the nation and subject to the limitations on the state of emergency as prescribed by national constitutions. The derogation must be in proportion to the exigencies of the situation and must not be inconsistent with other obligations undertaken in international law. The derogation may not be applied in a discriminatory manner solely on the basis of race, colour, sex, religion or social origin.
Article 3 common to the Geneva Conventions of 1949 and Customary Law
158. On 24 August 1992, the Union of Myanmar acceded to the four Geneva Conventions of 1949 for the protection of war victims. The treaty obligations undertaken by ratification are not retroactive in nature and may not be applied to actions that allegedly occurred prior to ratification. Treaty obligations binding on Myanmar since ratification, as regards conflicts of an internal nature, derive from common article 3 of the Geneva Conventions.
159. In addition to its treaty obligations, Myanmar was, before ratification of the Geneva Conventions, and continues to be, obliged to respect the relevant rules of international customary law, particularly those concerning the "elementary considerations of humanity" in times of armed conflict as well as in times of peace as expressed by the principles in common article 3.
160. As regards obligations in internal armed conflict, the International Conference on Human Rights held in Tehran in 1968 requested the United Nations Secretary-General, "after consultation with the International Committee of the Red Cross, to draw the attention of States Members of the United Nations to the existing rules of international law on the subject and to urge them to observe that in all armed conflicts, the inhabitants and belligerents are protected in accordance with 'the principles of the law of nations derived from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience'". This clause, known as the Martens Clause, was included in the preamble to The Hague Conventions of 1899 and 1907 concerning the Laws and Customs of War on Land and was then incorporated into the four Geneva Conventions of 1949 (art. 63 of the first, art. 62 of the second, art. 142 of the third and art. 158 of the fourth Geneva Convention).
161. Three customary principles of human rights protection are incorporated in the Martens Clause: (a) that the right of parties to choose the means and methods of warfare, i.e., the right of parties to a conflict to inflict injury on the enemy, is not unlimited; (b) that a distinction must be made between persons participating in military operations and those belonging to the civilian population so that the latter are spared to the extent possible; and (c) that it is prohibited to launch attacks against the civilian population as such.
162. The Martens Clause has acquired a customary character and thus applies independently of participation in the treaties containing it. It is of a non-derogable nature and applies whether or not a state of war has been declared or the state of war is recognized by a party to the conflict. In 1949, the International Court of Justice, in the Corfu Channel case, recognized the customary nature of these humanitarian requirements. It ruled that "elementary considerations of humanity ..." belong to the general and well-recognized principles which have to be observed in peacetime as well as in times of armed conflict (The Corfu Channel Case, Merits, I.C.J. Reports 1949, p. 22).
163. The International Court of Justice expanded upon this doctrine in the Barcelona Traction case of 1970, when it stated that "there are obligations of a State towards the international community as a whole" (case concerning the Barcelona Traction, Light and Power Company Limited, second phase, Judgment of 5 February 1970, I.C.J. Reports 1970, para. 33). It went on to state that these obligations may arise "... also from the principles and rules concerning the basic human rights of the human person" some of which "have entered into the body of general law".
164. As concerns the application of these principles in situations of peace, the International Court of Justice elaborated upon the Corfu doctrine in 1986 in the Nicaragua v. U.S.A. case when it held that "certain general and well-recognized principles, namely: elementary considerations of humanity, (are) even more exacting in peace than in war" (Nicaragua v. U.S.A., Merits, I.C.J. Reports 1986, p. 114, paras. 215 and 218, citing Corfu Channel, Merits, I.C.J. Reports 1949, p. 22).
165. The fundamental guarantees contained in common article 3 are thus applicable in all situations pertaining in the Union of Myanmar:
"(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
"To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
"(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
"(b) Taking of hostages;
"(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
"(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples".
International Labour Organisation Convention concerning Forced or Compulsory Labour
166. Myanmar is a party to the ILO Forced Labour Convention, 1930 (No. 29), of which article 10 (1) stipulates that "forced or compulsory labour exacted as a tax and forced or compulsory labour to which recourse is had for the execution of public works by chiefs who exercise administrative functions shall be progressively abolished".
167. Article 10 (2) stipulates that where forced or compulsory labour is exacted under the conditions stated in 10 (1), the authority concerned shall be satisfied:
(c) that the work or service will not lay too heavy a burden upon the present population, having regard to the labour available and its capacity to undertake the work;
(d) that the work or service will not entail the removal of the workers from their place of habitual residence;
(e) that the execution of the work or the rendering of the service will be directed in accordance with the exigencies of religion, social life and agriculture.
168. Article 12 sets out that for forced or compulsory labour of all kinds, the maximum period for which any person may be taken in any one period of 12 months shall not exceed 60 days, including the time spent in going to and from the place of work.
169. Article 16 (2) sets out that in no case shall the transfer of workers be permitted unless all measures relating to hygiene and accommodation which are necessary to adapt such workers to the conditions and to safeguard their health can be strictly applied.
170. Article 16 (3) When such transfer cannot be avoided, measures of gradual habituation to the new conditions of diet and of climate shall be adopted on competent medical advice.
171. Article 17 requires that before permitting recourse to forced or compulsory labour for works of construction or maintenance which entail the workers remaining at the workplaces for considerable periods, the competent authority shall satisfy itself that:
"(1) All necessary measures are taken to safeguard the health of the workers and to guarantee the necessary medical care and ..."
"(4) in case of illness or accident causing incapacity to work of a certain duration, the worker is repatriated at the expense of the administration;"
172. Article 18 provides that:
"1. Forced or compulsory labour for the transport of persons or goods such as the labour of porters or boatmen, shall be abolished within the shortest possible period. Meanwhile the competent authority shall promulgate regulations determining, inter alia, ...
"(b) that the workers so employed shall be medically certified to be physically fit, where medical examination is possible, and that where such medical examination is not practicable the person employing such workers shall be held responsible for ensuring that they are physically fit ...
"(c) the maximum load which these workers may carry ...
"the maximum distance from their homes to which they may be taken ...
"3. The competent authority shall further provide that the normal daily journey of such workers shall not exceed a distance corresponding to an average working day of eight hours, it being understood that account shall be taken not only of the weight to be carried and the distance to be covered but also for the nature of the road, the season and all other relevant factors ..."
173. Exceptions to the definition of forced or compulsory labour for the purposes of the Convention are provided by article 2:
"(a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character;
"(b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;
"(d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;"
174. In cases of labour exacted by the State, falling within this category, the obligations incumbent upon the State of Myanmar by virtue of the Charter of the United Nations, customary legal principles embodied in the Universal Declaration of Human Rights and common article 3 of the Geneva Conventions of 1949 regarding the physical integrity of all persons, remain in effect. They must be adhered to in the treatment of all persons providing labour exacted by the authorities of Myanmar regardless of the classification of such labour.
175. Governmental authorities informed the Special Rapporteur that labour on behalf of the State and particularly portering, was not forced, that it was a right of the Government to exact this labour and was in fact an obligation of all persons in Myanmar to provide labour. The legal authority cited was the 1908 Village Act enacted by the British during the colonial period and said to have been incorporated into the 1947 and 1974 Constitutions, in the sense that all laws or regulations existing prior to the drafting of the Constitutions and not specifically rescinded, are considered still in force.
176. However, the Special Rapporteur was informed by numerous high-level authorities and members of the judiciary as well as the Attorney General, that both the 1947 and 1974 Constitutions had been revoked in toto and that for this very reason, there was no legal authority upon which to effectuate the transfer of governmental power.
ILO Convention concerning Freedom of Association and Protection of the Right to Organise of 1948 (No. 87)
177. In 1955 Myanmar ratified the ILO Convention concerning Freedom of Association and Protection of the Right to Organise of 1948 (No. 87) to the effect that:
Article 2: Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.
Article 5: Workers and employers' organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations of workers and employers.
Article 8 (2): The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.
178. Prior to 1988, by Act No. 6 of 1964 and Regulation No. 5 of 1976, workers in Myanmar were restricted to a unitary workers' organization in contravention of articles 2, 5 and 6 of the ILO Convention (see Government of Myanmar Communication to the ILO Committee of Experts, Report No. 24 pp. 48-49). The Government representative reported to the Committee that since 1988 when the SLORC took power, these regulations have not been formally amended or repealed, but that the unitary trade union structure had been automatically removed and the Act and Regulation had become automatically defunct.
179. This, however, has not resulted in freedom of assembly and freedom to organize trade unions as stipulated by the Convention. No new legislation has been promulgated since 1988 to allow for free workers' assembly and/or organization. SLORC Order 2/88 prohibiting the assembly of five or more persons remains in effect and substantially limits any possibility for freedom of assembly or the right to organize and carry on trade or workers' unions. According to the Government, changes would not occur in this legislation until after the drafting of the new Constitution which, it was said, would contain the appropriate safeguards.
B. Myanmar law relevant to the question of human rights
180. One of the fundamental legal principles is that any law should be: accessible to those to whom it would be applied and to those encharged with upholding the law and those protecting the rights of persons accused of breaking the law; clear and unequivocal; and equitably applied, i.e., applied without discrimination.
181. Non-governmental sources indicated to the Special Rapporteur that even among professionals including those engaged in the law and among persons who are to participate in the National Convention, there is confusion as to what laws apply. One such law in question is the "incorporation" of the 1908 Village Act on portering into the 1947 Constitution, which states that all laws passed prior to the drafting of the Constitution remain extant if not specifically rescinded. The Constitution was cited to the Special Rapporteur by Government sources as the authority for the continuation of the portering law, despite the fact that the Constitution has been abolished. Non-governmental sources indicated confusion as to whether SLORC Order 1/90 regarding the "leading role" participation of elected officials in the drafting of the Constitution applied. At the time the Order was drafted, all potential elected participants were reportedly ordered to acquiesce in writing to this Order upon threat of detention. The Special Rapporteur was informed that ... persons were arrested for refusing to sign. Government sources told the Special Rapporteur that Order 1/90 remains in effect, yet the interpretation and application of the Order were stated by Government officials in contradictory and confusing terms.
Myanmar Penal Code and Code of Criminal Procedure
182. While judicial guarantees set out in the Constitution, according to the Government, do not apply, the Special Rapporteur was informed by Government authorities that those elaborated in the Code of Criminal Procedure applied in all cases heard in civilian courts even when the detention was carried out under a SLORC Order or emergency regulation.
183. Non-governmental sources indicated however, that in the cases of concern to the Special Rapporteur where the person had been detained for reasons having to do with other than common criminality the judicial safeguards, elaborated below, of the Code of Criminal Procedure are not applied.
184. The Myanmar Penal Code and Code of Criminal Procedure guarantee all persons detained for the commission of a crime for which punishment may be imprisonment for more than one year, transportation or the death sentence, to be charged for the crime committed, to be informed of the charges, to be granted a just and fair trial by a competent court and an appeal to a court in which a fair and impartial judgement may be had. Only cases for "minor" crimes for which punishment would not exceed one year, may, in certain circumstances, be tried in a summary manner.
185. However, the Special Rapporteur received copies of the relevant SLORC Orders and other emergency laws or provisions still in effect which were the basis for detention in most of the cases of violations reported to the Special Rapporteur.
186. SLORC Order 1/91 prohibits civil servants from participating in politics and their dependants or persons under their guardianship from participating directly or indirectly in activities aimed at opposing the government; 2/88, prohibits the assembly of five or more persons; and 3/90, relating to the right to assemble and campaign, forbids criticism of authorities or the defence forces, insults to SLORC and solidarity of the national races, which may be punishable by up to three years in prison and a fine. Order No. 6/90 of October 1990, bans all unlawful Sangha (Buddhist Monk) organizations except the nine sects of Sanghas and has made action possible against political parties for the "misuse" of religion for political purposes. In addition, the 1962 Printers' and Publishers' Law, as amended by the SLORC in July 1989, remains in effect. Under this law, "legal organizations that have registered and that wish to print and publish documents, books and printed material, will have to register with the Ministry of Home and Religious Affairs and apply for exemption in accordance with the 1962 Printers' and Publishers' Law". All material is prohibited that opposes the SLORC, the regional LORC at different levels, or the Government, insults, slanders or attempts to divide the defence forces, instigates actions that affect law and order and peace and tranquillity or contradicts the orders that have been issued whenever necessary. The 1975 State Protection Act, as amended in August 1991 by the SLORC, remains in effect. It allows the State to detain without trial for up to five years any person "who will do, is doing or has done, an act that endangers the peace of most citizens or the security of the State, or the sovereignty of the State". The 1950 Emergency Provisions Act remains and allows for the imprisonment for up to seven years of any person who either "infringes upon the integrity, health, conduct and respect of State military organizations and government employees", "spreads false news about the Government" or "disrupts the morality or the behaviour of a group of people".
187. In the majority of the cases reported to the Special Rapporteur, the person was tried by a military tribunal in which the safeguards stipulated by the Penal Code and Code of Criminal Procedure did not apply. By SLORC Order No. 12/92, Martial Law Orders 1/89 of 17 July 1989 and 2/89 of 18 July 1989, investing certain military commanders within their respective military regions with executive and judicial powers, were rescinded. The Government informed the Special Rapporteur that none of the persons tried and sentenced before the military tribunals were abolished would be retried by civilian courts. The Government stated that the principle of res judicata applied despite the fact that the trials were summary military trials, but that any person detained and tried subsequent to the rescission of the military tribunals would be tried by a civilian court with all the judicial guarantees of the Code of Criminal Procedure.
Burma Citizenship Law
188. Before 1982, the laws pertaining to citizenship in Myanmar were prescribed by Chapter II, articles 10 of the 1947 Constitution (Union Citizenship Act of 1948). Accordingly, Parliament reserved the right to make such laws as it thought fit in respect of citizenship and alienage and any such law could provide for the admission of new classes of citizens or for the termination of the citizenship of any existing classes. The basic law held that "(T)here shall be but one citizenship throughout the Union ..." Citizenship was deemed to exist for:
(a) Every person, both of whose parents belong or belonged to any of the indigenous races of Burma;
(b) every person born in any of the territories included within the Union, at least one of whose grandparents belong or belonged to any of the indigenous races of Burma;
(c) every person born in the territories included within the Union, of parents both of whom are, or if they had been alive at the commencement of the Constitution would have been, citizens of the Union;
(d) every person who was born in any of the territories which at the time of his birth was included within His Britannic Majesty's dominions and who has resided in any of the territories included within the Union for a period of not less than eight years in the 10 years immediately preceding the date of the commencement of the Constitution or immediately preceding 1 January 1942 and who intends to reside permanently therein and who signifies his election of citizenship of the Union in the manner and with the time prescribed by law, shall be a citizen of the Union.
189. The 1982 Burma Citizenship Law (Pyithu Hluttaw Law No. 1982-7) supersedes the 1948 Constitution Nationality Laws. The 1982 law establishes that there are three classes of citizens: citizens, associate citizens, naturalized citizens.
190. One high-level Government official told the Special Rapporteur that the three groups were: citizens, associate citizens and foreigners. Another high-level official told the Special Rapporteur that under the 1948 law, a person born of one Burmese parent and one "foreigner" was still a citizen but that under the 1982 law, this person would become an "associate citizen". Those who had applied and qualified for citizenship before 1982, would now become naturalized citizens.
191. Under the 1984 law, citizens by birth are those who are nationals such as Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories included within the State as their permanent home from a period anterior to 1185 B.E., 1823 A.D. The Council of State may decide whether or not an ethnic group is national. Every national and every other person born of parents, both of whom are nationals are citizens by birth.
192. The following persons are also citizens:
Persons born of parents both of whom are citizens;
Persons born of parents one of whom is a citizen and the other an associate citizen;
Persons born of parents one of whom is a citizen and the other
a naturalized citizen;
Persons born of parents of the above categories, one of these parents having a parent who was either an associate or naturalized citizen.
193. According to the Citizenship Law, applicants for citizenship under the Union Citizenship Act of 1948 conforming to the stipulations and qualifications may be determined as associate citizens by the Central Body. No other standard criteria for this determination is set out.
194. Persons may become naturalized citizens if they are persons who have entered and resided in the State anterior to 4 January 1948, and their offspring born within the State may, if they have not yet applied under the Union Citizenship Act, apply for naturalized citizenship to the Central Body furnishing conclusive evidence. The following categories of persons may also apply for naturalization:
(a) Persons born of parents one of whom is a citizen and the other a foreigner;
(b) Persons born of parents one of whom is an associate citizen and the other a naturalized citizen;
(c) Persons born of parents one of whom is an associate citizen and the other a foreigner;
(d) Persons born of parents both of whom are naturalized citizens;
(e) Persons born of parents one of whom is a naturalized citizen and the other a foreigner.
195. The determination is made by the Central Body. Among the qualifications necessary to become a naturalized citizen is the ability "to speak one of the national languages well". The "national races" and thus the "national languages" are determined by the Central Body. There are registration requirements for the application process to each category of citizenship which require travel out of the villages and perhaps to another State.
196. According to articles 30 (c) and 53 (c), associate and naturalized citizens shall be entitled to enjoy the rights under the laws of the State, with the exception of the rights stipulated from time to time by the Council of State.
197. One Government source informed the Special Rapporteur that associate citizens had all the rights of a citizen by birth except possibly the right to hold land. Foreigners have less business rights and are not allowed to own land. It was not made clear to the Special Rapporteur if this category referred to "naturalized citizens". Other Government sources also told the Special Rapporteur that associate citizens could not own land and that some other differences may apply.
198. No Government official informed the Special Rapporteur of article 8 (b) of the 1984 Burma Act, under which, the Council of State may, in the interest of the State revoke the citizenship, associate citizenship or naturalized citizenship of any person except a citizen by birth.
V. THE NATIONAL CONVENTION FOR DRAFTING A NEW CONSTITUTION AND THE TRANSFER OF POWER TO A CIVILIAN
199. Under article 21 (1) of the Universal Declaration of Human Rights, everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
200. Article 21 (3) states that the will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
201. In 1988 the SLORC announced that elections would be held. Two hundred and thirty-three political parties were formed by February 1989. Fifty-three contested the election. The rest either were declared illegal, had boycotted the elections (and were then declared illegal for having boycotted) or could not organize sufficiently to put up candidates, in part, because of the legal restrictions on lawful assembly and freedom to publish and distribute campaign material.
202. On 27 May 1990, general multi-party elections were held. Governmental as well as non-governmental sources told the Special Rapporteur that these elections were held in a free and fair manner. Ninety-three parties contested the elections, of which 27 won seats. Results published by the Government showed that the National League for Democracy (NLD), then headed by the presently detained leaders U Tin Oo (Chairman) and Daw Aung San Suu Kyi (General Secretary), won 392 of the 485 seats contested (80 per cent of the vote). Of those, 11 died (1 while in custody) and over 70 were jailed and/or disqualified. There are 281 remaining representatives with 84 of these potential representatives still under investigation as to their campaign expense accounts or other potential campaign irregularities. At present, the NLD is allowed to send 97 MPs and 5 members of the party to the National Convention.
203. The Shan National League for Democracy (SNLD) had 23 elected representatives. Of these, three died (of natural causes) and two were disqualified by the Election Committee. Eight are still being investigated by the Election Commission.
204. The Rakhine Democracy League won 11 seats; the SLORC-backed National Union Party (NUP) won 10 seats; the Mon National Democratic Front won 5 seats; the National Democratic Party for Human Rights won 4 seats. Four other parties won 3 seats each; 5 political parties won 2 seats each; 12 political parties won 1 seat each and 6 independents won seats, totally 485 seats altogether.
205. Government Authorities informed the Special Rapporteur that the intent of the elections had been misunderstood. Following the mass demonstrations for democracy in 1988, the then Chairman of the SLORC, General Saw Maung, announced the military coup and stated that "the military must first try to solve difficulties and hardships faced by the people and then carry out a general election." It was stated that the purpose of the elections had not been to turn over the Government to the elected party, but to select the persons who would draft the new constitution, after which, there would be a change in government. This turning over of the government would occur only after the new constitution provided a legal basis for doing so.
206. On 27 July 1990 Declaration No. 1/90 stated that a broad-based national conference would be convened so that all factors that should be taken into consideration in drawing up the constitution could be discussed and made available to the drafters of the constitution. The Convention was announced for January 1993.
207. On 24 April 1992, by Declaration No. 11/92, the SLORC announced that there would be meetings with the leading members of the elected parliament from existing legal political parties and the independent elected members of Parliament within two months, for the purpose of convening the National Convention in accordance with Declaration No. 1/90.
208. On 10 July 1992, a coordination meeting for the convening of the National Convention was held. It was chaired by a 15-member SLORC Steering Committee headed by Major General Myo Nyunt, Commander of the Yangon Military Command. Twenty-seven elected members of Parliament from the seven remaining legally-standing parties attended. The rules of procedure were determined by the Steering Committee. After three days, Major General Myo Nyunt announced that a general consensus had been reached that delegates from eight different categories would be invited to participate in the National Convention:
Five delegates from each of the legally-standing political parties;
Delegates who are the elected representatives;
About 200 persons representatives of the different "nationalities" in proportions determined by percentage of population;
Peasants - about 100;
Workers - about 100;
Intelligentsia - about 100;
Public servants - about 100;
Special invitees of the Commission - about 50.
These approximately 650 representatives, totalling about 70 per cent of the overall participants, were to be selected by the SLORC, primarily at the township level by the local SLORC representatives.
209. In total, 702 delegates had been named to the National Convention. The representatives of the seven parties which won seats in the elections and which are the only ones of the original twenty-seven which still exist are the NLD, SNLD, NUP, Union Pao National Organization, Lahu National Democratic Party, Mro or Khami National Solidarity Organization and the Shan State Kokang Democratic Party.
210. The Government informed the Special Rapporteur that there would be free discussion at the National Convention within the parameters of the six points determined by the SLORC for discussion:
Non-disintegration of the Union;
Non-disintegration of national solidarity;
Consolidation and perpetuation of sovereignty;
Emergence of a genuine multi-party democratic system;
Development of eternal principles of justice, liberty and equality in the State;
Participation of the military (Tatmadaw) in the leading role of politics in the State of the future.
211. As explained to the Special Rapporteur, the SLORC is responsible for determining and administering the rules of procedure by which the discussions will take place. These rules of procedure have reportedly not yet been specified to the delegates. The SLORC is also responsible for the taking of minutes during the Convention and for preparing the final report to be submitted to the SLORC after the Convention. The SLORC will then convene the Constitutional Drafting Committee.
212. By Declaration 1/90, the SLORC stated that the representatives elected in the multi-party democracy general elections in May 1990, would be responsible for drawing up the new Constitution. According to statements by Government authorities to the Special Rapporteur, Declaration 1/90 remains extant.
213. In regard to Declaration 1/90, during meetings with various Government officials, the Special Rapporteur was variously informed that the elected representatives would be allowed to take a "leading role", that elected representatives would be allowed to participate in the drafting process in which all opinions expressed in the Convention would be reflected; that they would be allowed a "leading role" but that Constitutional experts as determined and selected by the SLORC would also participate; that participation in the Drafting Committee would be determined on the basis of maintaining the integrity of the State and would be a step in the transition to democracy, but that this determination was a question of internal affairs not to be interfered with by the international community.
214. Non-governmental groups and individuals informed the Special Rapporteur that all elected representatives had been required to sign their agreement to Order No. 1/90. The Special Rapporteur was informed that, several elected representatives and party workers were arrested for refusing to sign.
215. Government officials told the Special Rapporteur that it has not been determined if after the constitution is drafted there will be a referendum to endorse it. No answer was received as to whether a general election will be held to elect the People's Assembly under the new constitution, nor was an answer obtained as to whether the Military Orders and laws instituted by the SLORC would be abolished under the new Constitution. Government sources indicated that these decisions would be taken by the Constitutional Drafting Committee members.
216. The Special Rapporteur was further informed that point number 6 of objectives on the agenda of the National Convention, i.e., the "leading role" of the military (Tatmadaw) in the future government was not an objective agreed to by the elected representatives. The Special Rapporteur was told that it is not clear what role or influence the Tatmadaw is to carry out in the Drafting Committee and how its role in the future, democratic government as defined in the constitution to be drafted was another point of great concern to the elected representatives.
217. The National Convention was announced for January 1993. On 9 January 1993, the National Convention was convened with speeches by the Chairman of the Steering Committee and SLORC member, General Myo Thant. There was no other discussion. Several different national constitutions translated into Burmese were said to have been received for consideration by the delegates. Reports received by the Special Rapporteur indicate that a number of elected representatives decided to attempt discussion as to point number 6 of the objectives, i.e., the "leading role" of the Tatmadaw in the new government. It is reported that the following day, the SLORC announced that the National Convention was to be postponed until February. The delegates were told to return home and not to remain in Yangon. Information received by the Special Rapporteur does not clarify whether these same elected representatives will be allowed to participate when the Convention is reconvened.
VI. CONCLUSIONS
218. The visit of the Special Rapporteur to the Union of Myanmar at the invitation of the Government marked the first time international examination of the situation of human rights in Myanmar has been taken up under a public procedure by the Commission on Human Rights by its resolution 1992/58.
219. The Government facilitated the visit, including travel within the Union of Myanmar to Rhakine state and to all three new townships near Yangon, to the projected site of the new university in Dagon New Township, to Insein Prison, to a youth sports facility, some new highway construction projects and extended many courtesies to the Special Rapporteur.
220. "Full and unreserved cooperation" as required under Commission on Human Rights resolution 1992/58, however, was not extended to the Special Rapporteur. Many persons, including non-governmental organizations, private groups and individuals wishing to make contact with the Special Rapporteur in order to provide information relevant to the performance of his mandate, as well as persons whom the Special Rapporteur had requested to see, were prevented from doing so through intimidation and threats on the part of the military intelligence. The Special Rapporteur was not allowed to see any of the political leaders, particularly the Nobel Peace Prize laureate, Saw Aung San Suu Kyi, and elected representatives deprived of their liberty.
221. Myanmar is a Member State of the United Nations and is thus bound by all the obligations of the Charter of the United Nations without selectivity. Myanmar became a party to the Geneva Conventions of 1949 in August 1992 but has not yet become party to the two Additional Protocols thereto of 1977. Myanmar is not a party to the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.
222. Myanmar is a party to the ILO Forced Labour Convention, 1930 (No. 29) and in 1955 it ratified the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In regard to Myanmar's compliance with this Convention, at the 79th session of the International Labour Conference held in 1992, the Myanmar Government representative stated that "(T)he new constitution will incorporate the rights of all workers to form their own independent trade unions in conformity with the democratic system." However, it was recalled in that session that the case of Myanmar had been considered the previous year (1991) and that since then, no progress had been made despite the assurances given by the Government representative and that furthermore, "In the meantime, the available information on this subject referred to the extreme degree of atrocities and the unprecedented escalation of violations of human rights committed by the military regime".
223. The Government representative recalled that his country was experiencing a period of transition towards democracy, and asked that his Government be given more time to obtain results. It was then clarified that the availability of the choice of trade union pluralism was an obligation derived from the Convention, that had nothing to do with the political situation, and it was suggested that the Government be asked to take prompt action to correct the situation at the legislative level (see Provisional Records of the International Labour Organisation Conference, 79th session, 1992, pp. 60-61).
224. Myanmar is a party to the Convention on the Rights of the Child of 1989. At the time of ratification, Myanmar deposited a number of understandings and reservations pertaining to article 37 on the prohibition of torture, cruel, inhuman or degrading treatment and article 15 on freedom of association and peaceful assembly. Article 37 pertains to the non-derogable principle of international customary law which prohibits torture, cruel, inhuman or degrading treatment in all circumstances regardless of the political system, times of political, social or economic transition or threats to the non-disintegration and national sovereignty of a State. Furthermore, when taking into consideration that these reservations and understandings are in the context of the treatment of children, they must be seen as absolutely contrary to the object and purpose of the Convention.
225. In regard to the understandings and reservations deposited on freedom of association and peaceful assembly, it should be taken into account that the "laws" considered applicable in the restriction of these rights are martial laws and other emergency orders imposed by the military Government in order to protect the "supreme national interest, namely the non-disintegration of the Union, the non-disintegration of national solidarity and the perpetuity of national sovereignty". These concepts have been repeatedly invoked by the Government to restrict free participation in the political process and in the transition to a democratic, civilian government. In the context of this Convention, these restrictions are also to be imposed on children. For these reasons, the understandings and reservations in regard to article 15 should also be considered as contrary to the object and purpose of the Convention.
226. Many domestic laws contravene the basic underlying principles of jurisprudence. As a general principle, the laws of a country should be clear, unequivocal and consistent, accessible to the public and equitably applied. Various SLORC Orders including Order No. 1/90 pertaining to the participation of the elected representatives in the Constitutional Drafting Committee, and most particularly, the 1982 Citizenship Law, have been unaccessible to those to whom they would be applied, they have been vague, randomly interpreted and arbitrarily applied. Government authorities themselves, in explaining the law to the Special Rapporteur proffered contradictory interpretations. Lawyers and elected representatives told the Special Rapporteur that they did not have any idea which laws and orders were applied, how they were applied or to whom they applied. The new Citizenship Law provides a striking example of discriminatory application. The Law, which was not actually applied until 1988 (the year the new flow of Rakhine refugees began to Bangladesh) jeopardizes in particular the status of Myanmar Muslims of Rakhine state. Historically, the Rakhine Muslims have been unable to obtain nationality or residency status identification cards and thus cannot now prove any kind of residency or previous nationality status. Secondly, under this new law, persons must prove that they have Burmese nationality back to all eight great-grandparents. The Special Rapporteur was informed that these provisions of the law were directed primarily at the Rakhine Muslim population to forbid them from ever gaining nationality or associate nationality (a category of second-class citizenship). The Special Rapporteur has concluded that the effect of this law is to create conditions which promote statelessness. Categories of persons at high risk of becoming victims of human rights violations may create flows of refugees which overburden other countries and create threats to peace and tranquillity within the region.
227. In regard to restrictions on personal freedoms inter alia, freedom of expression, including the freedom to receive and impart information and the right of peaceful assembly, according to testimony received by the Special Rapporteur, violations occurred primarily as a result of attempts of citizens to participate freely in the political process and the transition to the democratically elected civilian government. Peaceful assembly of five or more persons, publication and distribution of political or social ideas, literature or ideas critical of the Government or the military, have been systematically repressed.
228. The Special Rapporteur received numerous reports of violations of physical integrity rights. Detentions without minimum guarantees for persons under custody, torture, cruel, inhuman or degrading treatment, disappearances and arbitrary execution have been carried out by the Myanmar authorities. The amount of written and oral testimony received by the Special Rapporteur was copious. Apart from a small amount of written information which was discounted because the Special Rapporteur was unable to independently verify the allegations, the testimony compiled was consistent. It formed the basis for the Special Rapporteur's assessment that these physical integrity violations in Myanmar have arisen primarily in three major contexts: attempts by citizens to participate freely in the political process and the transition to the democratically-elected civilian government, forced portering and forced labour and the imposition of oppressive measures directed at ethnic minority groups.
229. According to information received, some of these violations have been occurring for many years; nevertheless, the evidence compiled by the Special Rapporteur indicates that the violations have not only continued but have increased over the period of the four years beginning on 18 September 1988 when the SLORC took over as the military Government.
230. In regard to summary executions, although the death penalty is permitted under Myanmar law, no death sentence has been carried out since 1988. On 6 September 1992, military tribunals were revoked and on 1 January 1993, all death sentences passed by civil or military courts or tribunals between 18 September 1988 and 31 December 1992 were commuted to transportation for life (life imprisonment).
231. According to information received by the Special Rapporteur, Myanmar authorities were responsible for carrying out arbitrary executions, death under custody and death due to torture within the context of armed conflict. This category of violations would include particularly torture (including rape) and arbitrary executions of persons during forced relocation of entire villages by the army. Other such violations included acts of reprisal by the military and torture or execution of persons suspected of being insurgents or giving aid to insurgents. Torture and death of porters by the military have also been prevalent. The ethnic minority groups, including the Shan, Karen, Karenni, Mon and the Rakhine Muslims were victims of these violations. Deaths of political leaders or students due to torture or cruel and inhuman conditions while under custody, however, occurred in circumstances unrelated to any armed conflict.
232. Hundreds of disappearances occurred when persons were taken from villages for forced portering, particularly from the Shan, Mon and Rakhine states. Dozens of Rakhine Muslim women told the Special Rapporteur that their husbands had been taken away by the military for forced portering and had never returned. In addition, many detentions of elected representatives, political leaders, students or other persons detained after the 1988 and 1990 demonstrations, began as disappearances. The torture reported of these persons occurred primarily during the period before the acknowledgement of the detentions by the Government. Acknowledgement was in most cases made after formal sentencing, which in some cases did not take place until days before the person was released. After the 1988 and 1990 demonstrations, thousands of persons were killed and many who never returned home were presumed by their families to have been killed by the military. The authorities have denied all such allegations and have not taken any steps to clarify the fate of these persons. It has been alleged that the bodies of hundreds of these persons were buried in mass graves in a military site near the airport and in Hlaing Thaya New Township where access is only possible by ferry.
233. Regarding the treatment of porters, torture, cruel, inhuman or degrading treatment, disappearance or arbitrary execution occurred while porters were forcibly under the power of the Myanmar army. Some of the violations, such as placing porters weighted down with loads of 45 kilogrammes or more on the front lines, occurred in conditions of armed conflict. But other allegations of violations of these physical integrity rights of porters occurred while under the power of the authorities of Myanmar outside of armed conflict situations. These reports were carefully verified by the Special Rapporteur in accordance with standard United Nations procedures.
234. Dozens of escaped porters told the Special Rapporteur that they had been tortured and had witnessed other porters being tortured or killed during forced labour and portering either for development projects or for the military. They told the Special Rapporteur that persons from villages were abducted for portering. Village headmen were forced to round up persons for the military. Persons were transported in cruel, inhuman or degrading conditions, beaten if weakened by exhaustion, disease and exposure and then often left to die.
235. In the case of the Myanmar Muslims of Rakhine state, testimony and information evaluated strongly indicate, that they have been singled out as objects of these physical integrity violations. As a result, approximately 250,000 Rakhine Muslims have been forced to flee across the border into Bangladesh as refugees. The Special Rapporteur was told by the Government that not one Myanmar Muslim from Rakhine state had fled Myanmar because of ill-treatment. One official suggested that they had been lured across the border by subversive elements and by the promise of international aid. Another Government authority stated that none of the persons in the Bangladeshi refugee camps had come from Myanmar and that they had voluntarily gone there from Dhaka, Bangladesh.
236. Between 7 and 14 December 1992, when the Special Rapporteur visited Myanmar, approximately 1,700 of these persons had returned (without international supervision) to Myanmar. As of this writing, over 17,000 have now been returned. International humanitarian organizations and members of the international community have expressed serious concern that the repatriations have not been carried out under conditions that are believed to have been voluntary, dignified or providing safety. Monitoring of the conditions of safety of these returnees is not being permitted by the Myanmar Government. This has given rise to fears of a resurgence of cyclical repression of these Myanmar Muslims as occurred at the time of independence in 1948, in 1978 when a census was carried out leading to the flight of 200,000 Rakhine to Bangladesh, and again in 1991 which gave rise to the present mass exodus to Bangladesh.
237. In regard to detention of political leaders and other persons attempting to participate freely in the political process, it was impossible for the Special Rapporteur to determine how many persons in this category remain in detention, but it is believed that there remain scores of persons still in detention without any of the judicial safeguards considered as a minimum standard by the international community. Among these is the Nobel Peace Prize recipient, Daw Aung San Suu Kyi, who was detained without trial in 1989 under the 1975 State Protection Act. The Act was then amended in August of 1991 when her term of detention had almost expired, in order to allow for prolongation of her detention.
238. The law was applied in an ex-post facto manner in contradiction to international legal standards. Recent reports stated that she would be released after the National Convention and after the Constitution was drafted and the new government had taken charge. Although over 1,700 persons were released under SLORC Order No. 11/92 in April 1992, the Special Rapporteur has received confirmed reports that new detentions of political leaders have taken place in 1993.
239. The National Convention preparatory to the drafting of the constitution was convened on 9 January 1993. After one and a half days the Convention was postponed reportedly because some elected representatives were preparing to bring up the question of the "leading role of the Tatmadaw (army) in the new government". Several persons were reportedly arrested for having distributed written material.
240. The National Convention was reconvened on 1 February. Discussion on the constitution is taking place under a panel of 45 chairmen elected by the 8 groups represented as delegates. Of these chairmen, only one is a member of the National League for Democracy which won 80 per cent of the vote in the national elections. It has been announced that the universities will reopen on 19 February 1993.
241. On the basis of the visit to Myanmar and the well-documented information received, the Special Rapporteur has assessed that serious repression and an atmosphere of pervasive fear exist in Myanmar. He found that there is a lack of accountability on the part of the Government and an absence of legal and administrative protection and/or recourse available for victims and families of victims of human rights abuses. In the light of these findings, the Special Rapporteur recommends that the Commission on Human Rights continues its close monitoring of the situation of human rights in Myanmar and extend the mandate of the Special Rapporteur to report to the Commission at its fiftieth session.
VII. RECOMMENDATIONS
242. In the light of the above conclusions, the Special Rapporteur submits the following recommendations for the consideration of the Government of Myanmar:
(a) Although the Special Rapporteur believes the Government should give effect to the political will of the people by transferring power to the freely and fairly elected civilian government; nevertheless, he is of the opinion that implementation of the following non-political, human rights recommendations should not be delayed by, nor subordinated to, considerations of political transition.
(b) The Government of Myanmar should fulfil in good faith the obligations it has assumed under Articles 55 and 56 of the Charter of the United Nations "to take joint and separate action in cooperation with the Organization for the achievement of ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion." Other rights under the Charter should not be invoked as limitations on these obligations assumed erga omnes.
(c) The Government of Myanmar should consider accession to: the International Covenants on Human Rights; the Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment and to the two protocols additional to the Geneva Convention of 1949. In addition, it should immediately withdraw its reservations and understandings to articles 15 on freedom of association and 37 regarding the prohibition of torture of minors, of the Convention on the Rights of the Child.
(d) The system of law, both constitutionally and legislatively, in Myanmar should be regularized to be accessible to those to whom it would be applied, to be clear and unequivocal and to be equitably applied. The ongoing state of emergency should be lifted and martial law in the form of SLORC Orders and other emergency legislation should cease to be the basis of law.
(e) Myanmar law should be brought into line with accepted international standards regarding protection of the physical integrity rights. Among these international standards are the right to life, protection against disappearance, prohibition of torture, cruel, inhuman or degrading treatment, providing humane conditions for all persons under detention and granting the minimum standard of judicial guarantees, as accepted by the international community, in order to further ensure the physical integrity of all persons under all forms of detention. Freedom of expression should be allowed including a free press and media. The Special Rapporteur recommends that constitutional and international legal experts from different regions be invited by the Government of Myanmar to share their expertise with Myanmar in the drafting of the new constitution and other legislation.
(f) The Government should take measures to comply with its obligations under ILO Convention No. 29 by eradicating the practice of forced portering and other forced labour which has provoked systematic torture, cruel inhuman and degrading treatment or punishment, disappearances and mass arbitrary executions. It should also take immediate steps to amend and implement legislation in accordance with ILO Convention No. 87. In compliance with this Convention, it should allow for the existence and practice of free trade unions and free association for the purpose of participation, in the civil and political as well as economic, social and cultural life of the country.
(g) The 1982 Citizenship Law should be revised or amended to abolish its over-burdensome requirements for citizenship. The law should not apply its categories of second-class citizens in a manner which has discriminatory effects on racial or ethnic minorities particularly the Rakhine Muslims. It should be brought in line with the principles embodied in the Convention on the Reduction of Statelessness of 30 August 1961. The Union of Myanmar should consider ratification of both this Convention and the Convention relating to the Status of Refugees of 28 July 1951 and its Additional Protocol of 31 January 1967.
(h) In order to promote repatriation of the Myanmar Muslims and other minorities, the Government should create the necessary conditions of respect for their human rights. The Government should assure, in law and practice, their safe return and resettlement in villages of origin. To this end, it should also promote their complete civil, political, social, economic and cultural participation in Myanmar without restriction or discrimination due to status.
(i) The Special Rapporteur recommends, in the light of the seriousness of the refugee and repatriation problem, and the grave threat this situation poses to the physical integrity of Myanmar ethnic and racial minorities as well as to the peace and security in the region, that an international human rights monitoring team, in conjunction with the mandate of the Special Rapporteur, be allowed access to the border areas. In addition, this team should be allowed access to the sites of repatriation within Myanmar. This team would operate with an integrated human rights/humanitarian approach with consideration for the refugee and repatriation issues. It is suggested that it be composed of independent experts and selected representatives of the specialized agencies with expertise in the relevant areas.
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Economic and Social Council
Distr.
GENERAL
E/CN.4/1994/57
16 February 1994
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fiftieth session
Agenda item 12
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN
ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE TO COLONIAL AND OTHER
DEPENDENT COUNTRIES AND TERRITORIES
Report on the situation of human rights in Myanmar, prepared
by Mr. Yozo Yokota, Special Rapporteur, in accordance with
Commission resolution 1993/73
CONTENTS
Paragraphs
I. INTRODUCTION 1-12
A. Mandate 1-3
B. Historical background 4-12
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR 13-41
A. Introduction 13
B. The visit to Myanmar 14-40
C. The visit to camps in Thailand 41
III. ALLEGATIONS 42-63
A. Arbitrary arrest and detention 42-47
B. Torture and cruel, inhuman and degrading treatment 48-50
C. Disappearances 51-52
D. Extrajudicial, summary or arbitrary executions 53-55
E. Treatment of the Muslim population in Rakhine State 56-57
F. Labour rights 58
G. Rights of the child 59
H. The National Convention 60-62
I. The movement towards reconciliation with insurgents 63
IV. CONCLUSIONS AND RECOMMENDATIONS 64-74
A. Conclusions 64-73
B. Recommendations 74
I. INTRODUCTION
A. Mandate
1. The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar has been described in each of the Special Rapporteur's previous reports to the General Assembly (A/47/651, paras. 1-5 and A/48/578, paras. 1-6) and to the Commission on Human Rights (E/CN.4/1993/37, paras. 1-6). It may be noted here that the mandate, as initially articulated in Commission resolution 1992/58 of 3 March 1992 (approved by Economic and Social Council decision 1992/235 of 20 July 1992) and subsequently extended by Commission resolution 1993/73 of 10 March 1993 (approved by Economic and Social Council decision 1993/278 of 28 July 1993), required the Special Rapporteur "to establish or to continue direct contacts with the Government and the people of Myanmar, including political leaders deprived of their liberty, their families and their lawyers" and "to report to the General Assembly at its forty-eighth session and to the Commission at its fiftieth session" (resolution 1993/73, para. 16). The object of the direct contacts and reporting by the Special Rapporteur is "with a view to examining the situation of human rights in Myanmar and following any progress made towards the transfer of power to a civilian government and the drafting of a new constitution, the lifting of restrictions on personal freedoms and the restoration of human rights in Myanmar" (Commission resolution 1992/58, para. 3). In order to facilitate the fulfilment of the mandate of the Special Rapporteur, the Government of Myanmar was urged to extend "its full and unreserved cooperation to the Commission and the Special Rapporteur and, to this end, to ensure that the Special Rapporteur has effectively free access to any person in Myanmar whom he deems appropriate in the performance of his mandate" (Commission resolution 1993/73, para. 17).
2. The substantive issues addressed by the Commission on Human Rights in resolution 1993/73 include the following concerns: that the electoral process initiated in Myanmar by the general elections of 27 May 1990 has yet to reach its conclusion and that, therefore, the will of the people is not the basis of the authority of government in Myanmar as required by the Universal Declaration of Human Rights; "that many political leaders, in particular elected representatives, remain deprived of their liberty and that Daw Aung San Suu Kyi, Nobel Peace Prize laureate, is still under house arrest"; that serious violations of a variety of fundamental civil rights continue; that refugee flows are creating problems in neighbouring countries; and that there is an "absence of guarantees for the physical integrity and well-being of returnees".
3. The preliminary report of the Special Rapporteur was submitted to the Secretary-General of the United Nations for dissemination to all States Members of the United Nations at the forty-eighth session of the General Assembly in November 1993 (A/48/578, annex). This comprehensive report is submitted to the Commission on Human Rights at its fiftieth session for consideration by the Commission.
B. Historical background
4. In 1948, the Union of Myanmar (then called Burma) gained independence from British colonial rule. From 1948 until 1962, the country was governed by a parliamentary democracy based on the Constitution of 2 September 1947. It provided for a federal system of government with separate executive, legislative and judicial branches. The States under the Union were considered autonomous. According to article 201 of the Constitution of 1947, ethnic minorities had, in theory, the right to secede from the Union, but, under article 202, this right was not to be exercised until 10 years from the date of entry into force of the Constitution. In March 1948, an armed insurgency against the then Government of Burma was begun by the Communist Party of Burma. From 1948 through 1961, various minority ethnic groups joined the armed insurgency.
5. In March 1962, General Ne Win took power in a coup d'état. He installed a one-party (Burma Socialist Programme Party) rule under military control. He embarked upon a programme known as the "Burmese Way to Socialism". In 1974, a new Constitution was drafted under which one-party rule continued.
6. Towards 1988, nationwide demonstrations began in reaction to the suppression of all civil and political rights since the overthrow of the constitutional government in 1962 and to the economic failure as a consequence of the policy of the Burmese Way to Socialism.
7. From March to June 1988, students, workers and monks demonstrated for more freedom and democracy, but the army used harsh measures to crush the demonstrations. Hundreds of civilians were arrested and many suffered severe injuries or died from ill-treatment in detention. Many persons were summarily or arbitrarily executed. On 21 June 1988, the Government imposed a ban on all public gatherings.
8. On 23 July 1988, General Ne Win resigned as party leader and promised economic reform and the holding of a referendum to end one-party rule and institute a multi-party system. However, demonstrations continued and the army and riot police attacked the demonstrators. It was reported that approximately 3,000 persons were killed in August 1988 alone. On 18 September 1988, the military took power and the State Law and Order Restoration Council (SLORC) was set up under the chairmanship of the Chief of Staff, Senior General Saw Maung. The National Assembly (Pyithu Hluttaw), the Council of State and other governmental bodies were dissolved. Free elections were promised by the SLORC but Daw Aung San Suu Kyi, daughter of General U Aung San (the national hero of independence who was assassinated in 1947) and General Secretary of the National League for Democracy (NLD), was banned from campaigning on the grounds that she kept unlawful association with insurgent organizations. On 20 July 1989, Daw Aung San Suu Kyi was detained by government forces. She has been under house arrest without trial since then and, in 1991, she was awarded the Nobel Prize for Peace. Many others, including most of the important opposition political leaders, were also detained.
9. On 27 May 1990, general elections were held in which the main opposition party (NLD) won 81 per cent of the seats (392 seats out of 485 in total) and 60 per cent of the votes. However, the official announcement of the results of the elections was postponed by the SLORC in order to allow the Election Commission set up by the SLORC to scrutinize the expense accounts of all elected representatives.
10. Beginning in early 1992, a mass exodus of Myanmar Muslims from Rakhine State into Bangladesh was reported. At least 250,000 such persons have sought refuge for fear of persecution. On 28 April 1992, the Governments of Myanmar and Bangladesh signed an agreement for the voluntary and safe return of the refugees. By October 1993, approximately 40,000 refugees had returned to Myanmar under this arrangement.
11. In April 1992, General Than Shwe became Chairman of the SLORC after General Saw Maung had resigned from the post for reasons of health. Since this change of leadership, a number of new policies have been announced and implemented including: the release of many political leaders in detention (including the Former Prime Minister U Nu, but not Daw Aung San Suu Kyi); the holding of a National Convention for drafting the principles and guidelines for a new constitution; the granting of permission to the family of Daw Aung San Suu Kyi to visit her; the opening of universities and other institutions of higher education; the lifting of the curfew order and martial law; and the cessation of military tribunals of civilian cases.
12. On 9 January 1993, the National Convention was convened. The participants were composed of 702 delegates from eight categories as follows: (a) representatives from political parties including NLD (49); (b) representatives elected in the 1990 elections (107); (c) representatives of national racial groups (215); (d) representatives of peasants (93); (e) representatives of workers (48); (f) representatives of intelligentsia and technocrats (41); (g) representatives of state service personnel (92); and (h) other invited persons (57). The meeting of the National Convention has been adjourned several times for reasons not quite clear to outside observers.
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Introduction
13. In carrying out his mandate, the Special Rapporteur has continued to seek information from all relevant sources. During the past year, information in the form of letters and reports has been received on a regular basis from a wide variety of individuals and non-governmental organizations as well as from the Government of Myanmar. In November 1993, the Special Rapporteur visited Myanmar, conducted interviews with high-level government officials as well representatives of various United Nations specialized agencies and bodies including the office of the United Nations High Commissioner for Refugees (UNHCR) and the United Nations Development Programme (UNDP), representatives of various non-governmental organizations, and the people of Myanmar both inside and outside of the country as he paid visits to places relevant to his mandate.
B. The visit to Myanmar
1. Introduction
14. In September 1993, the Special Rapporteur addressed a letter to the Government of Myanmar requesting a visit to the country from 9 to 16 November 1993. In the letter, the Special Rapporteur also requested the honour of audiences with high governmental officials, meetings in circumstances providing full confidentiality with leaders of political parties, including those in detention or under restriction, and in particular with Daw Aung San Suu Kyi. The Special Rapporteur further requested full and free access to all individuals, representatives of non-governmental and inter-governmental organizations, whom he may have deemed necessary to the carrying out of his mandate or who would have expressed the will to meet with him. Visits to prisons and other centres of detention, with confidential contact with those detained, were also requested. The Special Rapporteur also requested full access to other areas of the country, in particular Rakhine State, for the purpose of carrying out unrestricted and confidential visits with the recent repatriates and returnees. By letters dated 15 September and 8 October 1993, the Government replied that the Special Rapporteur would be welcome in Myanmar.
15. The Special Rapporteur undertook a visit to Myanmar from 9 to 16 November 1993. Prior to the visit, the Special Rapporteur had been in frequent contact with the Permanent Representative of Myanmar to the United Nations Office at Geneva and with the Minister for Foreign Affairs who cooperated fully and facilitated the visit. The Special Rapporteur wishes to report that during his visit to Myanmar all of the Special Rapporteur's specific requests for meetings with high government officials were met. Similarly, the visit to Rakhine State was facilitated with appropriate briefings, meetings and visits within the areas of concern. In general, the Special Rapporteur enjoyed relative freedom in his movements and freedom in his access to private persons and others of interest, with some notable exceptions which shall be addressed below. It is further noted that the Special Rapporteur was promptly furnished with all the documentary information he requested before, during and after his visit. Consequently, the Special Rapporteur would like to record his deep appreciation to the Government of Myanmar for its cooperation in facilitating his visit to the country and otherwise cooperating in responding to his requests for information and explanation.
16. With respect to his meetings with governmental representatives, the Special Rapporteur met in Yangon with the following persons: General Khin Nyunt, Secretary One of the State Law and Order Restoration Council (SLORC); U Ohn Gyaw, Minister for Foreign Affairs; Brigadier General Myo Thant, Minister of Information; U Tha Tun, the Attorney-General; and U Aung Toe, Chief Justice of the Supreme Court. The Special Rapporteur also met in Rakhine State the Commander of the Western Command of the Rakhine SLORC.
17. In the course of his visit to Myanmar, the Special Rapporteur paid visits to, in chronological order, the following governmental institutions and facilities: Dagon University in the Dagon New Township; Yangon General Hospital; First Military Hospital in Yangon; administrative offices of the Ministry of Home Affairs, Immigration and Manpower Department in Rakhine State and facilities of three reception camps along the Myanmar-Bangladesh frontier; Insein prison; and Yangon University campus. The Special Rapporteur also visited, in chronological order, and met with representatives of, the following non-governmental organizations: the Myanmar Red Cross Society; the Myanmar Maternal and Child Welfare Association; the Jivitadana Sangha Hospital for Monks and Nuns; the Tiger Parahita School for the Development of National Races (i.e. orphaned boys from throughout the country); and the Myanmar Medical Association. On 14 November 1993, the Special Rapporteur also met with representatives of the following political parties which are participating in the National Convention drafting the new constitution of the Union of Myanmar: the National League for Democracy (NLD); the Union Kayene League; and the National Unity Party (NUP).
18. While the information and views obtained in the course of his visits and meetings will be reflected below under relevant subject headings, the Special Rapporteur draws attention here to the salient aspects of his meetings with the five governmental representatives mentioned above.
2. The meeting with Secretary One
19. On the morning of 10 November 1993, the Special Rapporteur enjoyed a frank, open and lengthy exchange of views with General Khin Nyunt which touched upon most issues of concern for respect of human rights in Myanmar. On the matter of the general political organization of the State, General Khin Nyunt denied that Myanmar is run simply by a "military government". He explained that the SLORC, which he characterized as "essentially a military government but not so rigid", is managing a process of national reconciliation where a variety of insurgent groups are now being brought back into the legal framework of discussions and during which a National Convention is engaged in the process that would lead to the drafting of a new, strong constitution for the country. To counter anarchy and maintain security for the people, General Khin Nyunt stated that some harsh acts had been necessary in the first year of the SLORC, but that such acts had been few since then. In managing the process of national reconciliation and restoring law and order, General Khin Nyunt described a variety of social and economic development initiatives which had been taken by the Government in order to improve the lives of the people and help "build nationalism", i.e. the general sentiment of loving the country and building and protecting the nation. In this process, General Khin Nyunt personally paid visits to hundreds of townships and thousands of village tracks in order to hear the voices of the grass-roots of the population. Once the new constitution has been drafted and adopted, General Khin Nyunt assured the Special Rapporteur that a civilian government shall take power. With regard to the time-frame for the transfer of power to a civilian government, General Khin Nyunt stated that it was not yet the time to specify when a new constitution would be drafted and a new civilian government would be formed under such a constitution. However, he strongly stressed that (a) there will be a strong Constitution and (b) there will be a civilian government. He explained that, before achieving those goals, two basic conditions will have to be met: (a) political and social stability must be maintained, and (b) the "Union" as a multi-ethnic State must be secured so as to avoid a disastrous dissolution of the State. Thus, General Khin Nyunt continued, all insurgent groups had to be brought back into "the legal fold" before the objectives could be achieved. Concerning the Special Rapporteur's specific request to visit Daw Aung San Suu Kyi, General Khin Nyunt stated that it was "still too early", but that it might be "perhaps possible in the future" as he suggested the possibility of inviting the Special Rapporteur back to Yangon for this purpose "on short notice". When asked if the Government intends to release her on 20 July 1994, General Khin Nyunt answered that it was still too early to say.
3. The meeting with the Minister for Foreign Affairs
20. On the afternoon of 10 November 1993, the Special Rapporteur met with U Ohn Gyaw, Minister for Foreign Affairs, whereby the Special Rapporteur sought clarification on the status of the process of repatriation of the persons who had fled from Rakhine State to Bangladesh a year before and also the national process of democratization relating to the 1990 elections and the ongoing National Convention. The Minister explained that an agreement had been reached with the United Nations High Commissioner for Refugees (UNHCR) in an effort to ensure the "voluntary and safe return" of the persons who had left; it was the responsibility of the country of refuge to assure the voluntary nature of repatriation, while it was the responsibility of Myanmar to assure the safety of the refugees upon return. Both Myanmar and Bangladesh were pleased with this accord and the participation of UNHCR, but there remains the question of reconciling a significant discrepancy in the numbers of affected persons: the Government of Myanmar had cleared some 95,000 persons for return (later clarified as 123,934 upon the Special Rapporteur's meeting with relevant authorities in Rakhine State), while the Government of Bangladesh claimed that there were still 230,000 residents of Myanmar to return from Bangladesh. On the matter of the process of democratization, Minister U Ohn Gyaw explained that the "winners" of the 27 May 1990 elections had been announced in the newspapers, but that, in the absence of a constitution, there were no positions for those elected persons to take up. Consequently, there had been no "final announcement" or formal election notice (in the sense of publication in the Official Gazette). The Minister stressed that the National Convention, composed of personalities representing eight strata of society including many "winners" of the 1990 elections, was preparing constitutional principles and guidelines which would eventually be placed before a constituent assembly composed of the elected persons from the 1990 elections.
4. The meetings with the Attorney-General and the Chief Justice
21. On the morning of 11 November 1993, the Special Rapporteur met with Attorney-General U Tha Tun after having earlier met with Chief Justice Aung Toe. His discussion with the Chief Justice had addressed the recent trials of political leaders, the National Convention (which the Chief Justice is chairing), and some issues of legislative reform (for which the Chief Justice is not responsible but of which he has some knowledge as a member of the Law Revision Commission formed by the Government). As such, the discussion with Attorney-General U Tha Tun revolved around new legislation, such as the Child Protection Law, which fully incorporates the United Nations Convention on the Rights of the Child, and reform of existing Myanmar legislation for which the Attorney-General has some responsibility both in his Governmental Office and as Chairman of the Law Revision Commission. It is to be noted here that, in response to the Special Rapporteur's inquiries and requests, the following complete lists were subsequently supplied to the Special Rapporteur: (a) the 99 Laws enacted by the SLORC between 18 August 1988 and 12 November 1993; (b) the 186 Laws repealed by the SLORC; and (c) the 93 Laws under review. It is also to be noted that the Law Revision Commission, over which the Attorney-General presides, is officially known in SLORC Notification No. 33/91 of 17 July 1991 as the "Laws Scrutiny Central Body".
5. The meeting with the Minister of Information
22. On the afternoon of 15 November 1993, the Special Rapporteur met with Brigadier General Myo Thant, Minister of Information, together with members of the Information Committee over which the Minister presides. The subject of discussion focused on the democratization process and, in particular, the National Convention. At the beginning, the Minister recounted the process from its very start, explaining how the Preparatory Committee for the National Convention was constituted, specifying the composition of delegations to the National Convention, and highlighting the achievements of each meeting of the National Convention since it began on 7 January 1993 through to its recent adjournment (the National Convention was to reconvene in plenary on 18 January 1994). On the subject of legal processes against political leaders, the case of Dr. Aung Khin Sint was briefly discussed in so far as the offence involved related to circulation of a note in the context of the National Convention. On the subject of the Government of Myanmar's laws relating to the 135 national races of the country, the Minister of Information explained that this figure and the specific classifications arose simply from the results of the 1983 census where individuals had identified themselves as belonging to one of 135 different groups; 35 such groups were said to have less than 10,000 members, while only 5 groups had more than 1 million members. The Minister provided further basic information on the following subjects: (a) the nature of the newly constituted Union Solidarity and Development Association; (b) the present composition of the Government; (c) the present costs and availability of basic commodities; and (d) the remaining number of political prisoners. It should be noted that, in relation to the deliberations on a future constitution, the Minister accepted the Special Rapporteur's suggestion that a copy of the Universal Declaration of Human Rights, in the Burmese language, be provided to every National Convention Delegate. By letter dated 7 January 1994, the Special Rapporteur transmitted an authentic copy of the Universal Declaration of Human Rights in the English language, together with an unofficial translation in the Burmese language, to the Minister of Information in the hope that copies of the Declaration would be circulated to all National Convention Delegates upon the reconvening of the Convention on 18 January 1994.
23. In addition to meetings with high-level government officials, the Special Rapporteur visited a number of places relevant to his mandate. The impressions and views of the Special Rapporteur on those visits are briefly described below.
6. The visit to Insein prison
24. On the afternoon of 12 November 1993, the Special Rapporteur visited Insein prison. The prison warden informed the Special Rapporteur that there were 4,061 prison inmates of whom 942 were women (the prison had a capacity of 5,000). No prisoners were awaiting death because all death sentences had been commuted by an order of November 1992. The Special Rapporteur was first guided to a small building where four women inmates were kept in separate cells of approximately 100 square feet having one 4-square-foot window high on one side of a wall. In another building, about 150 women inmates were grouped together in a large hall dressed in white cotton and sat cross-legged in silent rows with their heads bowed. There were female guards, well trained and disciplined, watching the women's section of the prison. Later, the Special Rapporteur passed through another row of cells where male inmates were kept in separate rooms about the same size as the womens' cells. The physical health conditions of the inmates appeared to be normal. The Special Rapporteur also viewed the hospital building which could accommodate up to 50 patients. The doctor serving there informed the Special Rapporteur that, while less serious illnesses could be treated there, the most serious cases would be sent to Yangon Hospital; such cases would number about 50 to 100 a year.
25. Towards the end of his visit to Insein prison, the Special Rapporteur was allowed to meet with two political leaders detained there: U Tin U, who had a distinguished military career and had been in command of the military and was subsequently Minister of Defence; and Dr. Aung Khin Sint, an NLD member elected in the 1990 elections and a delegate to the National Convention. The meetings took place in front of the prison warden and other staff of the prison accompanied by a group of photographers.
26. U Tin U greeted the Special Rapporteur in front of a small building where he was being kept. The building was a separate one-storey house with an entrance, sleeping section and a toilet and kitchen facilities behind. At the outset of the meeting, U Tin U proclaimed that he was a "political prisoner" despite the claim of the authorities that he was an "ordinary criminal". He stated that he had suffered five months of effective house arrest before being brought before a military court on numerous charges. He said that he had been charged, in particular, with: (a) inciting the entire population for democracy and human rights; (b) corresponding with parliamentarians of the European Communities, Japan and the United States of America; and (c) meeting with military personnel and others in groups. Government witnesses presented testimony at his trial, but he was denied the right to cross-examine them. After hearing the witnesses, the Court proceeded to sentence him to three years' imprisonment; he assumes that it was preconceived. He had already served three years in prison and had, in fact, already served another year. Instead of being released, he is now serving an additional seven years to which he was sentenced by a second military court for the exact same charges. He pleaded res judicata, but the judge did not seem to understand what he was saying, and found him guilty again and sentenced him to a second (more severe) term of imprisonment to be served consecutively to the first. U Tin U declared; "I love the army, but I love the people more than the army". He stated that, after the 1990 elections, many people had been detained for a long time without trials as "ordinary criminals". He sought their release and remedies. So, he came to this fate. U Tin U indicated that his treatment was good (he appeared to be physically and mentally healthy). The doctor takes good care of him although a shortage of medicines is a problem. His wife comes to see him every two weeks. He has access to all the religious books and the New Light of Myanmar, but he receives no other information and no other entertainment.
27. Following the meeting with U Tin U, the Special Rapporteur was taken to another building, adjacent to the house where U Tin U was kept, with a few cells, one of which held Dr. Aung Khin Sint. When the Special Rapporteur walked into the cell, together with the prison warden and his staff and accompanying photographers, Dr. Aung Khin Sint stood in the centre of the room which was approximately 16 square metres with a small window on the opposite side of the entrance. Dr. Aung Khin Sint addressed the Special Rapporteur in the Burmese language, as he clearly indicated he had been advised to do. He said that he had done his medical training in England and obviously spoke English well. At the outset, he paraphrased what he called an English proverb: "When one flies over a cuckoo's nest, one meets with problems and difficulties". Dr. Aung Khin Sint stated that the Special Rapporteur should know that those he meets would face problems and would be likely to be sentenced to 10 years' imprisonment. He said that he had once flown over a cuckoo's nest and he did not want to do the same thing again. Therefore, he must be careful how to answer the questions raised by the Special Rapporteur. If he answered "wrong", his 20-year prison sentence would become 40 years. He further stated that, as for the reasons of his imprisonment, they were clearly stated as according to existing laws: such information could be obtained from the Government. He said he had been tried in a special court, i.e. not an ordinary court. It was his own choice that he did not hire a lawyer because he wanted to defend himself. He had received his sentence recently and was intending to appeal through the proper channels. Dr. Aung Khin Sint informed the Special Rapporteur that he was treated well in the prison and had even received a new tooth in his first week there. In concluding, he repeated that he did not want to be in prison for 40 years, and so he preferred to say no more.
28. Following the meetings with the political leaders in prison, the Special Rapporteur returned to the reception room where he requested and was shown the prison records. Specifically, three registry books were brought: one, as a general example, from several years back, and then the two books wherein U Tin U and Dr. Aung Khin Sint were registered. The books were found and brought with relative ease, and all were in order, i.e. all necessary entries had been made including bases of imprisonment, dates, etc. The entry of U Tin U stated, inter alia, that he had been admitted on 22 December 1989 at 16.20 p.m. and that he had been sentenced for breaching the 1950 Emergency Law, sections 5 (a), (b), (c) and (g), and also Law 114. It was also recorded that he had been sentenced to three years plus seven years' imprisonment and that he had appealed. Dr. Aung Khin Sint's entry stated, inter alia, that he entered the prison on 27 October 1993 and had been sentenced on 15 October 1993 to a total of 20 years as follows: (a) 7 years for violation of section 5 (j) of the 1950 Emergency Law; (b) 11 years (7 years plus 4 years) for 2 offences of sections 6/17 and 20 of the Publications and Printing Law; and (c) 2 years for violation of section 5 (1) (4) of the Official Secrets Act.
7. Visits to hospitals
29. On the morning of 12 November 1993, the Special Rapporteur visited the First Hospital in the Hlaing Thaya New Township and the Yangon General Hospital in Yangon. On the afternoon of the same day, he visited the First Military Hospital in Yangon. On the morning of 15 November 1993, the Special Rapporteur visited the Jivitadana Sangha Hospital for Monks and Nuns in Yangon. The buildings and facilities of the hospitals looked clean and adequate. The doctors and nurses were competent, well trained, courteous and dedicated to their work. The Special Rapporteur was told at Yangon General Hospital, the largest and most sophisticated of the four, that they needed more advanced equipment for diagnosis and surgery. The Special Rapporteur requested to see the storerooms of medical supplies at each hospital. They all seemed to have a full complement of medical supplies which were said to be replenished regularly. The Special Rapporteur observed, however, that some medical supplies at the First Hospital in Hlaing Thaya New Township, the smallest and least sophisticated of the four, had just been freshly delivered in boxes. While the Special Rapporteur was not able to find any concrete evidence to prove the allegation that people suffer from a shortage of medicine because medical supplies were given to the military first and some were sold on the black market at high prices not easily affordable to ordinary citizens, he learned from interviews with ordinary people on the street that they cannot get enough medicine even at a large hospital.
30. At the First Military Hospital, which mainly serves the military personnel and their families (although it was explained that about 20 per cent of the patients were non-military people), the Special Rapporteur was told that it was just about to start a training programme with the help of the International Committee of the Red Cross (ICRC) on the subject of war medicine and treatment. They use the "Rules for Behaviour in Combat" booklet in their education. Through this training, doctors will pay more attention to cases of untoward injuries, such as injuries suffered in fighting and possibly alleged injuries suffered from torture and the like. The military doctors do visit in the prisons, too. There were said to be occasional fights between prisoners and sometimes with guards, and the doctors try to note the cases. But the Special Rapporteur was told that it was not easy to discern how injuries were actually sustained. Aside from the ICRC training programme conducted in Myanmar, the Government has sent the military's Chief Instructor and the head of its Judge-Advocate-General's office to the courses given by the International Institute of Humanitarian Law at San Remo, Italy, on humanitarian law to be followed by two more weeks of training at the ICRC headquarters in Geneva. In terms of their own training programmes, it was explained that humanitarian law was taught in the Defence Services Academy and two other military colleges.
8. Visits to the Myanmar Red Cross Society and
the Myanmar Medical Association
31. On the afternoon of 11 November 1993, the Special Rapporteur visited the Myanmar Red Cross Society at their offices and met with its representatives led by Dr. Tin U. The subject of discussion went directly to the problem of AIDS. In response to the inquiry of the Special Rapporteur, it was explained that there are fewer than 1,000 cases of AIDS in Myanmar and between 4,000 and 5,000 cases of HIV+. However, the numbers are on the increase and the Society is responding to the problem through a large programme of public health education. With respect to the specific problem of the Myanmarese girls who had returned from Thailand diagnosed HIV+, Dr. Tin U himself had gone to the Thai border to inspect the situation. He said that the girls who had returned from Thailand were living together and were being "rehabilitated" through learning cooking and sewing and other skills in the facility operated under the Department of Social Welfare. Of the total of 139 such girls, 43 had tested HIV+. The reason for the high ratio of HIV+ among the returnees was explained that they were sent back to Myanmar because they were suspected of having been infected. On the subject of the Geneva Conventions, the Myanmar Red Cross Society was cooperating with the ICRC in a dissemination project. Such cooperation was expected to continue. In the next days, the ICRC Military Coordinator was to be lecturing to officers of the army.
32. On the morning of 16 November 1993, the Special Rapporteur met with the representatives of the Myanmar Medical Association. The Special Rapporteur was informed that a Food and Drugs Control Act had recently been passed and under this law several projects were under way to address the problem of shortage of medical supplies. Consequently, there was said to be "no shortage of essential drugs".
9. Visits to university campuses
33. On the morning of 10 November 1993, the Special Rapporteur visited Dagon University which had been recently opened in the Dagon New Township. There were a few newly constructed buildings for offices, classrooms, auditoria and general stores. There were evident plans to construct more buildings with the intention of making a large university accommodating more than 10,000 students in the future. The day of the Special Rapporteur's visit coincided with registration day at the university and there was a crowd of young students in the registration office waiting for the admission registration process to be completed. The Special Rapporteur asked about 10 young men and women to gather with him in an empty room to have a private conversation. All of them, looking bright and honest, said that they were interested in mathematics or natural sciences and were disinterested in politics. In his discussions with the Rector and other staff of the university, the Special Rapporteur learned that the content and textbooks of the lectures in all subjects taught at universities in Myanmar are centrally controlled and that it was not possible for individual professors or instructors to develop their own courses using materials or textbooks of their own choice. The Special Rapporteur stated that such practices were contrary to what he knew of "academic freedom" and would severely handicap the university's capacity to encourage learning and research through free thinking, free discussion and free expression of ideas.
34. On the afternoon of 15 November 1993, the Special Rapporteur briefly visited the campus of Yangon University. The university gates were officially closed because the university was in recess, so the Special Rapporteur was told, and there were practically no students or staff visible on the large campus composed of many mostly very old buildings for classrooms, offices, faculty residences and student dormitories surrounded by green trees. Some pedestrians were visible casually walking through the campus. Apart from the lack of visible student life, the campus appeared normal.
10. Visit to Rakhine State
35. On 13 and 14 November 1993, the Special Rapporteur visited Rakhine State under the kind and efficient arrangements of the Government of Myanmar and the military. He observed the operations at two reception camps near the border with Bangladesh. His visit coincided with the return of some 500 persons who had fled to Bangladesh. There were three Bangladesh officials who accompanied the returnees and assisted in the identification processes conducted by the Myanmarese officials. Officials from both countries were seen to be handling the matter quite professionally and efficiently. However, the returned refugees waiting for identification or for provision of food of other daily necessities appeared uncertain of their fate. The Special Rapporteur interviewed three male returnees privately, but through interpreters provided by the local authorities which was found necessary because the witnesses did not understand the Burmese language. They were chosen by the Special Rapporteur randomly from among 10 or so returnees preselected by the local authorities. They all said that the reason they had gone to Bangladesh was because of a shortage of food and an unavailability of employment. They stated that they had decided to come back because they had been told that the Myanmar and Bangladesh Governments had signed an agreement and that they had to come back. Two of the three returnees interviewed reported that they had returned to their former houses which required some repair; the third said that he had had to go to his father's house because his own house had been destroyed by a rain storm.
36. On the morning of 14 November 1993, the Special Rapporteur met with Major-General Win Myint, Commander of the Western Command of Rakhine SLORC. He told the Special Rapporteur that the problem of the Muslim population in Rakhine State was complex and that its history dated back to the British colonial era when the British had brought labourers from Bengal, which was then also under British rule, to the more fertile land of what is now known as Rakhine State. Many of these labourers stayed even after the area became part of what is today Myanmar. There are now approximately 600,000 Muslim residents in Rakhine State the total population of which is approximately 2,300,000. Myanmar people were said to have treated the Muslim population kindly and today the Government is trying to assist the development of the area by constructing schools, hospitals, roads and bridges. However, many of the Muslims were said not to love the country or to want to work. The difficulty of economic life was said to be the main reason for their move to Bangladesh. It was said that they had thought that they would get enough food, clothing and shelter in the UNHCR camps in Bangladesh without hard work. There was also said to be the problem of insurgent Muslim groups in Bangladesh who obstruct the process of repatriation.
11. The meetings with leaders of political parties
37. On the afternoon of 14 November 1993, the Special Rapporteur met with representatives of three political parties participating in the National Convention, i.e. the Union Kayene League, the National League for Democracy (NLD) and the National Unity Party (NUP). In spite of the strong request by the Special Rapporteur to meet with them in private at his office in the United Nations compound in Yangon, the meetings were arranged to take place at a Government Guest House (36 Inya Road). The location and atmosphere were evidently not conducive to a free and unencumbered exchange of views.
38. The Special Rapporteur first met with the two representatives from the Union Kayene League: Chairman U Mahn Tay Aung Than and Vice-Chairman U Saw Than Aung. The representatives stated that the group had been formed in 1948 (reorganized in 1988) and that five delegates from the Union Kayene League freely attended the meetings held in the context of the National Convention. The League's membership was said to be approximately 5,000. The 27 Central Committee members all stood for election in the 1990 elections, but all failed to be elected. They stressed that they were natives and citizens of Myanmar, which they referred to as their "motherland". They stated: "We must do our best for our motherland". The motto of the Union Kayene League was said to be "Peace and Prosperity". They claimed to seek love and peace between all national races without hatred. In this vein, the representatives insisted that the country needs reconciliation "because some in the past have said unscrupulous things: we need law and order to make national solidarity". They said that they preferred the 1947 Constitution because it provided for more democracy. The representatives said that, when the National Convention is meeting, they could get together in groups and circulate their materials to their people. However, they added that "the world is not as wide as before; whatever we do, they know".
39. Then, the Special Rapporteur met with the two representatives of the NLD: Chairman U Aung Shwe and Vice-Chairman U Lwin. They explained that there were 92 delegates from the NLD participating in the National Convention. In the Convention, 15 points which would eventually form 15 chapters in the new constitution had been agreed upon by May 1993. On 6 May 1993, the Work Committee for the National Convention told the delegates that they would next discuss the draft chapter by chapter, beginning with the first chapter. However, on 6 June 1993, the delegates were told to state their views on all the chapters. The NLD was not prepared to do so; they were only prepared to make a detailed statement on the first chapter (entitled "Basic Principles"). Most other parties were prepared to make comments on all the chapters. The Shan NLD representatives spoke in detail on the first chapter, but said very little on the other chapters. On 16 November 1993, the Work Committee announced that the National Convention had concluded all the discussions on all the chapters and that the Convention would go into recess until 18 January 1994. This was contrary to what was understood by the NLD. The NLD considers that the Convention completed deliberation only on the first chapter and, therefore, they were not certain what would happen when the Convention was to reconvene in January 1994. The representatives informed the Special Rapporteur that the delegates to the National Convention could discuss matters in relative freedom in the Kyaikkasan Grounds (the camp where all the delegates stay during the meetings of the Convention), but, of course, there is always someone around when they meet and discuss matters. When the NLD delegates wish to meet and discuss matters at their office, they have to seek permission from the Government which is not easy to obtain in the case of the NLD (other parties seem to get such permission more easily). Also, the NLD was not permitted to publish any documents while other political parties seem to manage to publish their documents and newsletters.
40. The Special Rapporteur met with two representatives of the National Unity Party (NUP), which was formed out of the former Burma Socialist Programme Party (BSBP), and claimed a membership of about 1 million: U Khin Maung Cyi, an Executive Committee member, and U Han Shwe, the Secretary of the Political Department. They said that the party had eight delegates in the National Convention (five for the party and three from the elected representatives). The Special Rapporteur was informed that the NUP knew that they were expected to make statements on all 15 chapters of the new constitution and they did so in June 1993. The Special Rapporteur was further informed that the NUP was permitted to produce booklets and to distribute to its members.
C. The visit to camps in Thailand
41. Following his visit to Myanmar, the Special Rapporteur travelled to the frontier of Myanmar on the Thai side in order to meet with persons from Myanmar living in camps which skirt the Myanmar-Thai border. The visit to Thailand was conducted between 16 and 20 November 1993. The two camps visited were driving distance from the Thai city of Mae Sot. It is believed that there are approximately 60,000 persons who have fled Myanmar and are living in similar camps in the border area.
III. ALLEGATIONS
A. Arbitrary arrest and detention
42. The Special Rapporteur welcomes the fact that more than 2,000 persons detained under the emergency regulations have been released since April 1992. Allegations have nevertheless been received that under the prevailing SLORC orders and other emergency decrees many persons have been arrested for criticizing the SLORC and the army (Tatmadaw) or for openly criticizing the process of the National Convention. Reports indicate that up to 60 persons may have been detained since July 1993 for engaging in political activity although many of them have now been released.
43. By a letter dated 30 September 1993, the Special Rapporteur requested the Government of Myanmar to provide information regarding the following persons allegedly arrested: (a) U Aung Myint, Daw Khin Mar Aye and Htay Myint (alias Khin Soe) who were allegedly arrested in December 1992 for printing and distributing leaflets criticizing the National Convention; (b) Dr. Aung Khin Sint and U Than Min who were allegedly arrested in August 1993 for being "engaged in unscrupulous activities with intent to undermine the National Convention"; (c) Ma Thi Da, Nay Thin Myint, Bo Lay, Thet Oo, Tin Htune, Khin Maung, Kyaw Than, Kyi Myint and Than Min who were allegedly arrested in August 1993 in connection with the National Convention.
44. By a joint letter of 12 October 1993, the Special Rapporteur and the Chairman of the Working Group on Arbitrary Detention requested the Government of Myanmar to provide information concerning the legal situation of the following persons who were allegedly arrested on or about 3 September 1993 and detained at Insein prison on charges, in particular, of printing material without a permit, distributing illegally printed matter and committing acts against State security: Ma Thi Da, U Khin Maung, U Kyi Myint, U Kyaw Than, U Lwin Oo, U Win Kyi, Ne Thin Myint, Bo Lay, Thet Oo, Ne Win, U Thin Thun, U Han Sien, Myu Win and Than Myin (some names overlapping with those listed in the foregoing paragraph).
45. In a note verbale dated 17 October 1993, the Government of Myanmar provided the Special Rapporteur with the following response to the above inquiries:
"1. Legal Action was taken against U Aung Myint, aged 57, Daw Khin Mar Aye, aged 53, and Htay Myint (alias) Khin Soe, aged 37, for distribution of seditious leaflets which could be detrimental to the security of the Union and maintenance of public law and order in accordance with section 5 (i) of the 1950 Emergency Provisions Act.
"2. Legal Action was taken against the following persons:
(a) Dr. Aung Khin Sint
(b) U Than Min
(c) Ma Thi Da
(d) Nay Tin Myint
(e) Bo Lay
(f) Thet Oo
(g) Tin Htun
(h) Khin Maung
(i) Kyaw Than
(j) Kyi Myint
(k) Than Myint
for infringing the existing laws. Each person has been charged and is being prosecuted in the Yangon Division Law Court presided over by two Divisional Judges.
"3. In the Union of Myanmar, arrest or detention of a person is made in accordance with the provisions contained in the Criminal Procedure Code enacted in 1898. The person concerned is formally charged and defended by a Legal Counsel, and a fair trial is conducted by a competent court. He has the right to appeal. The details concerning arrest or detention and trial of cases are appended herewith.
"4. The following are the detailed charges against the persons mentioned in the summary of allegations received:
Name of defendant Charges
(Charges against 11 persons - (a) to (k) - are (Unlawful Association Act 17 (1) - distribution and dissemination during 1993 in Yangon Division of literature and leaflets issued by terrorist groups.
1950 Emergency Provisions Act 5 (j) Action which could be detrimental to the security of the Union and order: distribution and dissemination of literature and leaflets.
Section 17/20 of Registration of Printers and Publishers Law Infringement of this law for illegal action mentioned above.
(a) Khin Maung (alias) Nyi Nyi Unlawful Association Act 17 (1
(b) Than Min (alias) Tin Tun Aung
(c) Thet Oo
(d) Ko Lay (alias)Aung Naing Oo
(f) Lwin Oo
(g) Kyaw Than
(h) Ma Thida
(i) Han Sein
(j) Kyi Myint
(k) Tin Tun (alias) Rashid
------------------------------------------------------------------------
(a) Dr. Aung Khin Sint
(b) U Than Min (alias) Tin Tun Aung
1950 Emergency Provisions Act 5 (j)
Both were found to have instigated the delegates attending the National Convention by surreptitious means to cause disruption and disorder among the delegates. Both of them distributed leaflets in May 1993 fraudulently under the name of 'monks and laity'.
Section 17/20 of Registration of Printers and Publishers Law
The infringement of this Law for illegal action mentioned above, including letters of threat to the delegates.
------------------------------------------------------------------------
(a) Dr. Aung Khin Sint
The Burma Official Secrets Act, section 5 (1) (4)
He infringed the above Law by making use of an official document in committing the above-mentioned illegal acts."
46. With respect to Criminal Procedure Code of 1898 referred to by the Government of Myanmar in paragraph 3 of its letter quoted above, it has recently been brought to the attention of the Special Rapporteur that the licences of 10 lawyers were revoked by order of the High Court on 30 July 1993 as a consequence of convictions by military tribunals for various offences including offences of the 1950 State Protection Act, section 5 (j). The background of this order and its implications for the administration of justice in Myanmar are not yet clear to the Special Rapporteur.
47. With respect to the charges and judicial procedures in the case of Dr. Aung Khin Sint, the Special Rapporteur has been provided with copies of the judgements delivered by the North Kayain District, Yangon Division, Court on 15 October 1993. The judgements were separately given for charges under: (a) the 1950 Emergency Provisions Act, 5 (j); (b) Section 17/20 of the Registration of Printers and Publishers Law; and (c) The Burma Official Secrets Act, section 5 (j) (4). However, each judgement refers to both Dr. Aung Khin Sint and U Than Min. Moreover, and as concerns the factual basis of the accusations leading to the judgements, the content of an allegedly threatening letter distributed by Dr. Aung Khin Sint was not provided in the judgement.
B. Torture and other cruel, inhuman or degrading treatment
48. Extensive allegations have been received that torture and other cruel, inhuman or degrading treatment have continued to be used by the Myanmar Army, police and intelligence services personnel. Such practices are said to have been used routinely in the interrogation of persons and in the treatment of porters, forced labourers and members of ethnic minorities.
49. The serious cases of torture and other cruel, inhuman or degrading treatment continue to occur in the context of military operations, forced portering and labour and forced relocation. They typically take the following forms: (a) forcing persons to carry heavy loads (in most cases, about 50 kg) of weapons, ammunition, food and other supplies for the army in mountainous areas and in harsh weather conditions; (b) beating, drowning and stabbing in cases of disobedience or attempts to escape; and (c) raping and other sexual assaults. The Special Rapporteur is particularly concerned about some recent reports alleging the taking of women and children for purposes of portering, where men are not available, and of subjecting them to the kinds of treatment described above.
50. In addition to the extensive reports received by the Special Rapporteur alleging widespread torture and other cruel, inhuman and degrading treatment in Myanmar, he has also interviewed persons claiming to be victims of such human rights violations. On some specific cases, the Special Rapporteur draws attention to the report of the Special Rapporteur on torture (E/CN.4/1994/31, paras. 399-403); in this connection, the Special Rapporteur is also aware that the Government of Myanmar has recently responded in detail to the allegations transmitted by the Special Rapporteur on torture.
C. Disappearances
51. The Special Rapporteur has received allegations stating that during the mass demonstrations of 1988 and December 1991, hundreds of persons, including students, monks, workers, writers, professors and others, were arrested or shot to death and that the whereabouts of many of these persons have never been established. It is believed that many remain in unacknowledged detention and that others have been buried in mass graves reported to be located in an army base near the airport and in the Hlaing Thaya New Township. It has also been reported that many of the persons detained recently for their activities in connection with the National Convention have been held incommunicado for at least a period of time after the detention. Many cases of disappearance have been reported in the context of military operations and forced portering, labouring or relocation. One report received by the Special Rapporteur stated that "the victims were simply taken away by SLORC troops and 'disappeared'".
52. A specific response of the Government of Myanmar to the allegation of disappearances is found in the note verbale dated 17 October 1993 sent by the Government to the Special Rapporteur. As reproduced by the Special Rapporteur in his interim report to the General Assembly (A/48/578, para. 12), the Government stated, in particular, the following in paragraphs 5 to 7 of its reply:
"5. Allegations stating that during the mass demonstrations of 1988 and December 1991, hundreds of persons including students, monks, workers, writers, professors and others were arrested or shot to death and that the whereabouts of many of these have never been established; that many remain in unacknowledged detention and that others have been buried in mass graves reported to be located in an army base near the airport and in the new Hlaingthaya Township are totally false and unfounded.
"6. Under the existing laws, organizations empowered to arrest any person who has committed an offence maintain a register of persons arrested by them in accordance with the law, and reports have to be submitted to the relevant authorities concerning such arrests.
"7. Under the existing laws of Myanmar, no one can be arrested and detained if it is not in accordance with the law. It is provided in section 61 of the Code of Criminal Procedure and no police officer shall detain in custody a person arrested, for a period exceeding 24 hours. Where it is necessary to detain such an accused for more than 24 hours, a special order of a Magistrate has to be obtained under section 167 of the Code of Criminal Procedure. If an arrest which is not in accordance with the law is made, the person making the arrest is liable to be punished under sections 341 to 348 of the Penal Code."
D. Extrajudicial, summary or arbitrary executions
53. The Special Rapporteur welcomes the decision of the Government of Myanmar, according to SLORC Order No. 12/92, to commute all death sentences passed by civil or military courts or tribunals between 18 September 1988 and 31 December 1992 to transportation for life (life imprisonment). However, the Special Rapporteur is particularly concerned about the reports from various reliable sources that there are still many cases of arbitrary killings of civilians by soldiers. For instance, the Special Rapporteur was informed that, as recently as September and October 1993, 18 villagers were murdered in Kyauk Kyi Township, Pegu Division, by members of Infantry Regiment Nos. 73 and 351. The victims were generally charged as "KNU (Karen National Union) sympathizers", but none of them were in fact involved in anti-government activity. According to this report, those 18 victims were known cases and it is believed that many other villagers, who had been taken by the army and whose whereabouts remain unknown, were also murdered.
54. Other cases of reported extrajudicial, summary or arbitrary executions were described in paragraphs 20 to 23 of the interim report of the Special Rapporteur to the forty-eighth session of the General Assembly (A/48/578) of 16 November 1993. In response to the request of the Special Rapporteur to receive information describing any investigations into these allegations undertaken by the Government, the Government of Myanmar replied, by a note verbale dated 17 October 1993, as follows (and as previously reported by the Special Rapporteur in paragraph 12 of his interim report referred to above):
"All allegations stated under this heading are totally false and unfounded. While undertaking our three main causes, which are non-disintegration of the union, unity and solidarity of the national races and perpetuity of sovereignty, the Tatmadaw has never, at any time committed such atrocities nor will it ever do so in future. There have been numerous cases running into thousands where the Tatmadaw, even in skirmishes with the insurgents, have treated captured persons very well and then handed them over to the police for prosecution for the offences committed. Atrocities such as demanding rice, livestock or money from villagers, rape of rural women, forced conscription and mass execution of villagers are being committed only by the insurgents time and again. It is believed that these allegations are based upon false information given by the insurgents, persons communicating with insurgents and persons who are endeavouring to bring down the government of the State Law and Order Restoration Council."
55. Although the Special Rapporteur is aware that sometimes reports of arbitrary killings tend to be exaggerated or distorted, that there are cases of good treatment of villagers and captured insurgents by the Tatmadaw soldiers and that the insurgents also commit serious violations of human rights now and then, the Special Rapporteur cannot deny, in view of so many reports confirmed by him as reliable, the fact that atrocities are being committed consistently and on a wide scale by the soldiers of the Myanmar Army against innocent villagers (particularly those belonging to ethnic minorities) in the form of extrajudicial execution, forced labour, rape, forced relocation and confiscation of property. In private conversations held with the Special Rapporteur, some high ranking officers of the army acknowledged the existence of such atrocities, but added that these were committed only rarely by some bad soldiers.
E. Treatment of the Muslim population in Rakhine State
56. In accordance with the agreement reached between Myanmar and Bangladesh on 28 April 1992, repatriation of the Myanmar residents having fled to Bangladesh began on 22 September 1992. In order to facilitate a systematic and orderly repatriation, five reception camps were established on the Myanmar side of the border on 15 May 1992. Of the five camps, only three are in fact being used. The Special Rapporteur visited two such camps in the course of his visit to Rakhine State on 13 and 14 November 1993. According to the figures supplied by the Government, a total of 9,209 households and 41,098 persons (20,103 males and 20,995 females) have been repatriated since 22 September 1992 and 12 October 1993. However, a substantial number of Muslim population from Rakhine State still remain in the camps on the Bangladesh side of the border. Many of them are said to be fearful of possible ill-treatment by the Myanmar authorities upon return and, therefore, do not wish to come back without some kind of international monitoring.
57. In this connection, the Special Rapporteur welcomes the willingness of the Government of Myanmar to cooperate with UNHCR, through elaboration of a Memorandum of Understanding with UNHCR signed on 5 November 1993, in order to ensure the voluntary and safe return of the Muslim population who had fled to Bangladesh from Rakhine State. The Special Rapporteur was informed that preparations for UNHCR involvement in the repatriation process is making steady progress and some UNHCR staff would soon be sent to Myanmar. A fund-raising operation for this purpose is under way and there have already been several positive responses from potential donors.
F. Labour rights
58. The Special Rapporteur has been informed that workers in Myanmar do not enjoy basic labour rights including, in particular, freedom of association and the right to organize. There is hardly any trade union movement, and workers and trade unionists who criticize the Government would risk interrogation and arrest. The Special Rapporteur takes note of the fact that the matter has been raised before appropriate bodies of the International Labour Organisation (ILO). It is hoped that the work of the ILO would result in progress in the area of labour rights in Myanmar. It should also be pointed out that the new constitution to be drafted would have clear provisions for basic labour rights in accordance with international standards.
G. Rights of the child
59. The Special Rapporteur is pleased to note that, by a letter dated 15 October 1993 from U Ohn Gyaw, Minister for Foreign Affairs of Myanmar, to Dr. Boutros Boutros-Ghali, Secretary-General of the United Nations, the Government formally withdrew the reservations made by Myanmar upon accession to the Convention on the Rights of the Child in July 1991 with respect to article 15 (regarding freedom of association) and article 37 (regarding the prohibition of torture, cruel, inhuman or degrading treatment in regard, inter alia, to the treatment of children during interrogation). However, the Special Rapporteur is disturbed to learn from the testimony of witnesses that there exist many cases of children being forced to serve the army as porters. This practice, which is reported to remain widespread, would involve a variety of human rights violations, including forced labour, cruel and degrading treatment (if not also torture), and threats to life.
H. The National Convention
60. On 9 January 1993, the Government convened a National Convention to lay down the basic principles for the elaboration of a new and enduring constitution. Of the 702 delegates from 8 categories of people, 49 are selected by the 10 political parties remaining after the 1990 elections, 106 are elected representatives and the remainder of the delegates from the other six categories were chosen by the SLORC. Before any real discussion could take place at the National Convention, a broad framework of basic objectives was given by the Government as follows: (a) non-disintegration of the Union; (b) non-disintegration of national solidarity; (c) consolidation and perpetuity of sovereignty; (d) emergence of a genuine multi-party democratic system; (e) development of eternal principles of justice, liberty and equality in the State; and (f) participation of Tatmadaw in a leadership role in the national politics of the future.
61. The Special Rapporteur has been informed that each of the eight groups represented were to have a panel of five chairmen who would lead the discussions and that, in the political parties group, only one chairman was from the NLD - the party that won a majority in the 1990 elections. In the elected representatives group, where 89 of the remaining 106 delegates were from the NLD, no NLD representatives were selected as chairmen.
62. In response to the query by the Special Rapporteur with regard to the allegation that, since the beginning of the National Convention, numerous participants have been disqualified or arrested for allegedly contravening the guidelines and, in particular, for having questioned the leadership role foreseen for the Tatmadaw, the Government replied, in paragraph 34 of its note verbale of 17 October 1993, and as reproduced by the Special Rapporteur in his interim report to the General Assembly (A/48/578, para. 12), as follows:
"The sweeping allegations that numerous participants were disqualified or arrested for various reasons are totally false. Out of all the delegates attending the National Convention, action was taken against the following five delegates:
"(a) The names of U Aung Htoo and Dr. Aung Khin Sint of the National League for Democracy were struck from the list of delegates representing the National League for Democracy. This action was carried out at the request of the National League for Democracy itself;
"(b) Legal action was taken against U Maung, who represented one of the national racial groups, for infringement of existing laws;
"(c) A representative from Pekhon constituency was disqualified as he became involved in and joined a terrorist group;
"(d) The name of U Maung Ngwe of the Union Paoh National Organization was struck from the list of delegates as he passed away on 25 April 1993."
I. The movement toward reconciliation with insurgents
63. The Special Rapporteur has been informed that Secretary One, General Khin Nyunt, during his visit to Kayah State on 17 and 18 November 1993, spoke on the Government's efforts to restore peace and tranquillity and to promote social and economic development in the country. In doing so he extended an official invitation to the armed groups to return to the legal fold, to hold talks with the Government and to join hands with the Government in the ongoing national endeavours for the development of border areas and national races. It has been reported that in response to this invitation the Karen National Union (KNU), the largest armed insurgent group, has decided to enter into talks with the Government of Myanmar. It is still too early to make any meaningful assessment of developments in this respect, but, from the viewpoint of protection of human rights, such a move towards true national reconciliation should be welcomed because, as stated above, many cases of serious human rights violations are being committed in the context of military operations.
IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
64. The visit of the Special Rapporteur to the Union of Myanmar at the invitation of the Government was facilitated by the efforts, cooperation and courtesy extended to him by the officials of the Government, in particular General Khin Nyunt, Secretary One of the SLORC, and U Ohn Gyaw, Minister for Foreign Affairs. Most of the requests of the Special Rapporteur to meet with persons pertinent to his mandate were met, including meetings with the Attorney-General, Chief Justice, Minister of Information, some political leaders in detention and representatives of political parties. However, the Special Rapporteur was disappointed that he was not allowed to meet with Daw Aung San Suu Kyi. He also regrets that the meetings with the representatives of political parties were held at a place and in an atmosphere not fully ensuring privacy. The Special Rapporteur, however, would wish to commend the Government for arranging quite efficiently his visits to Rakhine State, Insein prison and other places and facilities that he requested to visit.
65. The Special Rapporteur generally observed in Yangon and Sitway (the capital of Rakhine State) that there were visible signs of relaxation of tension in the life of the people. There were many consumer goods in market-places where many shoppers crowded. Streets and bridges have been constructed or improved. There were many cars on the streets. In fact, in the centre of Yangon, there were traffic congestions and parking problems at certain times of the day. However, the Special Rapporteur was informed that there were many poorer people in the cities and, in particular, in the countryside; these persons did not share in the prosperous life, and rather suffered from inflationary pressures on basic necessities such as rice and medicines.
66. The Special Rapporteur continues to be concerned about the serious restrictions imposed upon people in the enjoyment of civil and political rights. The people do not generally enjoy freedoms of thought, opinion, expression, publication and peaceful assembly and association. They seem to be always fearful that whatever they or their family members say or do, particularly in the area of politics, would risk arrest and interrogation by the police or military intelligence. Consequently, most people with whom the Special Rapporteur casually spoke avoided any conversation touching upon political subjects. Several people told him that there were many persons wishing to tell the Special Rapporteur their stories, but were too afraid to come to see him.
67. The persons whose civil and political rights are most severely restricted are the leaders of political parties, particularly the NLD leaders, and delegates to the National Convention, again those from the NLD. Because of both visible and invisible pressures, they cannot assemble in a group, cannot freely discuss, and cannot publish or distribute printed materials. In this situation it is difficult to assume that, in the National Convention, open and free exchanges of views and opinions are taking place in order to produce a truly multi-party democratic constitution.
68. The Special Rapporteur is pleased to note that a little over 2,000 persons who had been imprisoned for political activities have been released since April 1992. He would, however, express concern that there are still hundreds of such persons detained, most notably Daw Aung San Suu Kyi. He also regrets that, since the summer of 1993, up to 60 persons have been arrested for engaging in political activities. While some of them have been released, still others are detained and some have been sentenced to long prison terms.
69. Government representatives have repeatedly explained to the Special Rapporteur that the Government is willing to transfer power to a civilian government, but that, in order to do so, they have to have a strong constitution and that, in order to have a strong constitution, they are doing their best to complete the work of the National Convention. However, the Special Rapporteur cannot help but feel that, given the composition of the delegates (only one out of seven delegates was elected in the 1990 elections), given the restrictions imposed upon the delegates (practically no freedoms to assemble, to print and distribute leaflets or to make statements freely), and given the general guidelines to be strictly followed (including the principle regarding the leading role of Tatmadaw), the National Convention does not appear to constitute the necessary "steps towards the restoration to democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990" (General Assembly resolution 47/144, para. 4).
70. The Special Rapporteur welcomes the initiative of the Government of Myanmar to withdraw the two reservations relating to articles 15 and 37 of the Convention on the Rights of the Child.
71. The Special Rapporteur also welcomes the signing on 5 November 1993 of a Memorandum of Understanding between the Union of Myanmar and the United Nations High Commissioner for Refugees to facilitate and guarantee the voluntary and safe return of Myanmar residents from Bangladesh.
72. The Special Rapporteur further welcomes the undertaking of various training programmes for military officers and soldiers with the cooperation of the International Committee of the Red Cross and the Myanmar Red Cross Society in the area of international humanitarian law.
73. The Special Rapporteur is paying special attention to the recent successes of the Government initiative to invite the armed insurgent groups to enter into talks with the Government and he notes in particular some initially positive response from the Karen National Union. He is hopeful that the process will move forward in the direction of obtaining true reconciliation and peace throughout the country.
B. Recommendations
74. In the light of the foregoing conclusions, the Special Rapporteur submits the following recommendations for the consideration of the Government of Myanmar:
(a) The Government of Myanmar should fulfil in good faith the obligations it has assumed under Articles 55 and 56 of the Charter of the United Nations "to take joint and separate action in cooperation with the Organization for the achievement of ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion". In this respect, the Special Rapporteur would wish to note that the Government of Myanmar is in an ideal position because it could encourage the delegates to the National Convention to include various human rights provisions in the new constitution using, as a reference, the provisions of the Universal Declaration of Human Rights, copies of which the Minister of Information has agreed to circulate among the delegates;
(b) The Government of Myanmar should consider accession to the International Covenants on Human Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the two Protocols Additional to the Geneva Conventions of 1949;
(c) Myanmar law should be brought into line with accepted international standards regarding protection of physical integrity rights, including the right to life, protection against disappearance, prohibition of torture and cruel, inhuman or degrading treatment, providing humane conditions for all persons under detention and ensuring the minimum standards of judicial guarantees. Freedoms of thought, assembly and expression, including a free press and media, should be fully guaranteed;
(d) All political leaders, including elected political representatives, students, workers, peasants and others arrested or detained under martial law after the 1988 and 1990 demonstrations or as a result of the National Convention, should be tried by a properly constituted and independent civilian court in an open and internationally accessible judicial process. If found guilty in such judicial proceedings, they should be given a just sentence or, alternatively, they should be immediately released with the Government accepting responsibility to refrain from all acts of intimidation, threat or reprisal against them or their families. With respect to Daw Aung San Suu Kyi, the Government should release her immediately. In any event, she should not be kept under house arrest after 20 July 1994 when, according to the Government's own interpretation of Myanmar law, there will be no legal basis to continue to keep her under house arrest;
(e) The Government of Myanmar should take the necessary steps to bring the acts of soldiers, including privates and officers, in line with accepted international human rights and humanitarian standards so that they will not commit arbitrary killings, rapes and confiscations of property, or force persons into acts of labour, portering, relocation or otherwise treat persons without respect for their dignity as human beings. When the hiring of local villagers for porterage and other works may be required for governmental purposes, it should be obtained on a voluntary basis and adequate wages should be paid. The nature of work should be reasonable and in accordance with established international labour standards. When relocation of villages is considered necessary for military operations or for development projects, proper consultation with the villagers should take place and appropriate compensation should be paid for those relocations which may be determined necessary for reasons of the public good;
(f) Military and law enforcement personnel, including prison guards, should be thoroughly informed and trained as to their responsibilities for all persons in full accord with the standards as set out in international human rights instruments and humanitarian law. Such standards should be incorporated into Myanmar law and legislation, including the new constitution to be drafted. The training programme undertaken recently with the cooperation of the ICRC is a good start in this direction and should be continued;
(g) Given the magnitude of the abuses, official condemnation should be made by the Government of all acts by authorities involving human rights violations. Such acts, including all acts of intimidation, threat or reprisal, should not benefit from the present system of complete denial by, and impunity under, the Government;
(h) The Government of Myanmar should consider the revision of the 1982 Citizenship Law to abolish its burdensome requirements for citizenship. The law should not apply its categories of second-class citizenship in a manner which has discriminatory effects on racial or ethnic minorities, particularly Rakhine Muslims. It should be brought into line with the principles embodied in the Convention on the Reduction of Statelessness of 30 August 1961;
(i) The Government of Myanmar is encouraged to cooperate with UNHCR in facilitating and ensuring the voluntary and safe return of Rakhine Muslims from Bangladesh.
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UNITED NATIONS
Economic and Social Council
Distr. GENERAL
E/CN.4/1995/65
12 January 1995
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-first session
Item 12 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE TO COLONIAL AND OTHER DEPENDENT COUNTRIES AND TERRITORIES
Report on the situation of human rights in Myanmar, prepared by the Special Rapporteur, Mr. Yozo Yokota, in accordance with Commission resolution 1994/85*/
CONTENTS
Paragraphs
Introduction 1-16
A. Mandate 1-4
B. Historical background 5-16
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR 17-94
A. Introduction 17
B. Visit to Myanmar 18-93
C. Visits to camps in Thailand 94
II. ALLEGATIONS 95-144
A. Extrajudicial, summary or arbitrary execution 95-103
B. Arbitrary arrest and detention 104-113
C. Torture and other cruel, inhuman or degrading treatment 114-117
D.Freedom of movement 118-120
E. Freedom of expression 121-123
F. Labour rights 124-127
G. Rights of the child 128-129
H. Treatment of the Muslim population in Rakhine State 130-135
I. The National Convention 136-141
J. The movement towards reconciliation with insurgents 142-155
III. CONCLUSIONS AND RECOMMENDATIONS 145-155
Annexes:
(Documents given to the Special Rapporteur by the Myanmar authorities)
I. Response of the Government of Myanmar to allegations of extrajudicial execution while in Custody, as raised by the Special Rapporteur during his meeting with Colonel Kyaw Win of the Directorate of Defence Service Intelligence on 10 November 1994 p38
II. National armed groups which have returned to the legal fold p42
III. Chart showing particulars of those against whom action has been taken for having contact with KNU insurgents and who have been released by the Myanmar authorities during 1994 p 43
Introduction
A. Mandate
1. The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar has been described in each of the Special Rapporteur's previous reports to the General Assembly (A/47/651, A/48/578 and A/49/594), and to the Commission on Human Rights (E/CN.4/1993/37 and E/CN.4/1994/57). The mandate, initially articulated in Commission resolution 1992/58 and extended most recently by the Commission in its resolution 1994/85 of 9 March 1994 (approved by the Economic and Social Council in its decision 1994/269 of 25 July 1994), required the Special Rapporteur to establish or to continue direct contacts with the Government and the people of Myanmar, including political leaders deprived of their liberty, their families and their lawyers, with a view to examining the situation of human rights in Myanmar and following any progress made towards the transfer of power to a civilian government and the drafting of a new constitution, the lifting of restrictions on personal freedoms and the restoration of human rights in Myanmar. In resolution 1994/85, the Commission urged the Government of Myanmar to extend its full and unreserved cooperation to the Commission and the Special Rapporteur and, to that end, to ensure that the Special Rapporteur had effectively free access to any person in Myanmar whom he might deem it appropriate to meet in the performance of his mandate, including Daw Aung San Suu Kyi; and requested the Special Rapporteur to report to the General Assembly at its forty-ninth session and to the Commission at its fifty-first session.
2. The substantive issues addressed by the Commission on Human Rights in resolution 1994/85 include the following concerns: that the electoral process initiated in Myanmar by the general elections of 27 May 1990 has not yet reached its conclusion and that the Government still has not implemented its commitments to take all the necessary steps towards democracy in the light of those elections; that many political leaders, in particular elected representatives, remain deprived of their liberty and that Daw Aung San Suu Kyi, a Nobel Peace Prize laureate, is still under house arrest; and that serious violations of a variety of fundamental rights continue, inter alia the practice of forced labour, including forced portering and forced displacement of the population. The Commission also expressed its concern about the continuous problems created in neighbouring countries by the exodus of refugees from Myanmar.
3. In addition, the Commission took note of the fact that the Government of Myanmar had acceded to the Geneva Conventions of 12 August 1949; signed a memorandum of understanding on 5 November 1993 with the Office of the United Nations High Commissioner for Refugees (UNHCR) concerning the voluntary and safe repatriation of refugees from Bangladesh; received the Special Rapporteur for a visit to Myanmar; and observed cease-fires and undertaken negotiations with several minority groups.
4. The Special Rapporteur submitted a preliminary report to the General Assembly at its forty-ninth session in October 1994 (A/49/594 and Add 1). The present comprehensive report is submitted to the Commission on Human Rights at its fifty-first session for its consideration.
B. Historical background
5. In 1948, the Union of Myanmar (then called Burma) gained independence from British colonial rule. From 1948 until 1962, the country was governed by a parliamentary democracy based on the Constitution of 2 September 1947. It provided for a federal system of government with separate executive, legislative and judicial branches. The states under the Union were considered autonomous. According to article 201 of the Constitution of 1947, ethnic minorities had, in theory, the right to secede from the Union, but, under article 202, this right was not to be exercised until 10 years from the date of entry into force of the Constitution. In March 1948, an armed insurgency against the then Government of Burma was begun by the Communist Party of Burma. Between 1948 and 1961, various minority ethnic groups joined the armed insurgency.
6. In March 1962, General Ne Win took power in a coup d'état. He installed one-party (the Burma Socialist Programme Party) rule under military control and embarked upon a programme known as the "Burmese Way to Socialism". In 1974, a new constitution was drafted under which one-party rule continued.
7. Towards 1988, nationwide demonstrations began in reaction to the suppression of all civil and political rights since the overthrow of the constitutional Government in 1962 and to the economic failure as a consequence of the policy of the "Burmese Way to Socialism".
8. From March to June 1988, students, workers and monks demonstrated for more freedom and democracy, but the army used harsh measures to crush the demonstrations. Hundreds of civilians were arrested and many suffered severe injuries or died from ill-treatment in detention. Many persons were summarily or arbitrarily executed. On 21 June 1988, the Government imposed a ban on all public gatherings.
9. On 23 July 1988, General Ne Win resigned as party leader and promised economic reform and the holding of a referendum to end one-party rule and institute a multi-party system. However, demonstrations continued and the army and riot police attacked the demonstrators. It was reported that approximately 3,000 persons were killed in August 1988 alone. On 18 September 1988, the military took power and the State Law and Order Restoration Council (SLORC) was set up under the chairmanship of the Chief of Staff, Senior General Saw Maung. The National Assembly (Pyithu Hluttaw), the Council of State and other governmental bodies were dissolved. Free elections were promised by SLORC, but Daw Aung San Suu Kyi, daughter of General U Aung San (the national hero of independence who was assassinated in 1947) and General Secretary of the National League for Democracy (NLD), was banned from campaigning on the grounds that she kept unlawful association with insurgent organizations. On 20 July 1989, Daw Aung San Suu Kyi was detained by government forces. She has been under house arrest without trial since then and, in 1991, she was awarded the Nobel Prize for Peace. Many others, including most of the important opposition political leaders, were also detained.
10. On 27 May 1990, general elections were held in which the main opposition party (NLD) won 81 per cent of the seats (392 seats out of a total 485) and 60 per cent of the vote. However, the official announcement of the results of the elections was postponed by SLORC in order to allow the Election Commission set up by SLORC to scrutinize the expense accounts of all elected representatives.
11. Beginning in early 1992, a mass exodus of Myanmar Muslims from Rakhine State into Bangladesh was reported. At least 250,000 such persons sought refuge for fear of persecution. On 28 April 1992, the Governments of Myanmar and Bangladesh signed an agreement for the voluntary and safe return of the refugees. By October 1993, approximately 40,000 refugees had returned to Myanmar under this arrangement.
12. On 5 November 1993, the United Nations High Commissioner for Refugees (UNHCR) and the Government of Myanmar signed a memorandum of understanding in an effort to ensure the voluntary and safe repatriation of the persons who had left the country. This memorandum of understanding was similar to the one between UNHCR and the Government of Bangladesh signed on 12 May 1993. Both Governments expressed satisfaction at this accord and at the participation of UNHCR. Between September 1992 and the end of September 1994, a total of 75,000 refugees returned to Myanmar. Another 45,000 refugees are expected to return before the end of 1994.
13. In April 1992, General Than Shwe became Chairman of SLORC after General Sa Maung had resigned from the post for reasons of health. Since this change of leadership, a number of new policies have been announced and implemented, including the release of many political leaders in detention (among them the former Prime Minister U Nu, but not Daw Aung San Suu Kyi); the holding of a national convention to draft the principles and guidelines for a new constitution; the granting of permission to the family of Daw Aung San Suu Kyi to visit her; the opening of universities and other institutions of higher education; the lifting of the curfew order and martial law; and cessation of the hearing of civilian cases by military tribunals.
14. On 9 January 1993, the National Convention was convened, composed of 702 delegates in eight categories: (a) representatives of political parties, including NLD (49); (b) representatives elected in the 1990 elections (107); (c) representatives of national racial groups (215); (d) representatives of peasants (93); (e) representatives of workers (48); (f) representatives of the intelligentsia and technocrats (41); (g) representatives of state service personnel (92); and (h) other invited persons (57). The meeting of the National Convention has been adjourned several times for reasons not clear to outside observers.
15. When the National Convention adjourned on 9 April 1994, the Chairman of the National Convention, Chief Justice U Aung Toe, stated that agreement had been reached on the principles for drafting the chapters of the constitution on the State, the state structure and the Head of State. According to these principles, the country would be governed by an executive president and two vice presidents, elected by presidential electoral colleges formed by all members of the two houses of Parliament. The National Convention reconvened on 2 September 1994. The subjects on its current agenda are self-administered divisions and self-administered zones, the legislature, the executive and the judiciary.
16. In July 1994, Daw Aung San Suu Kyi, began her sixth year of house arrest. Earlier in the year, and for the first time since her arrest, she was allowed to meet with persons other than her immediate family. United States Congressman William Richardson met with her twice at her home during his visit to Myanmar from 15 to 17 February. Also present at the meetings were the Resident Representative of the United Nations Development Programme (UNDP) in Myanmar, a representative of the United States Embassy, and a reporter from The New York Times. On 20 September 1994, Daw Aung San Suu Kyi attended another meeting with the Chairman of SLORC, General Than Shwe, and Secretary One, Lieutenant General Khin Nyunt, at a governmental guest-house. The meeting was the result of mediation by Dr. Rewata Dhamma, a Burmese Buddhist monk living in the United Kingdom. During two visits to Myanmar in 1994, Dr. Rewata Dhamma met with Daw Aung San Suu Kyi, whom he has known for many years, and also with members of SLORC. A second meeting between SLORC representatives, Lieutenant General Khin Nyunt, Armed Forces Judge-Advocate, General Brigadier Than Oo and Armed Forces Inspector-General, Brigadier General Tin Aye and Daw Aung San Suu Kyi took place on 28 October 1994 at a governmental guest-house.
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Introduction
17. In carrying out his mandate, the Special Rapporteur has continued to seek information from all relevant sources. During the past year, information in the form of letters and reports has been received on a regular basis from a wide variety of individuals and non-governmental organizations, as well as from the Government of Myanmar. In November 1994, the Special Rapporteur visited Myanmar, conducted interviews with high-level government officials, as well as representatives of various United Nations specialized agencies and bodies, including the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations Development Programme (UNDP) and the United Nations Children's Fund (UNICEF), representatives of various non-governmental organizations and the people of Myanmar both inside the country and outside as he paid visits to places relevant to his mandate.
B. Visit to Myanmar
18. On 10 August 1994, the Special Rapporteur addressed a letter to the Government of Myanmar requesting permission to visit the country from 7 to 16 November 1994 and to have audiences with high governmental officials and meetings in circumstances providing full confidentiality with leaders of political parties, including those in detention or under restriction, in particular Daw Aung San Suu Kyi. The Special Rapporteur also requested full and free access to all individuals and representatives of non-governmental and intergovernmental organizations, whom he might deem it necessary to meet in the carrying out of his mandate or who might have expressed the wish to meet him. He further requested permission to visit prisons and other centres of detention, and to have confidential contact with those detained. In addition, the Special Rapporteur requested that he be granted full access to other areas of the country, in particular the eastern part, for the purpose of carrying out unrestricted and confidential visits with the recent returnees. By letter dated 23 September 1994, the Government replied that the Special Rapporteur would be welcome in Myanmar.
19. The Special Rapporteur visited Myanmar from 7 to 16 November 1994. Prior to the visit, the Special Rapporteur had been in frequent contact with the Permanent Representative of Myanmar to the United Nations Office at Geneva and with the Minister for Foreign Affairs, who cooperated fully and facilitated the visit. During his visit to Myanmar all of the Special Rapporteur's specific requests for meetings with high-level government officials were met. Similarly, visits to Mon, Mandalay and Mengwe States were facilitated with appropriate briefings, meetings and visits in the areas concerned. In general, the Special Rapporteur enjoyed relative freedom of movement and access to private persons and others of interest, with some notable exceptions which will be addressed below. In addition, he was promptly furnished with all the documentary information he requested before, during and after his visit. Consequently, the Special Rapporteur would like to record his deep appreciation to the Government of Myanmar for its cooperation in facilitating his visit to the country and in responding to his requests for information and explanations.
20. In Yangon the Special Rapporteur met with the following governmental representatives: Lieutenant General Khin Nyunt, Secretary One of SLORC; U Ohn Gyaw, Minister for Foreign Affairs; Colonel Kyaw Win, Deputy-Director of the Directorate of Defence Services Intelligence; Brigadier General Myo Thant, Minister of Information; U Tha Tun, Attorney-General; and U Aung Toe, Chief Justice of the Supreme Court. In Mawlamyine, Mon State, the Special Rapporteur met with the Vice-Commandant of South Eastern Command, Col. Mya Nyein; in Mandalay, Mandalay State, with the Commander of Central Command, Major-General Kyaw Than; and in Pakkokhu, Mengwe State, with the Commander of North Western Command, Major-General Hla Myint Swe.
21. In the course of his visit to Myanmar, the Special Rapporteur paid visits to the following governmental institutions and facilities: administrative offices of the Ministry of Home Affairs, Insein and Mandalay prisons; the National Convention premises; Yangon University campus; and Dagon University in the Dagon New Township.
22. The Special Rapporteur also visited and met with representatives of the following national organizations and institutions: the Myanmar Maternal and Child Welfare Association, the Union Solidarity and Development Association, the Myanmar Red Cross Society and representatives of the Department of Law at Yangon University.
23. On 11 November 1994, the Special Rapporteur met with representatives of the following political parties which are participating in the National Convention drafting the new constitution of the Union of Myanmar: the National League for Democracy (NLD); the Union Kayene League; and the National Unity Party (NUP).
24. While the information and views obtained in the course of his visits and meetings will be reflected below under relevant subject headings, the Special Rapporteur draws attention here to the salient aspects of the visits and meetings mentioned above.
1. Meeting with Secretary One
25. On the morning of 14 November 1994, Secretary One of SLORC, Lieutenant General Khin Nyunt, received the Special Rapporteur at the Ministry of Defence. They discussed political, economic and social changes and enjoyed a frank, open and lengthy exchange of views which touched upon issues of concern for the respect of human rights in Myanmar.
26. On the matter of the general political organization of the State, Lieutenant General Khin Nyunt explained that SLORC took power in 1988 to counter anarchy that was prevailing in the country during the riots and to re-establish security for the people and maintain stability in a country that is composed of 135 ethnic groups. Lieutenant General Khin Nyunt said that, to achieve unity in Myanmar, SLORC was managing a process of national reconciliation in which a variety of insurgent groups were now being brought back into the legal framework of discussions and the National Convention was engaged in a process that would lead to the drafting of a new, strong constitution for the country. Lieutenant General Khin Nyunt assured the Special Rapporteur that once the new constitution had been drafted and adopted elections would take place and a civilian government would take power. With regard to the time frame for the transfer of power to a civilian government, Lieutenant General Khin Nyunt stated that it was not yet the moment to specify when a new civilian government would be formed under such a constitution. However, he explained that it was the intention of the Government to complete the process of the National Convention as soon as possible because it was costing half a million kyats a day to manage. He also explained that, before those goals were achieved, two basic conditions would have to be met: (a) political and social stability must be maintained and (b) the "Union" as a multi-ethnic State must be secured so as to avoid a disastrous dissolution of the State. He strongly stressed that the Tatmadaw (the army) had no intention of remaining in political power for ever.
27. Lieutenant General Khin Nyunt described a variety of social and economic development initiatives which had been taken by the Government in managing the process of national reconciliation and restoring law and order since it took power in 1988, in order to improve the lives of the people and help "build nationalism", i.e. the general sentiment of belonging to one's beloved country and building and protecting the nation. In this regard, Lieutenant General Khin Nyunt cited different projects launched by the Government, for example, the construction of roads, bridges and railroads. He said that such projects had been realized all around the country in order to develop all the regions and to reduce the gap between rich and poor and between urban and rural areas. Specifically, the transportation system in the country was being improved and the Government was also attempting to improve agricultural production by building several dams in the country. Regarding these development projects, Lieutenant General Khin Nyunt said that the slanderous stories about forced labour were not true and were only invented by persons who did not want to see Myanmar developed, or by insurgent groups. He stated that the people of Myanmar were of the Buddhist faith and they contributed voluntarily to the development projects, believing that they would be the first to enjoy the results on earth and thereafter. He said that the army was also taking part in those works, together with prisoners, who would have their sentences reduced.
28. On the general subject of human rights, Lieutenant General Khin Nyunt explained that Myanmar had a population of 43 million persons, yet only a few hundred persons were criticizing the situation of human rights in the country and writing and reporting false information.
29. Regarding the reasons for the detention of Daw Aung San Suu Kyi, Lieutenant General Khin Nyunt noted that she was the daughter of the national hero and had only come back into the country in 1988, after several years of absence, in order to see her mother, who was ill. Her absence from the country for a long period had not permitted her to understand the political and social situation, i.e. the chaos instigated by the Communists, which had prevailed in the country in 1988 and, therefore, while she had been getting involved in political affairs, she had not realized that she was being manipulated by "the Communists". Consequently she had accepted leadership of the movement, which had then been unable to control the riots. Concerning the Special Rapporteur's specific questions and his requests to visit her, Lieutenant General Khin Nyunt stated that it was not yet the appropriate moment for a visit. Since the Government was meeting her and holding discussions with her, it did not want any interference in that dialogue, which was being conducted in a "good manner" and based on a "mutual understanding". He hoped that the Special Rapporteur understood the circumstances and all the security, political and administrative concerns that such a decision involved. When asked if the Government intended to release her on 20 July 1995 in conformity with the law, Lieutenant General Khin Nyunt answered that it was still too early to say and that the decision had to be taken by the Council of Ministers and also at the level of SLORC. Secretary One assured the Special Rapporteur that SLORC intended to continue its dialogue with Daw Aung San Suu Kyi in the future.
30. Regarding the venue of the meetings between political leaders and the Special Rapporteur, which were arranged to take place at a government guest-house despite the strong request by the Special Rapporteur to meet with them in private at his office in the United Nations compound in Yangon, Secretary One said that politicians were quite free to go about their business and to travel freely in the country with the permission of the Government. However, they could not be allowed to disturb the peace and tranquillity or bring about disorder. As a government, SLORC had to take into consideration several concerns, i.e. economic and political, including security, concerns. It was in that connection that he justified the arrests of the five opposition activists which occurred between July and October 1994. He added that, in order to understand the human rights situation in the country, the situation had to be seen in the overall framework as explained by him; people were not severely repressed.
31. Regarding collaboration with the International Committee of the Red Cross (ICRC), Secretary One indicated that a memorandum of understanding with ICRC was under active consideration and that a favourable decision was expected in due course.
32. Lieutenant General Khin Nyunt ended the meeting by stating that the Government was attempting to develop the country politically, economically and socially, and that, although there were problems, these would be overcome. It could not allow the country to be destroyed or to disintegrate. It would carry on action, in accordance with the law, against any activity aimed at disunity and destruction of the country.
2. Meeting with the Minister for Foreign Affairs
33. The Minister for Foreign Affairs, U Ohn Gyaw, received the Special Rapporteur on 8 November 1994. During the meeting, various issues relevant to the mandate of the Special Rapporteur were discussed.
34. The Minister for Foreign Affairs outlined the cooperation of the Government of Myanmar with the United Nations and the Special Rapporteur, whose tasks had been facilitated and requests met despite the fact that the Government did not agree with the resolution of the Commission on Human Rights. Regarding the Special Rapporteur's request to meet Daw Aung San Suu Kyi, the Minister replied that the Government of Myanmar could not respond to all the requests made by the various personalities who would like to meet Daw Aung San Suu Kyi; otherwise it would become a "kind of circus". He explained the long process which United States Congressman William Richardson and Dr. Rewata Dhamma, a Burmese Buddhist monk, had followed in order to see her, and added that Daw Aung San Suu Kyi as an individual had also the right to refuse to see people.
35. With respect to the allegations of human rights violations regarding forced portering and forced labour, the Foreign Minister rejected them and said that they were completely false. According to him, local inhabitants, because of their Buddhist faith, were voluntarily cooperating in the various development projects in the country. These citizens did not even ask for money because they would consider it to be an insult.
36. With regard to the National Convention and the drafting of the Constitution, priority must be given to national reconciliation and achieving peaceful relations between all the national races in order to obtain a consensus in the country and secure the Union. When asked by the Special Rapporteur if a copy of the Universal Declaration oft it was impossible to distribute it among 700 delegates, but an English copy was available at the Convention Library.
3. Meeting with the Deputy Director of the Directorate of Defence Services Intelligence
37. On the afternoon of 10 November 1994, the Special Rapporteur met with Col. Kyaw Win, Deputy Director of the Directorate of Defence Services Intelligence. During the meeting, various issues relevant to the mandate of the Special Rapporteur were discussed.
38. Col. Kyaw Win explained to the Special Rapporteur that the principal aim of the current Government was to achieve democracy in the country. He added that that objective could not be achieved without stability in the country. Therefore, priority was being given to national reconciliation and economic development.
39. Regarding political stability, Col. Kyaw Win informed the Special Rapporteur that there were still three "insurgent" groups (the Karen National Union (KNU); a Mon faction; and the Karen National Union Party (KNUPP)) who were not taking part in the work of the National Convention.
40. Regarding economic development, Col. Kyaw Win provided the Special Rapporteur with details of the progress that had been made in that domain, as well as the various development projects which were under way in the country. He added that if the people of Myanmar did not have food, clothes and houses, there would be no human rights in the country.
41. With regard to the allegations of human rights violations regarding forced portering and forced labour, Col. Kyaw Win said that those accusations mainly concerned locations where insurgent groups were fighting against the Myanmar Army. Such false information was provided by the insurgents to destroy the image of the Government.
4. Meeting with the Minister of Information
42. On the afternoon of 11 November 1994, the Special Rapporteur met with Brigadier General Myo Thant, Minister of Information, together with members of the Information Committee over which the Minister presides. The discussion focused on the democratization process and, in particular, the National Convention. The Minister first recounted the process from its very start, explaining how the Preparatory Committee for the National Convention was constituted, specifying the composition of delegations to the National Convention and highlighting the achievements of each meeting of the National Convention, since it began on 7 January 1993 up to recent developments.
43. Regarding the suggestion made last year by the Special Rapporteur that a copy of the Universal Declaration of Human Rights, in the Burmese language, be provided to every National Convention delegate in relation to deliberations on a future constitution, while the Minister accepted the Special Rapporteur's suggestion and received an authentic copy of the Universal Declaration of Human Rights in the English language, together with an unofficial translation in the Burmese language, the Declaration was not circulated to National Convention delegates as agreed. The Minister told the Special Rapporteur that only an English copy was available at the Convention Library.
44. The Minister provided further basic information on the following subjects: (a) the availability of international newspapers and magazines in Yangon; (b) the preparation of the country for the celebration of 1996 as The Year of Tourism (Visit Myanmar Year); (c) the composition of the Government, which was the same as the previous year; (d) the cost and availability of basic commodities; and (e) the remaining number of political leaders in detention or in prison.
5. Meetings with the Attorney-General and the Chief Justice
45. On the morning of 15 November 1994, the Special Rapporteur met with Attorney-General U Tha Tun after having earlier met with Chief Justice Aung Toe. In his discussion with the Chief Justice, the recent trials of political leaders, the National Convention (which the Chief Justice is Chairing) and some issues of legislative reform (for which the Chief Justice is not responsible, but of which he has some knowledge as a Member of the Law Revision Commission formed by the Government) were addressed.
46. The discussion with Attorney-General U Tha Tun revolved around new legislation, such as reform of existing Myanmar legislation, for which the Attorney-General has some responsibility both in his governmental office and as Chairman of the Law Revision Commission.
47. In response to the Special Rapporteur's inquiries about the collaboration between the Government of Myanmar and ICRC, the Attorney-General informed him that the Myanmar authorities were still scrutinizing the draft memorandum of understanding to see if it affected the sovereignty of the country and if it was in accordance with the national laws. The Attorney-General also informed the Special Rapporteur that ICRC was assisting the authorities in their task of spreading knowledge of international humanitarian law within the armed forces. To that end, ICRC had held an introductory three-day course for 27 high-ranking officers of the Myanmar Defence Forces in April 1993. A full five-day course for tactical operations commanders had taken place in Yangon in November 1993. It had been attended by 30 officers. A six-day seminar-workshop for trainers of the Myanmar Defence Forces had been held in early November 1994.
6. Meetings with leaders of political parties
48. On the morning of 11 November 1994, the Special Rapporteur met with representatives of three political parties participating in the National Convention, i.e. the National League for Democracy (NLD), the National Unity Party (NUP) and the Union Kayene League. As last year, and in spite of the strong request by the Special Rapporteur to meet with them in private at his office in the United Nations compound in Yangon, the meetings were arranged to take place at a government guest-house (at 36 Inya Road). The location and atmosphere of the meetings were obviously not conducive to a free and unencumbered exchange of views. In addition, one of the party delegates told the Special Rapporteur that they had been notified to meet with the Special Rapporteur only three hours before the meeting.
49. The Special Rapporteur first met with the two representatives of NLD; Chairman U Aung Shwe and a member of the Central Executive Committee, U Than Tun. They explained that, in the National Convention, three headings of the 16 chapters in the forthcoming new constitution had been agreed upon by November 1994. The NLD delegates told the Special Rapporteur that most of their proposals in the National Convention had not been agreed upon except for a very few parts. In the process, should there be any disagreement which had to be settled through discussion, the position of NLD was never taken into consideration. They were requesting that a clause containing human rights provisions be included in the new constitution and they were hoping that the Government would accept that proposition.
50. The representatives of NLD also informed the Special Rapporteur that the delegates to the National Convention were not permitted to publish or distribute any documents or newsletters. During the sessions, they could read statements which were preapproved by the Chairmen of the group. When the NLD members wished to organize meetings around the country to meet the local population, they had to seek permission from the Government. Permission was generally received, but not for everywhere. For example, in Rakhine State, NLD leaders had wanted to meet with local inhabitants to explain the work they were doing in the National Convention, but the Government had not authorized the gathering. In any case, attendance at the meetings was not allowed to exceed 50 persons. The Chairman of NLD further reported that three years previously he had been told by the Government not to travel outside Yangon without permission from the Local Council. The NLD delegates stated that the situation of freedom of movement, expression and organization had improved a little over previous years, but serious infringements of those basic human rights were still prevalent in the country.
51. The NLD delegates agreed that Myanmar was developing its infrastructure and that cities like Yangon and Mandalay were growing. But that development was not benefiting everyone: the rich were becoming richer, while the poor were suffering more. They reported their concern about the problem of relocation of parts of the population from their homelands to newly constructed townships in order to provide space for new construction. They concluded the discussion on the economy by saying that the economy in Myanmar would grow but the people would suffer a lot and that was why they were asking the United Nations and international non-governmental organizations to help the people of Myanmar, especially the children and women, who had the greatest needs.
52. The NLD delegates informed the Special Rapporteur about their knowledge of the meetings between SLORC and Daw Aung San Suu Kyi through the coverage in the media. They hoped that a result would soon be achieved and mentioned their preoccupation with the fact that, as she was alone, she might not be able to conduct appropriate negotiations with SLORC over a long period.
53. The Special Rapporteur met with two representatives of the National Unity Party (NUP): U Chit Hlai, a member of the Central Executive Committee, and U Tinlatt, a member of the secretariat. The National Unity Party was formed out of the former Burma Socialist Programme Party. They felt that the work at the National Convention was progressing and the major principles for the Constitution had been formulated. The Convention was now in the process of drafting articles on the basis of the principles. There was no deadline for finishing the drafting of the Constitution. NUP had eight delegates in the National Convention (five for the Party and three from the elected representatives) and at every stage during the sessions the delegates had made various proposals. But so far, they had not discussed major issues. For instance, NUP preferred a parliamentary system because Myanmar people were familiar with it from the period of British rule. However, the majority of the delegates at the National Convention had agreed to a presidential system. Therefore, the NUP delegates respected the majority's decision. The Special Rapporteur was also told that there would be provisions regarding human rights in the forthcoming constitution.
54. The NUP delegates informed the Special Rapporteur that NUP was permitted to produce a monthly booklet informing readers about its activities, the National Convention and human rights abuses, and also pamphlets on political education. It could circulate those publications among its members, but not in the National Convention. It could also organize meetings within the country, except in some areas for security reasons.
55. Regarding the meetings between Daw Aung San Suu Kyi and SLORC, the NUP delegates hoped that they would lead to concrete results, but said that they had no position on the process. They thought that Daw Aung San Suu Kyi had had a poor knowledge of the country when she came back in 1988 after several years of absence from Myanmar. They added that, when Daw Aung San Suu Kyi got involved in the political context, she had a biased analysis of the situation because she was misinformed and manipulated. They hoped that the SLORC delegation which was to meet with her would be able to change her mind.
56. The NUP delegates informed the Special Rapporteur that the economic situation was improving, especially in the agricultural sector where production had increased and much progress has been made, particularly in dry areas. They would like to see the same progress in the industrial sector and in trade where much had still to be achieved.
57. The NUP delegates ended the meeting by saying that some of their members had been in government and understood how difficult it was to govern the country, especially after the events which had occurred in 1988.
58. The Special Rapporteur met with two representatives of the Union Kayene League: President U Mah and Joint Secretary U Mahn Tan Maung. The representatives stated that the group, which was composed by Pwo Kayin and Sgaw Kayin, was the only Karen group recognized by SLORC. It had been organized in 1988 and had five delegates who attended freely the meetings held in the context of the National Convention and a membership of approximately 50,000. The representatives of the League said that work at the National Convention was not going as fast as they would like, but that was better than rushing things since there was a unique chance to achieve better understanding among all the groups composing the country.
59. They informed the Special Rapporteur that most of the Karens in Myanmar were poor peasants living in villages. The great majority were Buddhists (85 per cent) and some were Christians (15 per cent). The League had no information about and no connection with the insurgents living at the frontier between Karen State and Thailand.
60. Regarding the economic situation, they informed the Special Rapporteur that the market had changed from a socialist system in which prices had been fixed by the State, to a free-market one. Therefore, prices were going up and people were complaining. They hoped that with free competition there would be some regulation and prices would drop. Otherwise, they agreed that the Government was working hard to improve the situation by launching all sorts of development programmes.
7. Visit to Mandalay jail
61. On the afternoon of 12 November 1994, the Special Rapporteur visited the newly built central jail in Mandalay. He was taken to the central tower of the prison, from where he had a view of land on which new vegetables and flowers had been planted, the pagoda of the prison, the infirmary and the cells.
62. The Special Rapporteur was not allowed to see any of the detainees, nor was he allowed to see the cells. At the time of the prison visit, the prison authorities stated that they were unable to comply with the Special Rapporteur's request to see the detainees and the cells because they required authorization from the higher authorities.
63. The Prison Warden informed the Special Rapporteur that there were 4,715 prison inmates of whom 3,866 were males and 849 were females. The prison has a capacity of 3,000.
64. The severity of the sentences varied from the death sentence to one-day sentences. Sixty-one prisoners (of whom three were women) were serving 20-year sentences and nine prisoners (of whom one was a woman) had been sentenced to the death penalty, but those sentences had been commuted to life imprisonment by a governmental order of November 1992.
65. The Prison Warden told the Special Rapporteur that one or two inmates were kept per cell of approximately 8 square metres having an opening high on one wall. Bamboo mats and potable water were available in the cells. Each inmate was provided with food three times a day and had access to information through books. They were also contributing to several kinds of labour, such as the renovation work of the Mandalay Palace moat.
66. The families had the right to visit the inmates twice a month, in addition to special permissions granted to their lawyers. They were also provided with medical assistance in the prison dispensary, which had 50 beds and where 3 doctors and 15 nurses were working full-time.
67. The Prison Warden informed the Special Rapporteur that a complaints procedure had been established at the prison. One day a week, an officer visited all the cells and recorded the complaints of the inmates. Most of those complaints were not founded and concerned relations between inmates.
9. Visit to Insein Prison
68. On the afternoon of 14 November 1994, the Special Rapporteur visited Insein Prison. The Prison Warden informed the Special Rapporteur that there were 4,696 prison inmates, of whom 868 were women. The prison had a capacity of 5,000. No prisoners were awaiting death because all death sentences had been commuted by an order of November 1992.
69. The Special Rapporteur was given an extensive tour of the grounds, in which vegetables and flowers had been newly planted. He was shown the hospital building, the tower and a kitchen with pots of freshly prepared food. The facilities had been freshly painted.
70. The Special Rapporteur was not allowed to see all the detainees he had requested to meet. These prisoners were detained under section 5 (e) of the 1950 Emergency Provisions Act ("causes or intends to spread false news, knowing beforehand that it is untrue"), under section 5 of the 1923 Official Secrets Act (possession or control of secret official information) or under section 17/1 of the 1908 Unlawful Associations Act (membership or contact with an illegal organization). Several of them belonged to political parties and in this connection the Special Rapporteur wished particularly to see the five NLD opposition activists arrested between July and October 1994, including Khin Zaw Win who was arrested in July 1994.
71. After repeated requests made orally from the first day of his stay in Myanmar concerning detainees he wished to see, and having asked for free access to those and other detainees at Insein Prison, the Special Rapporteur was allowed to meet only three detained political leaders, two of whom he had seen during his last visit in November 1993. In addition to U Tin U, who had a distinguished military career and had been in command of the military and was subsequently Minister of Defence, and Dr. Aung Khin Sint, an NLD member elected in the 1990 elections and a delegate to the National Convention, the Special Rapporteur met a student activist, Myin Ko Naing. The meetings took place in the presence of the Prison Warden; several of the prison guards recorded the interviews and a group of photographers were also present.
72. U Tin U greeted the Special Rapporteur and told him of his appreciation at meeting him again. He was in good health and seemed to speak freely without any fear. He told the Special Rapporteur that inmates had been busy for three days prior to his arrival, painting and cleaning the prison premises.
73. The meeting took place in front of a small shack where he was being kept in isolation. The shack was a separate one-story house with an entrance, sleeping section and a toilet and kitchen facilities behind. At the outset, U Tin U proclaimed that he was a "political prisoner" despite the claim of the authorities that he was an "ordinary criminal". He stated that he had suffered five months of effective house arrest before being brought before a martial court on numerous charges. He said that he had been charged, in particular, with: (a) inciting the entire population for democracy and human rights; (b) corresponding with parliamentarians of the European Community, Japan and the United States of America; and (c) meeting with military personnel and others in groups. Government witnesses had presented testimony at his trial, but he had been denied the right to cross-examine them. After hearing the witnesses, the court had proceeded to sentence him to three years' imprisonment; he assumes that it was preconceived. He had already served three years in prison and had, in fact, already served another year. Instead of being released, he was now serving an additional seven years to which he was sentenced by a second military court on exactly the same charges. He pleaded res judicata, but the judge did not seem to understand what he was saying, and found him guilty again and sentenced him to a second (more severe) term of imprisonment to be served consecutively to the first. U Tin U declared: "I love the army, but I love the people more than the army". He stated that after the 1990 elections many people had been detained for a long time without trial as "ordinary criminals". He had sought their release and remedies. So, he had come to this fate. U Tin U indicated that his treatment was good (he appeared to be physically and mentally healthy). The doctor took good care of him although a shortage of medicines was a problem. His wife came to see him every two weeks. He had access to all the religious books and the New Light of Myanmar, but he received no other information and had no other entertainment.
74. Following the meeting with U Tin U, the Special Rapporteur was taken to another building, adjacent to the house where U Tin U was kept, with a few empty cells; among these cells one was occupied by Dr. Aung Khin Sint.
75. The Special Rapporteur could not enter into the cell where Dr. Aung Khin Sint was kept but he was able to speak with Dr. Aung Khin Sint through the locked grill of the cell door. The Prison Warden and several guards recording the interview were also present, as well as photographers. The interview was very short and the inmate seemed nervous but in good health.
76. Contrary to last year, Dr. Aung Khin Sint addressed the Special Rapporteur in the Burmese and English languages. Dr. Aung Khin Sint had done his medical training in England. He had been sentenced to 20-year imprisonment after being tried in a special court, i.e. not an ordinary court. He had not hired a lawyer. That was his own choice because he wanted to defend himself on his own. After receiving his sentence in 1993, he indicated to the Special Rapporteur during his last visit in November 1993 his intention to appeal through the proper channels. During the Special Rapporteur's latest visit, Dr. Aung Khin Sint informed him that he had not appealed but did not give any specific reason why he had changed his mind. He also told the Special Rapporteur that he was being treated well in the prison and had even received a new tooth in his first week there. In concluding, he repeated that he would like to serve a democratic government from the bottom of his heart.
77. Following the meeting with Dr. Aung Khin Sint, the Special Rapporteur was taken to another building with a few empty cells and one occupied by a young student activist, Myin Ko Naing. The Special Rapporteur could not enter the cell where Myin Ko Naing was kept, but was able to speak with him through the locked grill of the cell door. The Prison Warden and several guards recording the interview were also present, as well as photographers. The interview was very short and the inmate seemed nervous and thin, but in good health. He told the Special Rapporteur that he had been especially transferred to that cell for the meeting. When asked what he needed, Myin Ko Naing told the Special Rapporteur that he was bored, with nothing to do, and that he wished to read religious books.
78. Following the meetings with the political leaders in prison, the Special Rapporteur returned to the reception room where he sought some clarifications regarding the registration of the three inmates he had met. The Prison Warden gave all the information requested, including the bases for their imprisonment, dates, etc. The Special Rapporteur made a special request to the Prison Warden to allow Myin Ko Naing to read religious books in his cell and the Prison Warden promised the Special Rapporteur to take the necessary steps for that purpose.
9. Visit to Mon State
79. On 9 November 1994, the Special Rapporteur visited a construction site of the Ye-Dawei railway project in Mon State, as arranged by the Government of Myanmar and the Vice-Commandant of South Eastern Command, Colonel Mya Nyein. The Special Rapporteur, accompanied by Director-General U Aye Lwin and the Managing Director of Myanmar Railways, U Thaung Lwin, arrived at Kalawtgyi village in Ye Township and met the people who were working on the construction. The construction project of the Ye-Dawei railway section was started in January 1993. The entire section of 100.08 miles will pass through four stations and will include 66 bridges.
80. The Special Rapporteur was told by the local authorities that over 55,000 persons from towns and villages around the railway had already participated voluntarily in the construction project. The local authorities instructed the headmen of the various villages to provide a number of labourers and to assign duties among them. At the beginning of the construction, villagers were used to cut down trees and clear bushes to make way for the rail track. When the route was mostly cleared, villagers began digging ditches, and taking out and piling up the earth to form the embankment for the railway.
81. Workers have been given work by the piece rather than by the day and a given piece of work must be completed in a set period of time. The working hours are from 8 a.m. to 11 a.m. and from 1 p.m. to 4 p.m. Each household/family is normally required to contribute one labourer in one round of duty and each round of duty normally lasts one to two weeks. The authorities told the Special Rapporteur that the workers are each paid 30 kyats for a piece of 1 cubic metre, which means a working day for one or two persons. Wages are paid by the Government to the whole village at the end of its contribution. The workers are not provided with food: they have to take their own food or to pay an amount of 2 kyats per meal. The Special Rapporteur had the opportunity to visit a dispensary built near the construction site to assist workers who suffer minor sickness and require to rest from work. When the sickness of the worker is serious, the authorities release the sick worker from his duty and send him to an appropriate hospital.
10. Visit to Mandalay and Mengwe States
82. On 12 November 1994, the Special Rapporteur met in Mandalay with the Commander of Central Command, Major-General Kyaw Than, and visited the construction site of the Mandalay Palace moat which is being dredged by Tatmadaw soldiers, civilians and prisoners from the Central Jail in Mandalay.
83. Around 200 unchained prisoners were involved in the building of the moat by piling and transporting rocks. They seemed in good health and the local authorities informed the Special Rapporteur about their working conditions. Generally, prisoners as well as soldiers work eight hours a day on a voluntary basis. Once the defined part of the work is accomplished, a wage is distributed among the prisoners who are involved in the labour. Food is provided for free and they are entitled to three meals a day. On the day of the Special Rapporteur's visit, well-wisher families were donating lunch, which looked quite appropriate, to all the prisoners and soldiers working at the moat construction site.
84. On 13 November 1994, the Special Rapporteur travelled to Mengwe State to visit the newly completed Pakokku-Myaing-Myosoe section of the Pakokku-Gangaw-Kalay railway. The Minister for Rail Transportation, U Win Sein, and the Commander of North-West Command Major-General Hla Myint Swe, outlined the benefits that would accrue to the regions surrounding the railway. The Minister attributed the successful completion of the new railway section to "the goodwill and support of the Government and the noble-mindedness and conscientiousness of the local population who contributed voluntary labour for the future of their own region". The ground survey for the construction of the Pakokku-Myaing-Myosoe section of the railway was started on 11 June 1993. After completion of the earth bed on 20 December 1993, the rails were laid, starting on 12 February 1994. The entire section, 34.62 miles long, was completed on 17 October 1994.
85. During the Special Rapporteur's trip, he had the opportunity to speak briefly with people among the large crowds assembling around the railway stations at which the train stopped. Apparently, the local population seemed to enjoy the opening ceremony and was happy to benefit from the new facilities.
11. Visits to the Myanmar Red Cross Society and the Myanmar Maternal and Child Welfare Association
86. On the morning of 8 November 1994, the Special Rapporteur met with the representatives of the Myanmar Maternal and Child Welfare Association at their headquarters and was given an overview of their recent activities. Regarding the problem of AIDS, Dr. Tin Tin Hmun, Chairman of the Association, informed the Special Rapporteur that the Association was currently implementing a programme of education especially addressed to mothers, in order to inform them how to safeguard themselves and their children from infection. For this purpose training courses were being organized for volunteers (students, doctors, young people) who would then travel around the country to reach the population at the grass-roots level.
87. Concerned about the high rate of child mortality, malnutrition and illiteracy, the Association was continuing to develop, with the collaboration of international organizations such as UNICEF and NGOs, activities and services in those areas for mothers, young women and children throughout the country.
88. On the afternoon of 15 November 1994, the Special Rapporteur visited the offices of the Myanmar Red Cross Society (MRCS). The discussion went directly to the problem of AIDS. In response to an inquiry from the Special Rapporteur, the President of MRCS, Dr. Tin U explained that of 7,500 persons tested for HIV infection in Myanmar an estimated 4,000 had tested positive. Persons who had already contracted AIDS were estimated to number around 300; most of them had contracted tuberculosis and were being kept in quarantine in a section of Yangon Hospital.
89. The first cause of HIV infection is drug injection. Seventy per cent of AIDS cases are among injecting drug users. The rapid and extensive spread of infection among new intravenous drug users is linked to high levels of sharing syringes and the lack of effective sterilization between injections. Drugs are injected with a variety of self-made equipment that is often in poor condition and impossible to sterilize. The second cause is transmission through sexual activity.
90. With respect to the specific problem of the Myanmar women who had returned from Thailand diagnosed as being HIV positive the Special Rapporteur was informed that the MRCS was working closely with the Myanmar Council of Churches and a Swiss NGO, the "Association François Xavier Bagnoud", for their rehabilitation. The girls who had returned from Thailand were living together and were being "rehabilitated" by being taught cooking and sewing and other skills in the facility operated under the Department of Social Welfare. Most of the returnees had tested HIV positive. The reason for the high ratio of HIV positive cases among these women, it was explained, was that they were sent back to Myanmar because they were suspected of having been infected.
91. On the subject of the Geneva Conventions, MRCS was cooperating with ICRC in a dissemination project about the ideals and principles of the Red Cross Movement, as well as the basic principles of international humanitarian law. Three three-day courses and seven one-day sessions had been held in the framework of this programme in the Yangon area, and training sessions for Red Cross volunteers had taken place in Myaungmya and Prome as well. To date, according to MRCS, 60 per cent of the programme launched with ICRC in 1993 had been achieved.
13. Visits to university campuses
92. On the morning of 16 November 1994, the Special Rapporteur briefly visited the campus of Yangon University. In contrast to his previous visit in November 1993, the University was open, life on the campus appeared normal and students were casually walking about. During the Special Rapporteur's brief visit, he met with professors from the Department of Law. Professor Tin Aung Aye, Professor of Labour and Constitutional Law, who is also a member of the working committee of the drafting team at the National Convention, discussed topics related to the National Convention, citizenship and human rights. When asked by the Special Rapporteur if the new constitution would contain a chapter relating to human rights, he pointed out that although human rights were important, they should be linked to duties.
93. On the morning of 16 November 1994, the Special Rapporteur also visited briefly Dagon University, which had newly opened buildings in Dagon township. It is a large campus with vast classrooms and auditoriums. The atmosphere on the campus seemed normal. The Special Rapporteur had the opportunity to meet with enthusiastic young students who informed him about their interests in several topics other than politics.
C. Visits to camps in Thailand
94. Following his visit to Myanmar, the Special Rapporteur travelled to the frontier with Thailand in order to meet persons from Myanmar living in camps on the Thai side of the border. The visit to Thailand was conducted between 16 and 20 November 1994. The two camps visited were within driving distance of the Thai city of Mae Sot. It is believed that approximately 60,000 persons who have fled Myanmar are living in similar camps in the border area. During this visit, the Special Rapporteur met a total of 31 newly arrived persons from Myanmar, mostly from Karen State. All the interviewees were able to provide recent information on the situation in Myanmar, especially in the border area. Most of them were in poor physical and psychological condition. The information and views obtained in the course of the visits will be reflected below under relevant subject headings.
II. ALLEGATIONS
A. Extrajudicial, summary or arbitrary execution
95. Numerous communications from non-governmental sources continue to be received by the Special Rapporteur reporting extrajudicial, summary or arbitrary killings of civilians by Myanmar military forces under a variety of circumstances.
96. In the regions of the country with predominantly non-Burman populations and where insurgencies have been taking place, many of the alleged killings are summary executions of civilians who are accused of either being insurgents or collaborating with insurgents. For example, in March 1994, members of the Myanmar military's Western Military Command patrolling the Naf River (Rakhine State) came across some Muslims fishing from a small boat. The soldiers reportedly tried to extort money from the fishermen and, when unsuccessful, tied them up with rope and brought them to Balu Khali village in Maungdaw Township. Eight of the fishermen were reportedly interrogated and tortured over five days; the soldiers charged them with carrying out clandestine operations rather than simply fishing. On 31 March 1994, the fishermen were reportedly executed.
97. Many of the reports from non-governmental sources have described occasions on which soldiers of the Myanmar army have opened fire with light arms against civilians without any evident provocation. Such situations have frequently been reported in the context of attempts by the army to arrest and detain civilians for the purposes of forced portering and other labour; as villagers attempt to avoid being arrested or to escape the approaching troops, soldiers are often reported to open fire. For example, on 11 September 1994, Myanmar Army forces from Division No. 33, Battalion No. 27, reportedly entered Kyaun Sein village. When the villagers ran away because they were afraid to be taken as porters, the Tatmadaw reportedly opened fire on them. One villager was hit by a bullet and died the same evening, while three other men were captured by the soldiers and executed on 12 September 1994.
98. In addition to the reports received by the Special Rapporteur alleging summary or arbitrary executions, he also interviewed persons, during his visit to the refugee camps in Thailand, who claim to be witnesses to such human rights violations.
99. The Special Rapporteur has received testimonies alleging governmental responsibility for a pattern of deaths in custody. In the cases received by the Special Rapporteur of alleged violations of the right to life of persons held in detention in which charges were filed, the detentions were primarily carried out under SLORC orders, in application of the 1950 Emergency Provisions Act, particularly section 5 (J), and article 17 of the 1908 Unlawful Association Act. During his visit to Myanmar, the Special Rapporteur requested the Government of Myanmar to provide information concerning the fate of 25 political leaders and elected representatives, students and monks who had allegedly died while in custody. Prior to his departure from Myanmar, the Government provided the Special Rapporteur with its response to his inquiries; the response of the Government of Myanmar is reproduced in annex I to this report. Concerning the 25 cases raised by the Special Rapporteur, this response may be summarized as follows: the Government denied detention in 7 cases; 4 persons were said to have been released; 3 persons were said to be still serving their terms; 10 persons were said to have been given medical treatment upon falling ill, but to have succumbed to disease nevertheless; and 1 person was said to have committed suicide.
100. Other cases of reported summary or arbitrary executions were described in paragraphs 53 to 55 of the interim report of the Special Rapporteur to the General Assembly at its forty-ninth session (A/49/651 of 8 November 1994). These cases included allegations of: severe torture, causing the death of the victims; the killing of civilians for having disobeyed orders from the Tatmadaw to relocate their homes, to supply goods or provide labour for little or no compensation; arbitrary "revenge" killings of persons from villages near to the locations of attacks carried out by insurgent forces against the Tatmadaw. Collective and arbitrary punishments are often said to include summary executions of civilians present in the area.
101. In response to the request of the Special Rapporteur for information on any investigations into these allegations undertaken by the Government, the Government of Myanmar replied, in a note verbale dated 4 November 1994, as follows:
"No instances of extrajudicial, summary or arbitrary execution can be permitted in the Union of Myanmar and no provision is made in the law for such."
102. The Special Rapporteur is aware that sometimes reports of arbitrary killings tend to be exaggerated or distorted, that there are cases of good treatment of villagers and captured insurgents by the Tatmadaw soldiers, that there is evidence that the Government is trying to discipline those soldiers who have committed serious human rights violations, that instances of such violations appear to be decreasing and that the insurgents also commit serious violations of human rights from time to time. However, the Special Rapporteur cannot deny, in view of so many detailed and seemingly reliable reports, that violations appear to be committed consistently and on a wide scale by the soldiers of the Myanmar Army against innocent villagers (particularly those belonging to ethnic minorities) in the form of summary or extrajudicial executions and arbitrary killings which occur in the contexts of forced labour, rape, forced relocation and confiscation of property.
103. In relation to specific cases, the Special Rapporteur draws attention to the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (E/CN.4/1995/61, paras. 227-230). In this connection, the Special Rapporteur is aware that the Government of Myanmar has recently responded in detail to the allegations transmitted to it by the Special Rapporteur on extrajudicial, summary or arbitrary executions.
B. Arbitrary arrest and detention
104. Although some political prisoners have been released during the last two years from centres of detention in Myanmar, reports from various sources describe how an unknown number of civilians continue to be arrested for criticizing SLORC, the Tatmadaw and the process being undertaken in the National Convention of drafting a new constitution aimed at facilitating the transfer of power to a civilian government. Other persons reportedly arrested in large numbers are suspected insurgents (or sympathizers therewith) who remain detained in prisons in country areas, especially in the regions with predominantly non-Burman populations.
105. The Nobel Prize winner, Daw Aung San Suu Kyi, is still being held under prolonged house detention without trial; on 20 July 1994, she had completed five years in detention. Seeking her release and return to freedom in Myanmar, including respect for all of her civil and political rights under international law, parliamentarians, non-governmental organizations and individuals throughout the world have sent thousands of petitions to the United Nations in the last few months.
106. In a letter dated 5 October 1994, the Special Rapporteur requested the Government of Myanmar to provide specific reasons, including reference to specific legal authority, for keeping Daw Aung San Suu Kyi under house arrest after 20 July 1994, and to indicate precisely when the Government intends to release her.
107. In a note verbale dated 4 November 1994, the Government of Myanmar provided the Special Rapporteur with the following detailed responses to the above inquiries:
"1. (a) ... she [Daw Aung San Suu Kyi] had been influenced by anti-government, opportunistic politicians and insurgent groups in their attempt to seize political power for their own end, at a time when political vacuum developed by the people's genuine desire to forsake the socialist economic system and their yearning for the return to a multi-party democratic system;
"(b) For her own good and for the good of the country she had to be restrained in order to prevent her from promoting the cause of these unsavoury political elements who found their way and got themselves into positions of influence around her to create disunity among the only unified establishment left in this country, the Tatmadaw, which was endeavouring to stabilize the situation created by the political vacuum;
"(c) Despite repeated caution on the part of the authorities, she made seditious speeches inciting the people to acts of violence and to cause division within the armed forces and division between the armed forces and the people.
"2. The specific legal authority for restraining Daw Aung San Suu Kyi is the 1975 Law to Safeguard the State Against the Dangers of Those Desiring to Cause Subversive Acts. Under this law, if there are reasons to believe that any citizen has done or is doing or is about to do any act which infringes the sovereignty and security of the State or public peace and tranquillity, the Council of Ministers is empowered to pass an order, as may be necessary, restricting any fundamental right of such person.
"3. Also, under Section 10 (b) and Section 14 of this 1975 Law to Safeguard the State Against the Dangers of Those Desiring to Cause Subversive Acts, there is the legal basis for the restraint of Daw Aung San Suu Kyi after 20 July 1994. Under this Law the Council of Ministers may pass an order as may be necessary restricting any fundamental right of a citizen if there are reasons to believe that he has committed, or is committing, or is about to commit, any act which infringes the sovereignty and security of the State or public peace and tranquillity. To exercise such power a Central Body, consisting of the Minister for Home Affairs as Chairman, and the Minister for Defence and the Minister for Foreign Affairs as members has been formed.
"4. The Central Body in passing restriction orders for safeguarding the State against dangers has the following powers:
(a) Arresting and detaining a person for a period not exceeding 60 days at a time up to a total of 180 days;
(b) Restraining a person up to one year.
"5. If it becomes necessary to extend the period of detention or restraint, the Central Body may be authorized by the Council of Ministers to detain or restrain a person for a period not exceeding one year at a time up to a total of five years.
"6. In accordance with Section (13) of the Law, the Central Body shall obtain the prior sanction of the Council of Ministers if it is necessary to continue the restraint of the person against whom action is taken for a period longer than contained in Section 10 (b).
"7. In so doing, in accordance with Section (14) of the Law, the Council of Ministers may, in granting prior sanction to continue the detention and arrest or to continue to restrain, permit a period not exceeding one year at a time up to a total of five years.
"8. Hence, the Central Body can restrain a person for one year with its own mandate entrusted by Section 10 (b) of the Law and, with prior sanction of the Council of Ministers, can extend the period of restraint for five years in accordance with Section (14) of the Law.
"9. In view of the foregoing, there is the legal basis for restraining Daw Aung San Suu Kyi after 20 July 1994 based on Section 10 (b) and Section (14) of the 1975 Law to Safeguard the State Against the Dangers of Those Desiring to Cause Subversive Acts."
108. In his letter dated 5 October 1994, the Special Rapporteur also requested the Government of Myanmar to provide information regarding: Khin Zaw Win; U Khin Maung Swe (aged 52 years, a prominent dissident Member of Parliament-elect and member of the Central Executive Committee of the National League for Democracy); U Sein Hla Oo (aged 58 years, a journalist and opposition politician); Dr. Htun Myat Aye (a dentist); Daw San San Tin (a translator); Daw San San Nwe (a writer) and her daughter.
109. n its note verbale dated 4 November 1994, the Government of Myanmar provided the Special Rapporteur with the following general response to the above inquiries:
"In the Union of Myanmar, a person cannot be arrested and detained if it is not in accordance with the law. It is provided in Section 61 of the Code of Criminal Procedure that no police officer shall detain in custody a person for a period exceeding 24 hours. Where it is necessary to detain such an accused for more than 24 hours, special order of a Magistrate has to be obtained under Section 167 of the Code of Criminal Procedure. The arrested person has the right of defence and the right to have legal defence counsel. Moreover, the arrested or detained person has the right to apply freely for bail to the Magistrate concerned and the Court may grant him bail according to the merits of the case."
110. The following are the detailed charges against the persons mentioned in the summary of allegations received by the Special Rapporteur in the note verbale of 4 November 1994 from the Government of Myanmar:
Name, Charge(s)
Khin Zaw Win
"(a) Under Section 17 (a) of the Unlawful Associations Act (1908) for contacting some members of the terrorist groups and providing funds for them. He was sentenced on 6 October 1994 to three years' imprisonment after due process of law;
"(b) Under Section 5 (e) of the Emergency Provisions Act for arranging to write and distribute seditious literature. He was sentenced on 6 October 1994 to seven years' imprisonment after due process of law;
"(c) Under Section 9 (2)/24 (1) of the Foreign Exchange Regulations Act (1947) for trying to smuggle out precious stones and foreign currency. He was sentenced on 6 October 1994 to three years' imprisonment after due process of law.
"... Moreover, Yangon Divisional (Northern District) Court found Dr. Khin Zaw Win guilty of an illegal act under Section 5 (2)/(4) of the Government Official Secret Act (1923) for smuggling out confidential data from the Ministry of Energy of the Government of the Union of Myanmar. Accordingly, he is sentenced on 6 October 1994 to two years' imprisonment with labour.
" Daw San San Nwe
"... guilty of an illegal act and criminal offence under Section 5 (e) of the Emergency Provisions Act and Section 109 of the Code of Criminal Procedure for [her] collaboration with Dr. Khin Zaw Win in writing and distributing false news that could jeopardize the security of the State. Accordingly, they were sentenced on 6 October 1994 to seven years' imprisonment.
"Moreover, Daw San San Nwe was sentenced to three years' imprisonment under Section 17 (1) of the Unlawful Associations Act (1908) on 6 October 1994 by the same Court for contacting some members of the terrorist groups and providing funds for them."
U Khin Maung Swe
"... guilty of an illegal act and criminal offence under Section 5 (e) of the Emergency Provisions Act and Section 109 of the Code of Criminal Procedure for [his] collaboration with Dr. Khin Zaw Win in writing and distributing false news that could jeopardize the security of the State. Accordingly, they were sentenced on 6 October 1994 to seven years' imprisonment."
Dr. Htun Myat Aye
"... has not been detained. As he was aware of the movements of Dr. Khin Zaw Win and his colleagues, he was questioned and then released."
Daw San San Tin
"When legal action was taken against Dr. Khin Zaw Win and his colleagues, [she] was not included."
111. The Government of Myanmar also responded that U Khin Maung Swe, U Sein Hla Oo, Daw San San Nwe and her daughter "had the right of defence and the right to have legal defence counsel for their cases".
112. The Special Rapporteur continues to receive reports indicating that several persons who have reportedly been sentenced may not benefit from the minimum standards of judicial guarantees. Numerous persons are reportedly subjected to lengthy prison terms which constitute disproportional sentences in relation to the offences for which they have been found guilty. Information from reliable sources indicates that there are general problems in the matter of fair trial especially in the sense of free access to defence lawyers, sufficiency of time for careful examination of the cases, and proportionality between offences committed and punishments applied. For example, on 11 January 1994, the Special Court of Yangon West District sentenced to death four persons after they had been found guilty of murdering a student: the judgements were rendered within a few days of the arrest of those accused.
113. With respect to other specific cases, the Special Rapporteur draws attention to the report of the Working Group on Arbitrary Detention (E/CN.4/1995/31, paras. 7-8 and 13-14) and Decision No. 13/1994, adopted by the Working Group on 28 September 1994.
C. Torture and other cruel, inhuman or degrading treatment
114. Numerous allegations, often in considerable detail, have been received from various sources alleging that members of the Myanmar military, intelligence and security services and police continue to torture persons in detention or otherwise subject them to cruel, inhuman or degrading treatment and punishment. Such treatment seems to be routinely employed during the interrogation of persons who have been arbitrarily arrested or held on suspicion of real or perceived anti-government activities. Allegations include subjection to severe beatings, shackling, near suffocation, burning, stabbing, rubbing of salt and chemicals in open wounds and psychological torture, including threats of death. Other reported methods of torture include sexual assault and rape, mostly among women serving as porters.
115. The Special Rapporteur received testimony from reliable sources, corroborated by photographs, indicating that detainees are very often chained and are forced to sleep on cold cement, and that many of them suffer from sickness and serious diseases. The same reliable testimony and photographic evidence indicate that cells are often overcrowded and that prisoners are provided with inadequate hygiene or medical care.
116. In addition to several reports received by the Special Rapporteur alleging widespread torture and other cruel, inhuman and degrading treatment in Myanmar, he has also interviewed persons claiming to be victims or to have witnessed such human rights violations.
117. With respect to specific cases, the Special Rapporteur draws attention to the report of the Special Rapporteur on Torture (E/CN.4/1995/34, paras. 492-500). In this connection, the Special Rapporteur is aware that the Government of Myanmar has responded to the allegations transmitted by the Special Rapporteur on Torture.
D. Freedom of movement
118. During his visit to Myanmar, the Special Rapporteur was pleased to note that several members of intergovernmental and international non-governmental organizations are permitted to travel through the country to implement their programmes directly with the concerned population. Nevertheless, reliable sources informed the Special Rapporteur that forced relocation and internal displacement of persons occurs on a wide scale. People continue to be forcibly relocated, without compensation, to new towns and villages. For example, on 9 July 1994, some 80 persons are said to have been forced to leave Kyein-ta-li village in southern Rakhine State; they were forced to leave on very short notice and were not allowed to bring any property with them. In another example, about 1,500 persons were said to have been forced to leave their homes in Nga-let village in Min-pya township in northern Rakhine State on 13 July 1994; these persons are said to have been rounded up by the military and put on seven boats. In July 1994, in Rakhine State, a Muslim community composed of 250 households was allegedly forced to move from their native village of Ngla, in Minbya township, to Mang Daw township. In a third example, another Muslim community composed of 360 households was reportedly forced to move from their village of Kawalong, Myauk U township, to be relocated in Mang Daw on 4 October 1994.
119. Allegations have also been made that 30 Muslim heads of family were rounded up from villages around Pyapon township in the delta area of the Irrawaddy division and sent to Yangon, where they were detained at the police lock-up in Barr Street. The detained persons are all said to be holders of national identity cards and to be owners of the land that they have worked on for generations. Reports claim that these persons now face deportation or forcible relocation, without compensation, to Rakhine State.
120. Forced relocations and evictions have also been reported by reliable sources in connection with major development projects. According to several non-governmental sources, Myanmar authorities are forcing Muslims to dismantle their cemeteries and religious buildings at six months' notice, to make room for more profitable construction related to tourism. Such acts are claimed to have taken place in, for example, Yangon, Mandalay and Yan-bye township in southern Rakhine State. In Kyauk-ni-maw village tract, Yan-bye township, the local authorities have reportedly ordered six mosques to be dismantled. The reason said to have been given by the authorities for the order is that the trustees of the mosques could not produce any documentation concerning the legality of the buildings. The mosques are several hundred years old.
E. Freedom of expression
121. During his visit to Myanmar the Special Rapporteur was pleased to note that several members of the foreign press, including members of foreign radio and television companies, were allowed entry into Myanmar. Foreign newspapers were also available in some book stores in Yangon, and more than 80 Myanmar magazines, of social and cultural interest, are available to the public. Nevertheless, the Special Rapporteur was also informed that, within Myanmar, the written press, radio and television continue to be subject to governmental censorship, and that the distribution of written material was also subject to governmental restrictions and control. For example, all magazines must be read by a governmental body before their distribution.
122. According to an article entitled "Action taken against destructive elements" which was published in the 23 August 1994 edition of the State-controlled English-language newspaper The New Light of Myanmar (printed on p. 12), the receiving or passing of information or written material from and to foreigners appears to be illegal. By prosecuting persons for such exchanges of information, the Government of Myanmar effectively intimidates its citizens and discourages them from exercising their fundamental rights to freedom of expression.
123. The Special Rapporteur is especially concerned about the fact that during his visit to Myanmar he was unable to meet citizens who wished to contact him, because of their fear of subsequent repercussions. In this connection, the Special Rapporteur notes that one of the charges against Khin Zaw Win, who was arrested in July 1994, was that of having made arrangements to send fabricated news on Myanmar to the Special Rapporteur during his visit to the country in 1992. This allegation was published on 23 August 1994 in the same article of The New Light of Myanmar referred to above, as follows:
"Dr. Khin Zaw Win and group met those who have opposite views on government and the Tatmadaw and made arrangements for sending fabricated news on Myanmar to Professor Yozo Yokota, representative of the United Nations Commission on Human Rights during his visit in December 1992."
The Special Rapporteur was informed during his visit to Myanmar that this particular charge was not considered as a basis for judgment by the court, but the fact that it was widely reported, including by the government newspaper, would have a strong psychological effect on people and cause them to be extremely reticent about contacting him.
F. Labour rights
124. The Special Rapporteur has been informed that workers in Myanmar do not enjoy basic labour rights including, in particular, freedom of association and the right to organize. There is hardly any trade union movement, and workers and trade unionists who criticize the Government would risk interrogation and arrest.
125. The Special Rapporteur received many complaints from several reliable sources that men, women and children from the age of 14 years are allegedly used for forced labour for the construction of railways, roads and bridges. Persons with past records are randomly rounded up by local police or the military in resettlement areas, and in downtown Yangon, along Insein Road and in the small coffee houses. In the countryside, village headmen are responsible for filling forced labour and porter quotas or providing large sums of money to the military instead.
126. The Special Rapporteur received testimonies describing minutely the duties of porters. Porters are required to carry heavy loads of ammunition, food and other supplies between army camps, generally over rugged mountains which are inaccessible by vehicle. They must often construct the camps for the military upon arrival. They are not paid for their work and are allowed only a minimum of food and rest.
127. The Special Rapporteur takes note of the fact that the matter has been raised before appropriate bodies of the International Labour Organisation (ILO). On 7 November 1994, ILO issued document GB.261/13/7 entitled "Report of the Committee set up to consider the representation made by the International Confederation of Free Trade Unions under article 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29)". The Committee has concluded that "the exaction of labour and services, in particular porterage service, under the Village Act and the Towns Act is contrary to the Forced Labour Convention, 1930 (No. 29), ratified by the Government of Myanmar in 1955".
G. Rights of the child
128. The Special Rapporteur is pleased to note that the Government of Myanmar formally withdrew the reservations made by Myanmar upon accession to the Convention on the Rights of the Child in July 1991 with respect to article 15 (regarding freedom of association) and article 37 (regarding the prohibition of torture and other cruel, inhuman or degrading treatment in regard, inter alia, to the treatment of children during interrogation). However, the Special Rapporteur is concerned that there is some evidence of children being forced to serve in the army as soldiers or as porters. This practice, which is reported to remain widespread, would involve a variety of human rights violations, including forced labour, cruel and degrading treatment (if not also torture) and threats to life.
129. Regarding allegations of violations of children's rights, the Special Rapporteur interviewed several witnesses during his visits to the refugee camps in Thailand. He met children of 16 and 17 years of age who claimed that they had been forced to serve in the Myanmar Army two years earlier. Such military service of children is contrary to article 38, paragraphs 2 and 3, of the Convention on the Rights of the Child, to which Myanmar is a party.
H. Treatment of the Muslim population in Rakhine State
130. In early 1992, there was a mass influx of some 250,000 Muslim refugees into Bangladesh from Rakhine State in Myanmar. To address this problem, a joint statement was made by the Governments of Myanmar and Bangladesh, on 23 April 1992, concerning the voluntary repatriation of the refugees. Bangladesh requested the assistance of UNHCR to facilitate the repatriation and memoranda of understanding between UNHCR and the Governments of Bangladesh and Myanmar were signed on 12 May 1993 and 5 November 1993, respectively.
131. In this connection, the Special Rapporteur welcomed the willingness of the Government of Myanmar to cooperate with UNHCR in order to ensure the voluntary and safe return of the Muslim population who had fled to Bangladesh from Rakhine State. Between September 1992 and the end of September 1994, a total of 75,000 refugees had returned to Myanmar and, according to UNHCR, it is anticipated that an additional 45,000 refugees will have returned by the end of 1994. If the aforementioned anticipated return is accomplished as planned, the total number of returnees at the end of 1994 would be 120,000, or approximately half the number who fled.
132. The Special Rapporteur also welcomed the undertaking of the Government of Myanmar to allow the establishment in December 1993 in Rakhine State of a UNHCR permanent field office with international staff. This presence may dissipate the fear of many of the Muslim population of Rakhine State who remain in the camps on the Bangladeshi side of the border. Many of them are said to be fearful of possible ill-treatment by the Myanmar authorities upon return and, therefore, do not wish to come back without some kind of international monitoring.
133. In Myanmar, five reception centres (Taungpyo, Ngakhuya, Pyinphyu, Kanyinchaung and Magyichaung) and one transition centre (in Buthidaung) have been established. Upon arrival at the reception centres, returnee families are issued "family lists" serving as temporary identity documentation until they are provided with a returnee identity card.
134. UNHCR reports that, up to the present, all returnees have been able to move back into their former homes. Most returnees who had access to land prior to their departure for Bangladesh will be able to regain their land after the next harvest. In cases where the returnees are unable to claim their land back, the authorities have committed themselves to finding alternative solutions at the location of the returnees' former residences.
135. UNHCR is playing a key role in helping create conditions in Rakhine State conducive to the return of the refugees and to monitor their wellbeing. The Special Rapporteur is informed that the returnees are free to travel and will be entitled to the same rights as other residents of Myanmar. The governmental authorities are also obliged to inform UNHCR of cases of arrest or detention of returnees and to allow UNHCR officers access to any detained returnee.
I. The National Convention
136. On 9 January 1993, the Government convened a national convention to lay down the basic principles for the elaboration of a new and enduring constitution. Of the 702 delegates from 8 categories of people, 49 are selected by the 10 political parties remaining after the 1990 elections, 106 are elected representatives and the remainder of the delegates from the other 6 categories were chosen by SLORC. Before any real discussion could take place at the National Convention, a broad framework of basic objectives was provided by the Government: (a) non-disintegration of the Union; (b) non-disintegration of national solidarity; (c) consolidation and perpetuity of sovereignty; (d) emergence of a genuine multiparty democratic system; (e) development of eternal principles of justice, liberty and equality in the State; and (f) participation of the Tatmadaw in a leadership role in the national politics of the future.
137. The Special Rapporteur has been informed that each of the eight groups represented were to have a panel of five chairmen who would lead the discussions and that, in the political parties group, only one chairman was from NLD the party that won a majority in the 1990 elections. In the elected representatives group, where 89 of the remaining 106 delegates were from NLD. No NLD representatives were selected as chairmen.
138. During his visit to the National Convention, the Special Rapporteur met with several delegates. He was informed that all the delegates to the National Convention are required to stay in the Convention compound. In the same dormitory, five delegates live together. There is one sergeant clerk in each dormitory serving the delegates. It is reported that these sergeant clerks may also observe the activities of the delegates.
139. Delegates are not totally free to meet with other delegates inside the compound. They are not entitled to leave the compound without authorization. When they leave the compound, delegates are not allowed to take out any written or printed materials. It was also reported to the Special Rapporteur that when the delegates return to their States to see their families they are sometimes harassed by the local authorities. The Special Rapporteur is concerned that such an atmosphere does not permit the delegates to be in touch with the populations they represent, or enable them to take into account their grievances, wishes and points of view and, thus, to represent them meaningfully during the debates which are taking place in the National Convention.
140. The Special Rapporteur was told that the delegates enjoy the freedoms of expression and discussion. However, they cannot distribute discussion papers among themselves: all papers have to be distributed to the chairmen of the groups. The chairmen scrutinize the contents and, if the statements are found to be contradictory with the agreed principles, the relevant parts are deleted. Only then will the papers be read at the group meetings. When the proposed statements are to be read before the plenary meeting, they have to be submitted again for scrutiny by the Work Committee.
141. The reply of the Government in response to a query by the Special Rapporteur with regard to progress made so far in the National Convention on the drafting of a new constitution, and the anticipated schedule for future meetings, is reproduced in the addendum to the interim report of the Special Rapporteur to the General Assembly (A/49/594/Add.1, pp. 13 to 15 of the English version).
J. The movement towards reconciliation with the insurgents
142. The Special Rapporteur has been informed that the Government of Myanmar extended an official invitation to the armed groups to return to the legal fold, to hold talks with the Government and to join hands with the Government in the ongoing national endeavour for the development of border areas and national races. During his meetings in Myanmar, the Government of Myanmar provided the Special Rapporteur with a list of the 13 ethnic and other armed groups which "had returned to the legal fold", i.e. have signed ceasefire agreements with the Government of Myanmar. The list is reproduced in annex II to the present report.
143. In connection with the "return to the legal fold" of various of the former insurgent groups, the Special Rapporteur notes a list supplied to him by the Government of Myanmar which names 77 persons who have been released from imprisonment subsequent to receiving sentences for a variety of politically related offences, including offences under section 17 (1) of the 1908 Unlawful Association Act. This list is reproduced in annex III to the present report.
144. In response to the Government's invitation to "return to the legal fold", it was reported in November 1994 that the leader of the Karen National Union (KNU), the largest armed insurgent group, was ready to discuss a ceasefire with the Government of Myanmar. It is still too early to make any meaningful assessment of developments in this respect. But, from the viewpoint of protection of human rights, such a move towards true national reconciliation should be welcomed because, as stated above, many cases of serious human rights violations are being committed in the context of military operations. For example, Kachine State, where an insurgency was previously taking place during which foreigners were prohibited to visit, has become opened for journalists and tourists as a result of the return of the Kachine Independence Organization (KIO) guerrilla group to the legal fold. During a visit to Kachine State in November 1994, Lieutenant General Khin Nyunt was quoted as saying that peace is now prevailing in Kachine State.
III. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
145. The visit of the Special Rapporteur to the Union of Myanmar at the invitation of the Government was facilitated by the efforts, cooperation and courtesy extended to him by the officials of the Government, in particular Lieutenant General Khin Nyunt, Secretary One of SLORC, and U Ohn Gyaw, Minister for Foreign Affairs. Most of the requests of the Special Rapporteur to meet persons pertinent to his mandate were met, including meetings with the Attorney-General, Chief Justice, Minister of Information, some political leaders in detention and representatives of political parties. However, the Special Rapporteur was disappointed that he was not allowed to meet Daw Aung San Suu Kyi. He also regrets that the meetings with the representatives of political parties were held at a place and in an atmosphere not fully ensuring privacy. However, the Special Rapporteur commends the Government for arranging quite efficiently his visits to Mon State, Mandalay State and Mengwe State, Insein Prison, Mandalay Prison and other places and facilities which he had requested to visit.
146. The Special Rapporteur generally observed in Yangon and Mandalay that there were visible signs of relaxation of tension in the life of the people. There were many consumer goods in market places where many shoppers crowded. Streets and bridges have been constructed or improved. There were many cars on the streets. Indeed, in the centre of Yangon, traffic congestion and parking problems occurred at certain times of the day. However, the Special Rapporteur was informed that this development and construction is benefiting only a few persons. In fact, there were poor people in the cities and, in particular, in the countryside; these persons did not appear to be sharing in any new prosperity, and rather appeared to be suffering from inflationary pressures on basic necessities such as rice and medicines.
147. The Special Rapporteur welcomes the expanding cooperation between the Government of Myanmar and various United Nations organs and with international humanitarian non-governmental organizations.
148. The Special Rapporteur continues to be concerned about the serious restrictions imposed upon people in the enjoyment of civil and political rights. The people do not generally enjoy freedom of thought, opinion, expression, publication and peaceful assembly and association. They seem to be always fearful that anything they or their family members say or do, particularly in the area of politics, could put them at risk of arrest and interrogation by the police or military intelligence. Consequently, most people with whom the Special Rapporteur spoke casually avoided any conversation touching upon political subjects. Several people told him that many persons wished to tell the Special Rapporteur their stories, but were too afraid to come to see him.
149. The persons whose civil and political rights are most severely restricted are the leaders of political parties, particularly the NLD leaders, and delegates to the National Convention, again particularly those from NLD. Because of both visible and invisible pressures, they cannot assemble in a group, cannot freely discuss, and cannot publish or distribute printed materials. In this situation it is difficult to assume that, in the National Convention, open and free exchanges of views and opinions are taking place in order to produce a truly democratic constitution.
150. The Special Rapporteur is pleased to note that the Government of Myanmar has continued to release persons who have been detained for political activities. He also welcomes the Government's decision to allow persons other than members of her immediate family to visit Daw Aung San Suu Kyi, as well as the beginning of a dialogue between her and the Government. He would, however, express concern that there are still hundreds of such persons detained in Myanmar, most notably Daw Aung San Suu Kyi. He also regrets that, in the summer of 1994, five persons were specifically arrested for engaging in political activities and were subsequently sentenced to long prison terms.
151. Government representatives have repeatedly explained to the Special Rapporteur that the Government is willing to transfer power to a civilian government, but that, in order to do so, there must be a strong constitution and that, in order to have a strong constitution, it is doing its best to complete the work of the National Convention. However, the Special Rapporteur cannot help but feel that, given the composition of the delegates (only one out of seven delegates was elected in the 1990 elections), the restrictions imposed upon the delegates (practically no freedom to assemble, to print and distribute leaflets or to make statements freely) and the general guidelines to be strictly followed (including the principle regarding the leading role of the Tatmadaw), the National Convention does not appear to constitute the necessary "steps towards the restoration of democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990" (General Assembly resolution 47/144, para. 4).
152. The Special Rapporteur welcomes the fact that, subsequent to the signing on 5 November 1993 of the Memorandum of Understanding between the Union of Myanmar and UNHCR to facilitate and guarantee the voluntary and safe return of Myanmar residents from Bangladesh, and the subsequent opening of a UNHCR field office in Rakhine State to allow UNHCR international staff to monitor the repatriation of the refugees, tens of thousands of refugees have been successfully repatriated.
153. The Special Rapporteur further welcomes the undertaking of various training programmes for military officers and soldiers with the cooperation of ICRC and the Myanmar Red Cross Society in the area of international humanitarian law.
154. The Special Rapporteur is paying special attention to the recent successes of the government initiative to invite the armed insurgent groups to enter into talks with the Government and he notes, in particular, some initially positive response from the Karen National Union. He is hopeful that the process will move forward in the direction of achieving true reconciliation and peace throughout the country.
B. Recommendations
155. In the light of the foregoing conclusions, the Special Rapporteur submits the following recommendations for the consideration of the Government of Myanmar:
(a) The Government of Myanmar should fulfil in good faith the obligations it has assumed under articles 55 and 56 of the Charter of the United Nations "to take joint and separate action in cooperation with the Organization for the achievement of ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion". In this respect, the Special Rapporteur notes that the Government of Myanmar is in an ideal position to encourage the delegates of the National Convention to include various human rights provisions in the new constitution using, as a reference, the provisions of the Universal Declaration of Human Rights, a copy of which should be circulated to each delegate in the Burmese language;
(b) The Government of Myanmar should consider accession to: the International Covenants on Human Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the two Protocols additional to the Geneva Conventions of 1949;
(c) Myanmar law should be brought into line with accepted international standards regarding protection of physical integrity, including the right to life, protection against disappearance, prohibition of torture and other cruel, inhuman or degrading treatment, providing humane conditions for all persons under detention and insurance of the minimum standards of judicial guarantees;
(d) The Government of Myanmar should take steps to facilitate and guarantee enjoyment of the freedoms of opinion, expression and association, in particular by decriminalizing the expression of oppositional views, relinquishing government control over the media and literary and artistic communities, and permitting the formation of independently organized trade unions;
(e) All political leaders, including elected political representatives, students, workers, peasants and others arrested or detained under martial law after the 1988 and 1990 demonstrations or as a result of the National Convention, should be tried by a properly constituted and independent civilian court in an open and internationally accessible judicial process. If found guilty in such judicial proceedings, they should be given a just sentence; alternatively, they should be immediately released and the Government refrain from all acts of intimidation, threats or reprisals against them or their families. With respect to Daw Aung San Suu Kyi, the Government should release her immediately and unconditionally;
(f) The Government of Myanmar should take the necessary steps to bring the conduct of the military, including ordinary soldiers and officers, into line with accepted international human rights and humanitarian standards so that they do not arbitrarily kill, rape, confiscate property, force persons into acts of labour or porterage, relocate them or otherwise treat persons without respect to their dignity as human beings. When the hiring of local villagers for porterage and other works may be required for governmental purposes, it should be undertaken on a voluntary basis and adequate wages should be paid. The nature of the work should be reasonable and in accordance with established international labour standards. When the relocation of villages is considered necessary for military operations or for development projects, proper consultation with the villagers should take place and appropriate compensation -should be paid for those relocations which may be determined necessary for reasons of the public good;
(g) The Government of Myanmar should take all steps to refrain from recruiting any person who has not attained the age of 15 years into their armed forces, in accordance with article 38.3 of the Convention on the Rights of the Child;
(h) All military and law enforcement personnel, including prison guards, should be thoroughly informed and trained as to their responsibilities, in full accordance with the standards set out in international human rights instruments and humanitarian law. Such standards should be incorporated into Myanmar law and legislation, including the new constitution to be drafted. The training programme undertaken with the cooperation of ICRC is a good start in this direction and should be continued;
(i) Given the magnitude of the abuses, official condemnation should be made by the Government of all acts by authorities involving human rights violations. Such acts, including all acts of intimidation, threat or reprisal, should not benefit from the present system of almost complete denial by, and impunity under, the Government;
(j) The Government of Myanmar should consider the revision of the 1982 Citizenship Law to abolish its burdensome requirements for citizenship. The law should not apply its categories of second class citizenship in a manner which has discriminatory effects on racial or ethnic minorities, particularly the Rakhine Muslim population. It should be brought into line with the principles embodied in the Convention on the Reduction of Statelessness of 30 August 1961;
(k) The Government of Myanmar is encouraged to continue its cooperation with UNHCR in facilitating and ensuring the voluntary and safe return of Rakhine Muslims from Bangladesh;
(l) The Government of Myanmar is also encouraged to continue its cooperation with international non-governmental organizations in facilitating and ensuring the free access of their international staff to ordinary persons in the townships and villages in order to establish contacts and provide assistance to persons who are suffering from a shortage or lack of food, safe water, medicines, medical care and proper education.
Annex 1
RESPONSE OF THE GOVERNMENT OF MYANMAR TO ALLEGATIONS OF EXTRAJUDICIAL EXECUTION WHILE IN CUSTODY, AS RAISED BY THE SPECIAL RAPPORTEUR DURING HIS MEETING WITH COLONEL KYAW WIN OF THE DIRECTORATE OF DEFENCE SERVICE INTELLIGENCE ON 10 NOVEMBER 1994
(Document given to the Special Rapporteur by the Myanmar authorities during his visit to Myanmar) Name (age) Brief case history Remarks
1. Ko Zaw Win Tun: No one by that name was detained or imprisoned.
2. U Aye Lwin: No one by that name was detained or imprisoned.
3. Ko Soe Htay: No one by that name was detained or imprisoned.
4. Ko Nay Win Aung: No one by that name was detained or imprisoned.
5. Ko Aung Moe: No one by that name was detained or imprisoned.
6. U Sein Win (alias U Win Zaw): No one by that name was detained or imprisoned.
7. U Than Win (49 years): Action was not taken against him. He is a representative-elect of the National League for Democracy for Tha Baung 2 Constituency. He is now living in Pathein.
8. U Kyaw Win: Sentenced to 5 years' imprisonment under section 5 (j) of the 1950 Emergency Provisions Act on 20 January 1992 at Myaungmya Prison. He was released on 9 January 1993 and is now living in Pa Let village in Nyaung Don township.
9. U Tha Tun: Sentenced to 5 years' imprisonment on 1 January 1991 under section 5 (j) of the 1950 Emergency Provisions Act at Myaungmya Prison. He was released from prison on 25 November 1992 and is now living in Phoe Nar Ko village, Laputta township.
10. David Hla Myint (35 years): A representative-elect of the National League for Democracy for Ngapudaw 2 Constituency. Sentenced to 6 months' imprisonment on 26 January 1991 under section 6 of the State Flag Law for showing disrespect for the State flag. He was released on 26 June 1991 and is now living in Pathein.
11. Ko Kyaw Soe (21 years): Sentenced to 8 years' imprisonment on 7 June 1991 under section 17 (2) of the 1908 Unlawful Association Act for having been involved in the destruction of the electric transformer at Bamaw. He is still serving his sentence in Mandalay Prison.
12. Hamin: Sentenced to 12 years' imprisonment on 7 June 1991 under section 17 (2) of the 1908 Unlawful Association Act for having been involved in the destruction of the electric transformer at Bamaw. He is still serving his sentence in Mandalay Prison.
13. U Aye Ko (37 years): Sentenced to 6 years' imprisonment under section 5 (j) of the 1950 Emergency Provisions Act on 5 February 1991. He is still serving his prison term at Mandalay Prison.
14. Man Daweit (55 years): Sentenced to 8 years' imprisonment on 27 November 1989 under section 17 (2) of the 1908 Unlawful Association Act for seeking assistance from the KNU insurgents. He was hospitalized on 29 June 1992 at Yangon General Hospital for lung cancer and died on 12 July 1992 from the disease.
15. Mohamed Ilyas (alias Maung Nyo): Detained for having laid explosive mines near the Golf Club at Maung Daw. He was hospitalized at Mungdaw Hospital for severe pains in the stomach. He died on 23 June 1992 due to severe gastritis.
16. Khin Maung Myint (64 years): Sentenced to 10 years' imprisonment on 6 November 1989 under section 5 (j) of the 1950 Emergency Act and section 17 of the 1908 Unlawful Association Act for involvement in the underground movement of the Burma Communist Party. He was hospitalized on 12 August 1991 for tuberculosis and taken to Yangon General Hospital for further treatment. He died on 16 February 1993.
17. Kyaw Myo Thant: Sentenced to 1 year's imprisonment under section 505 (b) of the Penal Code on 7 November 1989 for distributing illegal leaflets. He died on 20 May 1990 because of liver cancer at Maubin General Hospital.
18. Soe Win (72 years): Sentenced to 20 years' imprisonment on 6 November 1989 under section 5 (j) of the 1950 Emergency Act and section 17 of the 1908 Unlawful Association Act for involvement in the underground movement of the Burma Communist Party. He was transferred from the Prison Hospital to Insein General Hospital for severe jaundice, and died on 3 May 1991 at the hospital.
19. Nyo Win (58 years): Action was taken against him on 18 July 1989 under section 19 (a) of the Unlawful Association Act for circulating disinformation and distributing illegal leaflets. He was hospitalized at the Prison Hospital for blood-poisoning and severe jaundice on 1 March 1991 and transferred to Insein General Hospital. He died from the disease on 8 March 1991.
20. Khin Maung (alias Bo Set Yaung): Sentenced on 2 November 1989 to 5 years' imprisonment under section 5 (j) of the 1950 Emergency Act and section 17 of the 1908 Unlawful Association Act for involvement the in underground movement of the Burma Communist Party. He died at Insein Prison Hospital on 7 March 1990 from heart disease.
21. Thaw Ka, (62 years): Sentenced to 20 years' imprisonment on 5 November 1989 under section 5 (a) and (b) of the 1950 Emergency Provisions Act for organizing and exhorting the Tatmadaw personnel from the Navy to dissociate from the combined Armed Forces. He was hospitalized for heart disease on 7 June 1991 and transferred to Yangon General Hospital on 8 June 1991. He died from heart disease on 11 June 1991 at the hospital.
22. Tin Maung Win (51 years): Action was taken against him on 21 November 1990 under sections 121 (1) and 124 of the Penal Code for his involvement in attempting to form a parallel government. He was hospitalized 10 January 1991 for leukaemia and died from the disease on 18 January 1991.
23. Zaw Tika, (60 years): Sentenced to 3 years' imprisonment on 8 February under section 5 (j) of the 1950 Emergency Act and under section 295 of the Penal Code for involvement in a strike organized by the monks. He was hospitalized in the Prison Hospital on 1 September 1992 because of tuberculosis and died of the disease on 18 November 1992 at the Insein Prison Hospital.
24. Maung Ko: A member of the National League for Democracy HQs. Detained for his involvement in attempting to form a parallel government. He committed suicide on 9 November 1990.
Annex II
NATIONAL ARMED GROUPS WHICH HAVE RETURNED TO THE LEGAL FOLD
(Document given to the Special Rapporteur by the Myanmar authorities during his mission to Myanmar)
Name| Place| Leader| Date
Kokang National Group | Lauk kai | U Yan Moe Lyan | 31 March 1989
Wa National Group | Pang Sang | U Kyauk Ni Hlaing and U Bauk Yu Chang | 9 May 1989
Shan State Army (SSA) | Hseng Kiao | U Sai Naung | 24 June 1989
Shan/Ahka National Group | Mong La | U Sai Lin | 30 June 1989
New Democratic Army (Kachin) (NDA) | Pang Wa | U Sakhon Taint Yein | 15 December 1989
Kachin Defence Army (KDA) | Kaung Kha | U Ma Htu Naw | 1 November 1991
Pa-O National Organization (PNO) | Kyauk Ta Loe | U Aung Kham Hti | 18 February 1991
Palaung State Liberation Party (PSLP) | Nam Hsam | U Aik Mong | 21 April 1991
Kayan National Guard (KNG) | Mong Pai | U Kabrial Byan | 27 February 1992
Kachin Independence Organization (KIO) | Liaison Post | U Zaw Mai | 24 February 1992
Kayinni National People's Liberation Front (KNPLF)| Hoya/Biya | U Htun Kyaw |9 May 1994
Kayan New Land Party (KNLP)| Polaung | U Than Soe Naing | 26 July 1994
Shan National People's Liberation Organization (SNPLO)| Naung Htaw | U Tarka Le | 10 September 1994
Annex III
CHART SHOWING PARTICULARS OF THOSE AGAINST WHOM ACTION HAS BEEN TAKEN FOR HAVING CONTACT WITH KNU INSURGENTS AND WHO HAVE BEEN RELEASED BY THE MYANMAR AUTHORITIES DURING 1994
(Document given to the Special Rapporteur by the Myanmar authorities during his mission to Myanmar)
KNU - Kayan National Unity Party
MNLD - Mon National League for Democracy
UND - Union National Democracy Party
Name | Party assignment/occupation | Sentence/legal basis | Prison/date of release
1. U.R.P. Thaung (Son of U Ni Si Taung) KNU (disbanded), Central Executive Committee member (Than Daung 2) 5 years, 30 May 1991, section 5 (j) of the Emergency Provisions Act for selling secret information and the fraudulent act of selling fabricated false reports to foreign embassies. Insein Prison 21 June 1994
2. Nai Ngwe Thein (Son of U Tha Tun Aung) MNLD (disbanded), Vice-Chairman 7 years, 4 November 1992, section 5 (j) of the 1950 Emergency Provisions Act; and 7 years' imprisonment under section 17 of the Printers and Publishers Registration Act; 7 years, section 28 of Printers and Publishers Registration Act. Mawlamyaing Prison 22 August 1994
3. Nai Tun Thein (Son of U Aung Dun) MNLD (disbanded) Chairman (Thanbyu 2)
4. Maung Maung (Son of U Ko Lay) UND (disbanded) Central Executive Committee Member 1 year, 25 February 1993, section 17/20 of the Printers and Publishers Registration Act for printing illegally books concerning the 6 basic principles of the National Convention; 6 months, 27 April 1993 under Section 468 of the Penal Code for failing to pay the debt owed to Daw Ahmar Kyi. Insein Prison 14 December 1993
5. Saw Cha Lay (alias Saw Kyaw Thein) (Son of U Saw Han) Fisherman 3 years, 8 June 1992, section 5 (j) of the Emergency Provision Act for having contact with KNU insurgents. Pathein Prison 8 January 1994
6. Saw Lay Gyi (alias Saw Shwe Pe) (Son of U Tha Hto) Dependent
7. Saw Jean (Son of U Saw Lay Gyi, alias Saw Shwe Pe) Peasant
8. Thabye (alias Pauk Taw) (Son of U Pauk Kyaw) Peasant 3 years, 12 November 1991, section 17 (1) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Maubin Prison 8 January 1994
9. Auspon (Son of U Saw Thein Kyaw) Student (sentenced 28 December 1991)
10. Myint Aung Lay (Son of U Wai Hlaing) Peasant
11. Hla Tun (alias Tha Tu) (Son of U Sein Pale) Fisherman 3 years, 11 December 1991, section 17 (1) of the 1908 Unlawful Association Act for having contact with KNU insurgents.
12. Maung San (Son of U Sein Hlaing) Peasant (sentenced 12 December 1991)
13. Ma Ne Win Myint (Daughter of U Gar Midi) Peasant (sentenced 30 December 1991)
14. Nan Tannie Soe (17 years) Peasant
15. Ma Naw Mu Tu (30 years) (Daughter of U Shwe Kyu) Primary school teacher (sentenced 9 January 1992)
16. Naw Cristina (34 years) (Daughter of U Aung) Principal of primary school
17. Nant Naung Sein (Daughter of U Mya Maung) Peasant (sentenced 27 January 1992)
18. Ma Chaw Bo (Daughter of U Tha Paw) Peasant (sentenced 31 January 1992)
19. Ma Thu (Daughter of U Tha Oo) Peasant
20. Ma Kyi Win (Daughter of U Aung Shwe) Peasant 3 years, 14 February 1992, section 17 (1) of the 1908 Unlawful Association Act for having contact with KNU insurgents.
21. Shwe Soe (Son of U Kyaw Hlaing) Peasant (sentenced 10 April 1992)
22. San Aye (Son of U Ba Kyi) Peasant
23. Aung Maung (Son of U Khway) Peasant
24. Shwe Man (Son of U Tun Myaing) Peasant
25. Toke Kyi (Son of U Shwe Phee) Peasant
26. Thein Win (Son of U Than Kaung) Peasant
27. Kyaw Aye (Son of U Aung Yay) Peasant
28. Kywet Ni (Son of U Tun Phyu) Peasant
29. Pyone Cho (Son of U Toe Si) Peasant
30. Mya Thein (Son of U Shwe Yone) Peasant
31. Ohn Shwe (Son of U Thu Taw) Peasant 3 years, 10 April 1991, section 17 (1) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Maubin Prison 8 January 1994
32. Nant Sein Pwa (alias Phu Salu) Peasant
33. Tha Sein (Son of U Kyar Khin) Peasant (sentenced 9 April 1992)
34. Nant La Pan Peasant (sentenced 27 April 1992)
35. Nant Aye Aye (Daughter of U Man Lan) Peasant
36. Ma Melmon (Daughter of U Saw) Primary School Teacher (sentenced 31 January 1992)
37. Htu Htu Ee (Son of U Takhu Taw) Peasant 13 years, 28 November 1991, section 17 (1) of the 1908 Unlawful Association Act and 123 of the Penal Code for having contact with KNU insurgents. Insein Prison 26 April 1994
38. Saw Than Myaing (alias Po Dwe Hla) (Son of U Po Than) Peasant (sentenced 29 November 1991)
39. Saw Ye Lu Htu (alias Po Htu) (Son of U Tun Kyi) Peasant (sentenced 31 December 1991)
40. Saw Tin Tun (Son of U Aye Maung) Peasant (sentenced 30 October 1991)
41. Saw Kaw Htu (Son of U Aung Htay) Peasant 20 years, 30 October 1991, section 17 (1) and 19 (a) of the 1908 Unlawful Association Act and 122 of the Penal Code for having contact with KNU insurgents. Insein Prison 26 April 1994
42. U Thaung (Son of U Tin Pe) Peasant
43. U Thein Aung (Son of U Charlie) Peasant 20 years, 30 October 1991, section 17 (1), 19 (a) and 2 (1) (a) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Insein Prison 26 April 1994
44. Po Htay (alias Htaw Htu Shar) (Son of U Po Pye) Peasant 5 years, 25 November 1991, section 17 (2) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Insein Prison 26 April 1994
45. Saw Kale Htu (alias Aye Gyi) (Son of U Saw Htu) Peasant Myaungmya Prison 22 April 1994
46. Po Taw (alias El-Kaw Oo) (Son of U Wai Po) Peasant
47. Po Kya Phyu (Son of U Kyaukhe) Peasant
48. Chit Thein (alias Po Thein) (Son of U War Kle) Peasant
49. Shin Hmway Hla (alias Gadoe) (Son of U Yaw Han) Peasant
50. Myo Myint Lay (alias Thet Pyinn) (Son of U Aye Thein) Peasant 5 years, 25 November 1991, section 17 (2) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Myaungmya Prison 22 April 1994
51. Myo Myint Htun (alias Chit Koko) (Son of U Aye Thein) Peasant
52. Waw Flee Thaw (alias Oak-Aul) (Son of U Saw Roh Tha) Peasant
53. Saw Kale Htu (Son of U San Shwe) Peasant
54. Gaung Pyar (alias Aung Win Shwe) (Son of U Po No No) Peasant
55. Po Kin (alias Hla Win) (Son of U Than Sein) Peasant
56. Ta Ma La Wah (Son of U La Pye) Peasant (sentenced 27 November 1991)
57. Saw Say He (Son of U Ei Faw) Peasant (sentenced 25 November 1991)
58. Mu Le (Son of U Klar Pu) Peasant (sentenced 3 June 1992)
59. Lwe Htu (Son of U Klar Pu) Peasant
60. Saw Ta Khu (Son of U Lu Lay) Peasant 5 years, 23 June 1992, section 17 (2) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Myaungmya Prison 22 April 1994
61. Saw Hmway Tha (Son of U Lu Lay) Peasant 3 years, 23 June 1992, section 17 (2) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Myaungmya Prison 22 April 1994
62. Saw Har Ray (Son of U Adu) Peasant 3 years, 5 October 1992, section 17 (1) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Myaungmya Prison 22 April 1994
63. Saw Pe Khu (alias Pine Aye) (Son of U Tun Pe) Peasant (sentenced 21 June 1992)
64. Maung Gyo (alias Shwe Aye) (Son of U Lu Lay) Peasant (sentenced 23 June 1992)
65. Saw Shie Plaw (Son of Htu Saw) Peasant (sentenced 5 October 1992)
66. Saw Say Lay (Son of U Char Lay) Peasant
67. Saw Khay Let (Son of Saw Htu) Peasant
68. Saw El Mu Khu (Son of U Saw Roh) Peasant
69. Saw Htu Htu (Son of U Phre-Say) Peasant
70. Saw Phar Gay (Son of U Man Ko) Peasant
71. Saw Kar Yu (Son of U Ngwe Gaine) Peasant 3 years, 5 October 1992, section 17 (1) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Myaungmya Prison 22 April 1994
72. Saw Lar Phaw (Son of U Kyee Phyu) Peasant
73. Saw Shie Tha (Son of U Seik Sin) Peasant
74. Set Htee Man (Son of U Pu Lay) Peasant (sentenced 11 November 1992)
75. Kyar Htun (Son of U Aung Tin) Peasant
76. Saw Yi Phine Se (alias Ba Lay) (Son of U Saw Nelson) Peasant 20 years, 12 November 1991, section 17 (1) and 19 (a) of the 1908 Unlawful Association Act and section 123 of the Penal Code. Myaungmya Prison 22 April 1994
77. Saw Phar Lar Kho (Son of U Saw Hla Kyaw) Peasant 10 years, 29 August 1994, section 17 (1) and 19 (a) of the 1908 Unlawful Association Act for having contact with KNU insurgents. Insein Prison 13 October 1994
78. U Shwe Boke (son of U Kar Lein) Peasant 3 years, 10 April 1992, section 17 (1) of the 1908 Unlawful Associations Act for having contact with KNU insurgents. Ma U Bin Prison 8 January 1994
*/ Corrigendum E/CN.4/1995/65/Corr.1 issued on 6 February 1995
Paragraph 100
Lines 2 and 3 should read paragraph 9 of the interim report of the Special Rapporteur to the General Assembly at its forty-ninth session (A/49/594 of 28 October 1994).
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UNITED NATIONS
Economic and Social Council
Distr. GENERAL
E/CN.4/1996/65
5 February 1996
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-second session
Item 10 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE TO COLONIAL AND OTHER DEPENDENT COUNTRIES AND TERRITORIES
Report on the situation of human rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1995/72
CONTENTS
Paragraphs
INTRODUCTION 1-18
A. Mandate 1-4
B. Historical background 5-18
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR 19-84
A. Introduction 19
B. Visit to Myanmar 20-83
C. Visits to camps in Thailand 84
II. ALLEGATIONS 85-164
A. Extrajudicial, summary or arbitrary executions 85-92
B. Arbitrary arrest and detention 93-113
C. Torture and other cruel, inhuman or degrading treatment 114-117
D. Freedom of expression and association 118-133
E. Freedom of movement and forced relocation 134-140
F. Labour rights 141-144
G. The National Convention and the process of democratization 145-152
H. The movement toward reconciliation with the insurgents 153-160
I. The treatment of the Muslim population in Rakhine State 161-164
III. CONCLUSIONS AND RECOMMENDATIONS 165-180
A. Conclusions 165-179
B. Recommendations 180
Annexes
(Documents given to the Special Rapporteur by the Myanmar authorities)
I. Extract from the Prisons Act, 1894 (Sect. 40, provision 784) 40
II. Directive No. 125 prohibiting unpaid labour contributions in national developments projects 41
III. Directive No. 82 to stop obtaining labour without compensation from the local people in irrigation projects 42
Introduction
A. Mandate
1. The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar has been described in each of the Special Rapporteur's previous reports to the General Assembly (A/47/651, A/48/578, A/49/594 and A/50/568) and to the Commission on Human Rights (E/CN.4/1993/37, E/CN.4/1994/57 and E/CN.4/1995/65). The mandate, initially articulated in Commission resolution 1992/58 and extended most recently by the Commission in its resolution 1995/72 of 8 March 1995 (approved by the Economic and Social Council in its decision 1995/283 of 25 July 1995), required the Special Rapporteur to establish or to continue direct contacts with the Government and the people of Myanmar, including political leaders deprived of their liberty, their families and their lawyers, with a view to examining the situation of human rights in Myanmar and following any progress made towards the transfer of power to a civilian government and the drafting of a new constitution, the lifting of restrictions on personal freedoms and the restoration of human rights in Myanmar. In resolution 1995/72, the Commission urged the Government of Myanmar to extend its full and unreserved cooperation to the Commission and the Special Rapporteur and, to that end, to ensure that the Special Rapporteur had effectively free access to any person in Myanmar whom he might deem it appropriate to meet in the performance of his mandate, including Daw Aung San Suu Kyi; requested the Secretary-General to give all necessary assistance to the Special Rapporteur; and requested the Special Rapporteur to report to the General Assembly at its fiftieth session and to the Commission at its fifty-second session.
2. The substantive issues addressed by the Commission on Human Rights in resolution 1995/72 included the following concerns: that the electoral process initiated in Myanmar by the general elections of 27 May 1990 had not yet reached its conclusion and that the Government still had not implemented its commitments to take all the necessary steps towards democracy in the light of those elections; that many political leaders, in particular elected representatives, remained deprived of their liberty; that Daw Aung San Suu Kyi, Nobel Peace Prize laureate, was still under house arrest; that there had been a recent offensive against the Karen National Union, Burmese student activists and other groups of the political opposition which resulted in an exodus of refugees into Thailand. The Commission also expressed its grave concern that serious violations of a variety of fundamental rights continued, inter alia the practice of forced labour, including forced portering, and forced displacement of the population.
3. In addition, the Commission took note of the fact that the Government of Myanmar had acceded to the Geneva Conventions of 12 August 1949; withdrawn reservations it had entered concerning the Convention on the Rights of the Child; freed a certain number of political prisoners, in response to the concerns repeatedly expressed by the international community; received the Special Rapporteur for a visit to Myanmar; and observed cease-fire agreements with ethnic groups.
4. The Special Rapporteur submitted a preliminary report to the General Assembly at its fiftieth session in October 1995 (A/50/568). The present comprehensive report is submitted to the Commission on Human Rights at its fifty-second session for its consideration.
B. Historical background
5. In 1948, the Union of Myanmar (then called Burma) gained independence from British colonial rule. From 1948 until 1962, the country was governed by a parliamentary democracy based on the Constitution of 2 September 1947. It provided for a federal system of government with separate executive, legislative and judicial branches. The States under the Union were considered autonomous. According to article 201 of the Constitution of 1947, ethnic minorities had, in theory, the right to secede from the Union, but, under article 202, this right was not to be exercised until 10 years from the date of entry into force of the Constitution. In March 1948, an armed insurgency against the then Government of Burma was begun by the Communist Party of Burma. Between 1948 and 1961, various minority ethnic groups joined the armed insurgency.
6. In March 1962, General Ne Win took power in a coup d'‚tat. He installed one-party (the Burma Socialist Programme Party) rule under military control. He embarked upon a programme known as the "Burmese Way to Socialism". In 1974, a new Constitution was drafted under which one-party rule continued.
7. Towards 1988, nationwide demonstrations began in reaction to the suppression of all civil and political rights since the overthrow of the constitutional government in 1962 and to the economic failure as a consequence of the policy of the Burmese Way to Socialism.
8. From March to June 1988, students, workers and monks demonstrated for more freedom and democracy, but the army used harsh measures to crush the demonstrations. Hundreds of civilians were arrested and many suffered severe injuries or died from ill-treatment in detention. Many persons were summarily or arbitrarily executed. On 21 June 1988, the Government imposed a ban on all public gatherings.
9. On 23 July 1988, General Ne Win resigned as party leader and promised economic reform and the holding of a referendum to end one-party rule and institute a multi-party system. However, demonstrations continued and the Army and riot police attacked the demonstrators. It was reported that approximately 3,000 persons were killed in August 1988 alone. On 18 September 1988, the military took power and the State Law and Order Restoration Council (SLORC) was set up under the chairmanship of the Chief of Staff, Senior General Saw Maung. The National Assembly (Pyithu Hluttaw), the Council of State and other governmental bodies were dissolved. Free elections were promised by SLORC but Daw Aung San Suu Kyi, daughter of General Aung San (the national hero of independence who was assassinated in 1947) and General Secretary of the National League for Democracy (NLD), was banned from campaigning on the grounds that she kept unlawful association with insurgent organizations. On 20 July 1989, Daw Aung San Suu Kyi was detained by government forces. She was kept under house arrest without trial and, in 1991, she was awarded the Nobel Prize for Peace. Many others, including most of the important opposition political leaders, were also detained.
10. On 27 May 1990, general elections were held in which the main opposition party (NLD) won 81 per cent of the seats (392 seats out of 485 in total) and 60 per cent of the votes. However, the official announcement of the results of the elections was postponed by SLORC in order to allow the Election Commission set up by SLORC to scrutinize the expense accounts of all elected representatives.
11. Beginning in early 1992, a mass exodus of Myanmar Muslims from Rakhine State into Bangladesh was reported. At least 250,000 such persons sought refuge for fear of persecution. On 28 April 1992, the Governments of Myanmar and Bangladesh signed an agreement for the voluntary and safe return of the refugees. By October 1993, approximately 40,000 refugees had returned to Myanmar under this arrangement.
12. On 5 November 1993, the Office of the United Nations High Commissioner for Refugees (UNHCR) and the Government of Myanmar signed a memorandum of understanding in an effort to ensure the voluntary and safe repatriation of the persons who had left the country for Bangladesh. This memorandum of understanding was similar to the one between UNHCR and the Government of Bangladesh signed on 12 May 1993. Both Governments expressed satisfaction at this accord and the participation of UNHCR, since it was the responsibility of the country of refuge to assure the voluntariness of repatriation, while it was the responsibility of Myanmar to assure safety upon return. From September 1992 to the end of October 1995, a total of more than 190,000 refugees out of approximately 250,000 have returned to Myanmar.
13. In April 1992, General Than Shwe became Chairman of SLORC after General Saw Maung had resigned from the post for reasons of health. Since this change of leadership, a number of new policies had been announced and implemented, including: the release of many political leaders in detention (including the former Prime Minister U Nu, but not Daw Aung San Suu Kyi); the holding of a national convention for drafting the principles and guidelines for a new constitution; the granting of permission to the family of Daw Aung San Suu Kyi to visit her; the opening of universities and other institutions of higher education; the lifting of the curfew order and martial law; and the cessation of military tribunals for civilian cases.
14. On 9 January 1993, the National Convention was convened. The participants were composed of 702 delegates from eight categories, as follows: (a) representatives of political parties, including NLD (49); (b) representatives elected in the 1990 elections (107); (c) representatives of national racial groups (215); (d) representatives of peasants (93); (e) representatives of workers (48); (f) representatives of the intelligentsia and technocrats (41); (g) representatives of State service personnel (92); and (h) other invited persons (57). The meeting of the National Convention has been adjourned several times for reasons not quite clear to outside observers.
15. On 15 March 1995, the Government of Myanmar released two prominent NLD leaders, namely U Kyi Maung and U Tin Oo.
16. When the National Convention adjourned on 8 April 1995, the Chairman of the National Convention and Chief Justice U Aung Toe stated that agreement had been reached on laying down principles for the designation of self-administered divisions and self-administered zones under the chapter of the constitution entitled "State structure".
17. On 10 July 1995, after six years of house arrest, the Government of Myanmar announced that restrictions on Daw Aung San Suu Kyi had been lifted and that she had been released without conditions.
18. On 28 November 1995, the Government of Myanmar reconvened the National Convention. The subjects on its current agenda are: the legislature; the executive and the judiciary branch. Like the previous sessions, the plenary opening session was attended by, among others, five NDL delegates included in the political parties delegates group, and 81 elected NLD representatives included in the elected representatives group. Following the opening address delivered by Lt.Gen. Myo Nyunt, Chairman of the National Convention Convening Commission, the representatives and delegates of NLD decided to withdraw from the Convention and to boycott its current session. The NLD leaders said that its delegates would only attend the Convention again if the military authorities began a dialogue with party leaders. After the withdrawal of the members of NLD, which, despite winning 80 per cent of the seats in the 1990 general elections had been allocated only 15 per cent of the 702 delegates, the Chairman of the Convention invited the remaining delegates to continue their work in accordance with the original arrangements.
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Introduction
19. As regards his efforts to fulfil the mandate entrusted to him by Commission resolution 1995/72, the Special Rapporteur would have to report that the restrictive measures taken by the United Nations Secretariat in New York, as a result of the financial crisis, have created great difficulties to him and seriously impeded his activities. In particular, the Special Rapporteur would like to record his disappointment as to the fact that his travel to Myanmar was authorized with only 24 hours' notice and that no interpreter was assigned to him to enable him to carry out this very important mission efficiently and effectively. This is contrary to paragraph 24 of the Commission's resolution, which specifically "requests the Secretary-General to give all necessary assistance to the Special Rapporteur".
B. Visit to Myanmar
20. On 4 September 1995, the Special Rapporteur addressed a letter to the Government of Myanmar requesting permission to visit the country from 8 to 17 October 1995. On 28 September 1995, in a letter from the Permanent Representative of Myanmar to the United Nations Office at Geneva, the Special Rapporteur was informed that the proposed dates for his visit had been tentatively agreed to. On 29 September 1995, the Special Rapporteur addressed another letter to the Government of Myanmar, in which he requested audiences with high governmental officials and meetings in circumstances providing full confidentiality with leaders of political parties, including those in detention or under restriction. The Special Rapporteur also requested full and free access to all individuals, representatives of non-governmental and intergovernmental organizations, whom he might deem it necessary to meet in carrying out his mandate or who might have expressed the wish to meet him. He further requested permission to visit prisons and other centres of detention, with confidential and unrestricted access to those detained. In addition, the Special Rapporteur requested that he be granted full access to other areas of the country, in particular Shan and Kachin States, for the purpose of visiting some development or construction sites, specifically the Mong Kwan electric power plant where many forced labourers are reported to be working and Myitkyiana-Sumprabom Road or Myitkyana-Shibwe Lawkhaungng Road.
21. The Special Rapporteur visited Myanmar from 8 to 17 October 1995. Prior to the visit, he had been in frequent contact with the Permanent Representative of Myanmar to the United Nations Office at Geneva and with the Minister for Foreign Affairs, who cooperated fully and facilitated the visit. During his visit to Myanmar all of the Special Rapporteur's specific requests for meetings with high-level government officials were met. Similarly, visits to Shan and Kachin States were facilitated with appropriate briefings, meetings and visits. During this visit, the Special Rapporteur enjoyed freedom of movement and freedom of access to private persons and others of interest, with some notable exceptions which will be addressed below. The Special Rapporteur would like to record his deep appreciation to the Government of Myanmar for its cooperation in facilitating his visit to the country and in responding to his requests for information and explanation.
22. In Yangon, the Special Rapporteur met with the following governmental representatives: Lieutenant-General Khin Nyunt, Secretary One of SLORC; U Nyunt Swe, Deputy Minister for Foreign Affairs; Lieutenant-General Mya Thinn, Minister for Home Affairs; Brigadier-General D.O. Abel, Minister for National Planning and Economic Development; Major-General Aye Kyaw, Minister for Information; U Tha Tun, the Attorney-General; and U Aung Toe, Chief Justice of the Supreme Court.
23. In the course of his visit to Myanmar, the Special Rapporteur paid visits to the following governmental institutions and facilities: Insein and Myitkyina prisons.
24. The Special Rapporteur met with representatives of the following political parties which are participating in the National Convention drafting the new constitution of the Union of Myanmar: the National League for Democracy (NLD); the Union Kayene League; and the National Unity Party (NUP).
25. While the information and views obtained in the course of his visits and meetings will be reflected below under relevant subject headings, the Special Rapporteur draws attention here to the salient aspects of the visits and meetings mentioned above.
1. Meeting with Secretary One
26. On the morning of 16 October 1995, Secretary One of SLORC, Lt.Gen. Khin Nyunt, received the Special Rapporteur at the Ministry of Defence. They discussed political, economic and social changes and enjoyed a frank, open and lengthy exchange of views which touched upon issues of concern for the respect of human rights and the restoration of democracy in Myanmar.
27. Lt.Gen. Khin Nyunt described a variety of political, social and economic development initiatives which had been taken by the Government since it took power in 1988 in order to achieve political stability, economic progress and improvement of social conditions.
28. On the matter of the general political organization of the State, Lt.Gen. Khin Nyunt explained that the stability of the State was the most basic requirement for the development of the Union of Myanmar. National reconsolidation, therefore, was an indispensable component of the Government's policy to achieve peace and political stability. Success was being achieved in that task with the unprecedented return to "the legal fold" of 15 out of 16 ethnic armed groups.
29. In the economic sector, Lt.Gen. Khin Nyunt described to the Special Rapporteur a variety of initiatives which had been taken by the Government in order to improve the life of the people, to develop all the regions and to reduce the gaps between the rich and the poor and between urban and rural areas. In this regard, Lt.Gen. Khin Nyunt cited the implementation of a variety of projects launched by the Government, i.e. the construction of roads, bridges, railroads, hydropower stations and reservoirs. Special efforts were being made for the development of the border areas where more than US$ 400,000 had already been spent by SLORC on projects aimed at enhancing the infrastructure of those regions and improving the standard of living of the population concerned. The Government was taking several measures to increase agricultural production, investing in projects for greening arid districts and extending irrigation networks including those storing rainwater and pumped water for use when needed. Altogether 52 dams had been built in the time of SLORC and several other projects were being carried out.
30. In connection with these development projects, Lt.Gen. Khin Nyunt said that the slanderous stories about forced labour were not true and were only invented by unscrupulous persons who did not want to see Myanmar develop under the present Government, or by insurgent groups. He stated that the people of Myanmar were of the Buddhist faith and were willing to contribute voluntarily to the development projects, believing that they would be the first ones to enjoy the results on Earth and thereafter.
31. With regard to the social sector, progress was being sought to strengthen political stability and economic progress, which was paving the way for the emergence of a peaceful, prosperous and modern State. The Government was endeavouring to preserve the national character and cultural heritage and raise the standard of education and health of the entire population.
32. On the general subject of human rights, Lt.Gen. Khin Nyunt explained that the character of the Myanmar people, their notions and way of life had been formed and shaped by Buddhist teachings which were in harmony with the international human rights standards and prohibited killings, torture and violence in general.
33. Concerning the Special Rapporteur's specific questions about the lack of freedom of expression and restrictions with regard to the distribution of pamphlets by political parties, Lt.Gen. Khin Nyunt stated that for the moment such activities would affect negatively the stability and peace which were prevailing in the country. He added that it was not the appropriate moment for the country to open up to democracy. The main priority was to avoid "chaos". Accordingly, the Government was trying first to educate people to behave in conformity with democratic principles. He added that a democratic system could only be established in an atmosphere of peace, tranquillity and prosperity, rather than under anarchy, disintegration of the nation and disorder.
34. Regarding the arrest of several students during the funeral of former Prime Minister U Nu and of three political leaders in mid-June 1995, Secretary One said that politicians were quite free to go about their business and to travel freely in the country with the permission of the Government. However, they could not be allowed to disturb the peace and tranquillity or bring about disorder. Otherwise, conditions in the country would deteriorate and, consequently, the majority of the population would suffer. As a responsible Government, SLORC had to take into consideration economic and political, including security, concerns. It was in that connection that he justified the arrests of the three opposition activists and the students. Responding to the Special Rapporteur's specific request to meet with them in Insein Prison, Secretary One replied that it was difficult to respond positively because the detainees would provide him with false and negative opinion of the country since legal action had been taken against them.
35. Secretary One assured the Special Rapporteur that SLORC had direct contact with Daw Aung San Suu Kyi, but the Government had so many important tasks to achieve in terms of economic and social development that for the moment it was not a priority to resume its dialogue with her.
36. With regard to possible visits by the International Committee of the Red Cross (ICRC) to places of detention in Myanmar, Secretary One imputed the failing of the negotiations to the "harsh and rude" attitude of the ICRC chief of delegation. He added that the Government had already intimated to ICRC that it should continue the ongoing dialogue in that regard as they were collaborating in many other instances.
37. With regard to the postponement of the National Convention, Secretary One told the Special Rapporteur that there was no political reason behind that decision. He explained that many of the delegates of the respective delegate groups were inclined to attend to their business, especially agricultural matters, as well as charities at a time when the rainy season was ending. Therefore, they had expressed their wish that the National Convention should be reconvened later. Taking into consideration the wishes of many of the National Convention delegates, the National Convention Convening Commission had designated 28 November 1995 as the date for reconvening the National Convention, to enable all the delegates to attend.
38. Lt.Gen. Khin Nyunt ended the meeting by stating that the Government was attempting to develop the country politically, economically and socially and that, although there were problems, they would be overcome. It could not allow the country to be destroyed or to disintegrate and it would not accept any pressure, either from the inside or from other countries. It would carry on action, in accordance with the law, against any activity aimed at disunity and destruction of the country.
2. Meetings with the Attorney-General and the Chief Justice
39. On the morning of 10 October 1995, the Special Rapporteur met with Attorney-General U Tha Tun after having earlier met with Chief Justice U Aung Toe.
40. His discussion with the Chief Justice focused on the National Convention (which the Chief Justice is chairing). The Minister recounted the process from its very start, explaining how the Preparatory Committee for the National Convention had been constituted, specifying the composition of delegates to the National Convention and highlighting the achievements of each meeting of the National Convention, since it began on 7 January 1993 up to the recent developments. With regard to the time-frame for the drafting of the Constitution, the Minister stressed that priority must be given to national reconciliation and achieving peaceful relations between all the national races in order to obtain a consensus in the country and secure union. When asked by the Special Rapporteur why no copy of the Universal Declaration of Human Rights, in the Burmese language, had been provided to every National Convention delegate as he had recommended, the Minister said that it was impossible to distribute it among 700 delegates, but an English copy was available at the Convention library. With regard to the postponement of the National Convention, the Minister of Justice told the Special Rapporteur that there was no political reason behind that decision. He explained that many of the delegates, because of the harvest season and owing to religious activities, had expressed the desire to reconvene the National Convention at a later date. Taking into consideration the wishes of the delegates, the National Convention Convening Commission had designated 28 November 1995 as the date for reconvening the National Convention, to enable all the delegates to attend.
41. The discussion with Attorney-General U Tha Tun revolved around new legislation, such as reform of existing Myanmar legislation, for which the Attorney-General has responsibility both in his governmental office and as Chairman of the Law Revision Commission. In response to the Special Rapporteur's inquiries about the Government's intention to consider accession to the International Covenants on Human Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Attorney-General explained that the role of his office was mainly technical and advisory and that it therefore had no authority for such political decisions.
42. In response to the Special Rapporteur's inquiries about the collaboration between the Government of Myanmar and ICRC, the Attorney-General informed the Special Rapporteur that his office had scrutinized the draft memorandum of understanding and made some amendments in order to bring them into conformity with the national laws. The ICRC standard requirements for visits to places of detention and to have private meetings with the prisoners had been rejected because they were contrary to Myanmar law, specifically provision 784, section 40 of the Prisons Act, which stipulated that "every interview with a convicted prisoner shall take place in the presence of a jail officer ... who shall be so placed to be able to see and to hear what passes". (See annex I).
3. Meeting with the Minister of Information
43. On the morning of 11 October 1995, the Special Rapporteur met with Major-General Aye Kyaw, Minister of Information, together with members of the Information Committee over which the Minister presides. The Minister provided information on the availability of national and international publications in Myanmar. Nevertheless, responding to a question regarding freedom of expression and whether any independent publication existed in Myanmar, the Special Rapporteur was informed that within Myanmar the written press, radio and television were subjected to governmental control and scrutiny. The Minister added that the conditions to permit a liberalization of the media were not met for the moment and no decision had been taken in that regard.
44. Responding to the suggestion made by the Special Rapporteur to disseminate publications referring to international human rights standards, Maj.Gen. Aye Kyaw explained that most of the human rights provisions were contained in Buddhist publications. Therefore, there was no need to have a specific publication referring to the human rights standards.
4. Meeting with the Minister for National Planning and Economic Development
45. On the morning of 11 October 1995, the Special Rapporteur met with Brigadier General D.O. Abel, Minister of National Planning and Economic Development. He explained about the Myanmar economy, economic projects and accomplishments, investment laws, procedures and potential, and rules and regulations amended in conformity with the market oriented economy. Confident of continued economic growth, Brigadier General Abel said that special efforts were being made to promote development of the agriculture sector to provide enough food for the nation and to increase exports. Farmers were being encouraged to cultivate double crop paddy to multiply their income and contribute towards raising their living standards.
46. With respect to the allegations of human rights violations regarding forced labour, the Minister of National Planning and Economic Development denied the existence of such a practice and said that the allegations were completely false and that such a practice would be a nonsense in economic terms. He explained that local inhabitants were voluntarily contributing during their spare time to community projects which would bring direct benefit, such as building a road, bridge, school, dispensary or monastery.
5. Meeting with the Minister for Home Affairs
47. On the morning of 16 October 1995, the Special Rapporteur met with Lt.Gen. Mya Thinn, Minister for Home Affairs.
48. Responding to the Special Rapporteur's specific request to receive information on whether any civil servant or police officer had been tried or sentenced, dismissed from duty or sanctioned for their part in any verified violation of human rights, Lt.Gen. Mya Thinn told the Special Rapporteur that he was not in possession of any information of such a nature and explained the rules and regulations to be followed by the Special Investigation Department in the event of any violations. Each case of violation would be transferred to the relevant Ministry and would be tried by an appropriate court. In the case of serious offences, such as murder or rape, the case might be transferred to an ordinary court to assure impartiality.
49. On the particular question of forced labour, the Special Rapporteur told Lt.Gen. Mya Thinn that, while in Myanmar, he had been informed about the existence of a "secret directive" aimed at discouraging the practice of forced labour without payment, and he requested an official copy of the document. The Minister did not deny the existence of such a directive and promised to give him a copy before his departure from the country, although such a matter was considered "classified". The Special Rapporteur would like to note that, before leaving the country, he was indeed provided with a copy of both directives. They are reproduced in annex II to the present report.
50. Regarding the status of Muslim refugees who had returned from Bangladesh to Myanmar, the Minister for Home Affairs informed the Special Rapporteur that the Government had agreed to grant returnees over 18 years of age an identity document called "temporary identification card". He added that those identity documents would not change the status of the persons concerned. Lt.Gen. Mya Thinn recalled that the Muslim population of Rakhine State were not recognized as citizens of Myanmar under the existing naturalization regulations and they were not even registered as so-called foreign residents. Consequently, the Minister added, their status situation did not permit them to travel within the country.
6. Meeting with Daw Aung San Suu Kyi and NLD leaders
51. During his stay in Yangon, the Special Rapporteur met twice with Daw Aung San Suu Kyi, on 10 and 16 October 1995. U Aung Shwe, U Tin Oo, U Kyi Maung and other representatives of NLD were also present during both meetings. They discussed the political, economic and social situation in Myanmar and enjoyed an open and lengthy exchange of views which touched upon issues of concern for the respect of human rights and the restoration of democracy in Myanmar.
52. During these meetings, the Special Rapporteur was informed about the new composition of the Executive Committee of the National League for Democracy which was now constituted as follows: U Aung Shwe as Chairman; U Kyi Maung and U Tin Oo as Deputy Chairmen, Daw Aung San Suu Kyi as General-Secretary and U Lwin as Secretary.
53. The NLD representatives explained how the civil and political rights of NLD leaders/members were severely restricted. Because of both visible and invisible pressures, they could not assemble in a group, could not have free discussion and could not publish or distribute printed materials.
54. The NLD delegates reported their concern about the problem of the relocation of parts of the population from their homelands to newly constructed townships in order to provide space for the building of new towns or construction projects such as hotels.
55. With regard to the National Convention, the NLD representatives expressed their concern about the current process of drafting the Constitution, which did not permit an open and free exchange of views and opinions and, therefore, could not produce a truly democratic Constitution.
56. The NLD representatives informed the Special Rapporteur about the economic development which was taking place in Myanmar. They said that the economic growth was not benefiting everyone. They expressed their concern about inflation in Myanmar, which had averaged around 30 per cent per annum in recent years. Prices for basic consumer goods such as rice had risen and the majority of local people could not keep up with them. They concluded the discussion on the economy by saying that the rich, who were only a tiny portion of the population, were becoming richer, while the poor who represented the majority, were suffering more.
57. The NLD representatives told the Special Rapporteur that they were not satisfied with the delay, due to SLORC, in initiating the beginning of a dialogue. They added that only a genuine and constructive dialogue would lead to peace, in order to pave the way for democracy and a sustainable economic development.
7. Meetings with leaders of political parties
58. On the morning of 10 October 1995, the Special Rapporteur met with representatives of three political parties participating in the National Convention, the National League for Democracy (NLD), the National Unity Party (NUP) and the Union Kayene League. As last year, and in spite of the strong request by the Special Rapporteur to meet with them in private at his office in the United Nations compound in Yangon, the meetings were arranged to take place at a Government Guest House (36 Inya Road). The location and atmosphere of the meetings were obviously not conducive to a free and unencumbered exchange of views.
59. The Special Rapporteur first met with the Chairman of NLD, U Aung Shwe. The NLD delegate stated that the situation of freedom of movement, expression and organization had improved little from previous years, and serious infringements of those basic human rights were still prevalent in the country. He informed the Special Rapporteur that, as of 1995, the delegates to the National Convention were not permitted to publish or distribute any documents or newsletters. When the NLD members wished to organize meetings through the country to meet the local population, they had to seek permission from the Government. The Chairman of NLD further reported that he was still not allowed to travel outside Yangon without permission from the Local Council.
60. The Special Rapporteur met with two representatives of the National Unity Party (NUP): U Sein Win, Central Executive Committee member, and a member of the Secretariat. The National Unity Party was formed out of the former Burma Socialist Programme Party. Although there was no deadline to achieve the drafting of the Constitution, they felt that the work at the National Convention was progressing and the major substantive principles to be included in the Constitution had already been formulated. The NUP preferred a parliamentary system rather than a presidential system. However, they respected the majority decision of the delegates to agree upon a presidential system.
61. The NUP delegates informed the Special Rapporteur that their party was permitted to produce a bi-weekly pamphlet informing readers about their activities, and also pamphlets on political education. It could circulate those publications among its members, but not in the National Convention. It could also organize meetings within the country, except in some areas for security reasons.
62. With regard to the NUP position pertaining to the recent release from house arrest of Daw Aung San Suu Kyi, U Sein Win informed the Special Rapporteur that she was considered just as a citizen of the country.
63. The Special Rapporteur met with two representatives of the Union Kayene League: President U Mah and a joint secretary. The representatives stated that the group, which was composed of two subgroups, the Pwo Kayin and Sgaw Kayin, was the only Karen group recognized by SLORC. The League's membership was said to be approximately 50,000. It had five delegates attending the meetings held in the context of the National Convention. The representatives of the League welcomed the release of Daw Aung San Suu Kyi as a positive step.
64. They informed the Special Rapporteur that most Karen in Myanmar were poor peasants living in villages. The great majority were Buddhists (80 per cent) and some were Christians (15 per cent). As a group they had no information about the fights which had occurred in Karen State at the beginning of 1995 and no connection with the insurgents living at the frontier between Karen State and Thailand.
8. Visit to Myitkyina Jail
65. On the afternoon of 13 October 1995, the Special Rapporteur visited Myitkyina Jail. He was not allowed to see any of the detainees, nor was he allowed to see the cells. At the time of the prison visit, the prison authorities stated that they were unable to comply with the Special Rapporteur's request to see the detainees and the cells because they required permission from the higher authorities.
66. The Prison Director, U Sein Wein, informed the Special Rapporteur that there were 369 prison inmates, of whom 307 were males and 62 were females. The prison had a capacity of 300.
67. The length of the sentences of the inmates varied from one day to 10 years. Four prisoners (of whom one was a woman) were serving the maximum 10 years' sentence. The majority of the prisoners had been convicted under common law charges and for drug offences.
68. The Prison Warden told the Special Rapporteur that inmates were kept in cells having an opening high on one wall. Bamboo mats and potable water were available in the cells. Each inmate was provided with food three times a day and had access to information through newspapers and magazines. Contributions to labour, such as cleaning the prison facilities, were undertaken on a voluntary basis.
69. The inmates had the right to receive visits from their families twice a month. In addition, special permissions were granted to their lawyers to visit them.
70. The Prison Director informed the Special Rapporteur that 33 staff members were working in the prison. Inmates were provided with medical assistance in the prison dispensary and twice a week a medical doctor visited the prisoners. One day per week, an officer visited all the cells and recorded the complaints of the inmates, if any.
9. Visit to Insein Prison
71. On the morning of 12 October 1995, the Special Rapporteur visited Insein Prison. The Director-General of Insein Prison, U Kyaw Than, welcomed the Special Rapporteur and told him that he was not allowed to see any of the detainees.
72. The Special Rapporteur had made a request in writing on the first day of his stay in Myanmar as to the detainees he wished to see and had asked for free access to those and other detainees in Insein Prison. Despite repeated requests made orally during his meetings with government officials, the prison authorities stated that they were unable to comply with the Special Rapporteur's request to see the detainees and the cells because they required authorization from the higher authorities.
73. The Prison Warden informed the Special Rapporteur that he was only authorized to show him such facilities as the hospital building, the kitchen and the garden. The Special Rapporteur declined the invitation and requested, once again, at the time of the prison visit, the Director-General to contact the Minister for Home Affairs to obtain authorization to meet with the detainees. While waiting for a reply, the Special Rapporteur remained in the reception room and sought some clarifications regarding the organization of the prison.
74. Among the prisoners that the Special Rapporteur requested to see were those detained under section 5 (j) of the 1950 Emergency Provisions Act for having collected and distributed anti-government seditious pamphlets or for having created disturbances. Some of them belonged to political parties (U Tun Shwe, U Thu Wai and U Htwe Myint) and several others were students arrested during U Nu's funeral. In addition, the Special Rapporteur requested to see Myin Ko Naing with whom he had met during his last visit, and Ma Thida. According to the prison authorities, all of the detainees the Special Rapporteur requested to see were in Insein Prison and in good health. When asked if these detainees were kept in solitary confinement, the Prison Warden told the Special Rapporteur that he could not remember their present situation in the prison.
75. The Director-General informed the Special Rapporteur that Insein Prison had a capacity of 5,000. At the moment of his visit, he was told that there were 3,107 prison inmates, of whom 391 were females. Thirty-nine prisoners were facing the death penalty, but their sentence would not be carried out because all death sentences had been commuted to life imprisonment by a governmental order of November 1992.
76. The Prison Warden told the Special Rapporteur that each inmate was provided with food three times a day and had access to potable water. Family members had the right to visit the inmates twice a month and were permitted to bring additional food to their relatives.
77. A prison medical doctor informed the Special Rapporteur that a team of one doctor and four nursing staff were taking care of the health of the prisoners. When an emergency case or serious illness arose, arrangements were made for the patients to receive the necessary treatment at general or specialized hospitals. With respect to the specific problem of AIDS, the prison medical doctor informed the Special Rapporteur that he was aware of a few cases of inmates who were HIV positive. Those inmates were kept among the other detainees without any specific precautions. He added that owing to the lack of appropriate equipment for HIV diagnosis, no systematic screenings were conducted among the prisoners. In response to an inquiry from the Special Rapporteur, the Director-General stated that there was no drug problem in Insein Prison.
10. Visits to Myitkyina in Kachin State and Kyainge Tong in Shan State
78. Prior to his departure for Myanmar, in a letter addressed to the Government on Myanmar, the Special Rapporteur requested to visit the Mong Kwan electric power plant in Shan State and Myitkyina-Sumprabom Road or Myitkyina-Shibwe Lawkhaungng Road in Kachin State.
79. Once in Myanmar, the Special Rapporteur was told that, owing to weather conditions and difficulties of access, he could not visit the construction site of the Myitkyina-Sumprabom Road or Myitkyina-Shibwe Lawkhaungng Road. Instead, on 14 October 1995, he was taken to the construction site of the "Ayeyarwady Bridge". The bridge will link Sitapu and Mine Nar in order to connect the city of Myitkyina with the other side of the river. According to the managing director of the project, 250 workers were involved in the project. All of them were labourers from lower Myanmar and were paid 3,000 kyats per month. They were provided by the Government with free accommodation and rice.
80. Given the absence of a United Nations interpreter, the Special Rapporteur could not interview the group of workers who were at that time digging a hole and taking out the earth manually with basic instruments.
81. On 15 October 1995, the Special Rapporteur travelled to Kyainge Tong in Shan State. Instead of the Mong Kwan electric power plant, the Special Rapporteur was taken to visit the Nam Wop hydroelectric project, a small hydroelectric station located 10 miles south of Kyainge Tong. The project started in January 1992 and was completed in July 1994. According to the managing director of the project, inhabitants of surrounding villages were involved in the construction of the site. They were paid 20 kyats per day and were provided with food. In response to an inquiry from the Special Rapporteur, the managing director stated that none of the workers was forced to work on the project. He added that some farmers preferred to leave because that was economically more attractive to them.
82. On 16 October 1995, the Special Rapporteur had the opportunity to visit, in Kyainge Tong, a nursery school, a boarding school for the orphans of victims of insurrection along the border and a technical school for young women. All these institutions were initiated by the Ministry for the Progress of the Border Areas and National Races and Development Affairs in order to carry out a comprehensive integrated socio-economic development programme in the border areas.
83. The Special Rapporteur wishes to note that while in Myitkyina and Kyainge Tong, he generally observed that there were visible signs of relaxation of tension in the life of the people. There were many consumer goods in market places where many shoppers crowded.
C. Visits to camps in Thailand
84. Following his visit to Myanmar, the Special Rapporteur travelled to the Thai side of the frontier in order to meet with persons from Myanmar living in camps which skirt the Myanmar-Thai border. The visit to Thailand was conducted between 17 and 20 October 1995. The two camps visited were in driving distance from Mae Hong Son and Mae Sariang respectively. It is believed that approximately 80,000 persons who have fled Myanmar are living in similar camps in the border area. During the above-mentioned visit, the Special Rapporteur met with a total of 35 newly arrived persons from Myanmar, mostly Karen, Karenni and Shan. All interviewees were able to provide recent information on the situation in Myanmar, especially in the border area. Most interviewees were in poor physical and psychological condition. The information and views obtained in the course of his visits will be reflected below under relevant subject headings.
II. ALLEGATIONS
A. Extrajudicial, summary or arbitrary executions
85. As noted in his interim report to the General Assembly at its fiftieth session (A/50/651), the Special Rapporteur did not this year receive information of an explicit or systematic government policy encouraging summary killings.
86. However, there continued to be credible reports of instances of brutality, sometimes resulting in the killing of civilians, by Myanmar military forces under a variety of circumstances. This is often the case in the border areas where ethnic insurgencies have been taking place. Many of those allegedly killed were civilians who were accused either of being insurgents or of collaborating with insurgents.
87. Other reports from non-governmental sources have described cases of civilians who were allegedly executed when they resisted becoming porters for the Army or were beaten to death while being used as porters. The Army is also reported to have executed civilians for failure to provide goods or services demanded. These would include labour, food, money or arms.
88. In addition to the reports received by the Special Rapporteur alleging summary or arbitrary executions, he himself interviewed persons, during his visit to the refugee camps in Thailand, who claimed that either members of their families had been killed or severely injured as a consequence of attacks by the Myanmar Army, or that they had themselves been victims of such human rights violations.
89. Some cases of reported summary or arbitrary executions were described in paragraphs 3 to 5 of the interim report of the Special Rapporteur to the General Assembly at its fiftieth session (A/50/568 of 16 October 1995). These cases included allegations of: severe torture causing the death of the victims; the killing of civilians for having disobeyed orders from the Army (Tatmadaw) to relocate their homes, to supply goods or provide labour for little or no compensation; arbitrary "revenge" killings of persons from villages near to the locations of attacks carried out by insurgent forces against the Tatmadaw. Collective and arbitrary punishments are often said to include summary executions of civilians present in the area.
90. In response to the request of the Special Rapporteur to be provided with information describing any investigations undertaken by the Government into these allegations, the Government of Myanmar replied as follows:
"No instances of extrajudicial, summary or arbitrary execution can be permitted in the Union of Myanmar and no provision is made in the law for such."
91. Although the Special Rapporteur is aware that sometimes reports of arbitrary killings tend to be exaggerated or distorted, that there are cases of good treatment of villagers and captured insurgents by the Tatmadaw soldiers, that instances of such violations appear to be decreasing and that the insurgents also commit serious violations of human rights, he cannot deny, in view of so many detailed and prima facie reliable reports, that violations appear to be committed consistently by the soldiers of the Myanmar Army against innocent villagers (particularly those belonging to ethnic minorities) in the form of summary or extrajudicial executions and arbitrary killings, which often occur in the course of forced labour, rape, forced relocation and confiscation of property.
92. In relation to some specific cases, the Special Rapporteur draws attention to the report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (E/CN.4/1996/4). In this connection, the Special Rapporteur is aware that the Government of Myanmar has recently responded in detail to most of the allegations transmitted by the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.
B. Arbitrary arrest and detention
93. As stated in his interim report to the General Assembly at its fiftieth session (A/50/551), the Special Rapporteur noted with satisfaction the release in 1995 of some detainees, among whom were pre-eminent NLD leaders. Dr. Aung Khin Sint and Tin Moe were among a group of 23 prisoners freed on 24 February 1995 from Insein Prison. The Special Rapporteur welcomed the release, on 15 March 1995, from various centres of detention of Myanmar of 31 detainees, including U Kyi Maung and U Tin Oo. U Tin Oo, a retired general and one of the founders of the NLD was arrested on 20 July 1989; the Special Rapporteur met him twice in Insein Prison in 1993 and 1994. U Kyi Maung, a retired colonel, was the Chairman of the NLD during the 1990 elections. He was arrested in September 1990 for allegedly passing on material to foreigners. The Special Rapporteur also welcomed with great satisfaction the announcement, made on 10 July 1995, that restrictions on Daw Aung San Suu Kyi were being lifted by the Government of Myanmar and that she had been released without conditions.
94. However, despite the reported release of over 2,000 political detainees since April 1992, hundreds of other political prisoners are still serving long jail terms and other citizens continue to be arrested for the peaceful expression of their opinions and ideas.
95. In February 1995, nine young activists, namely, Aung Zeya, Tin Than Oo, Nyunt Myaing, Moe Maung Maung, Maung Maung Oo, Moe Myat Thu, Moe Kalayar Oo, Cho Nwe Oo and Aye Aye Moe, were arrested for having reportedly chanted slogans during U Nu's funeral. By letter dated 5 September 1995, the Special Rapporteur requested the Government of Myanmar to provide information regarding their present situation. In its note verbale dated 4 October 1995, the Government provided the Special Rapporteur with the following response to the above inquiry:
"Action is being taken against them under section 5 (j) of the 1950 Emergency Provisions Act for having created disturbances at the funeral with the aim of disrupting it and for having instigated the people to unrest. There should exist no anxiety or fear of torture or ill-treatment in detention as such practices are strictly prohibited in the Prison Manual and the Police Act, and the authorities concerned scrupulously follow the regulations laid down."
96. In mid-June 1995, three political party leaders, namely U Thu Wai and U Htwe Myint (respectively former Chairman and Vice-Chairman of the now defunct Democracy Party) and U Tun Shwe, were also arrested for having allegedly met with foreign residents. Responding to the Special Rapporteur's inquiry about their situation, the Government of Myanmar provided, in its note verbale dated 4 October 1995, the following response:
"U Tun Shwe, U Thu Wai and U Htwe Myint were charged under section 5 (j) of the Emergency Provisions Act for collecting and distributing anti-government seditious pamphlets, and were sentenced to seven years' imprisonment on 3 July 1995 after due process of law. Action was taken against these individuals not because of their contacts with resident foreigners as alleged, but because they transgressed existing laws."
97. On 27 September 1995, Ye Htut, a 27-year-old student, was arrested in Yangon for having allegedly sent "incriminating documents" about Myanmar to dissident Burmese groups based outside the country.
98. On 18 November 1995, among the crowd which gathered that day to listen to Daw Aung San Suu Kyi's speech, the Special Rapporteur has been informed that three NLD members, namely, Toe Aung, Maung Aye and Myo Zoe, were arrested for having allegedly intervened with the police who were erecting barricades in front of her house. According to the information received, the three persons were charged with assaulting a police officer and were reportedly sentenced to two years' imprisonment.
99. Most recently, on 16 December 1995, U Sein Hla Aung, a 45-year-old NLD member was reportedly arrested near his home in Mandalay for having distributed videos of the weekend gatherings which have been taking place regularly outside Aung San Suu Kyi's home since her release in July 1995.
Due process of law
100. In its note verbale dated 4 October 1995, the Government of Myanmar provided the Special Rapporteur with the following general response to his enquiry with regard to due process of law during and after trials in Myanmar.
"In the Union of Myanmar, a person cannot be arrested and detained if it is not in accordance with the law. It is provided in section 61 of the Code of Criminal Procedure that no police officer shall detain in custody a person for a period exceeding 24 hours. Where it is necessary to detain such an accused for more than 24 hours, special order of a magistrate has to be obtained under section 167 of the Code of Criminal Procedure. The arrested person has the right of defence and the right to have legal defence counsel. Moreover, the arrested or detained person has the right to apply freely for bail to the magistrate concerned and the court may grant him bail according to the merits of the case."
101. In spite of the Government's position with regard to certain cases, and based on information received from several independent reliable sources, the Special Rapporteur considers that the notion of "due process of law" as defined particularly in terms of articles 10 and 11 of the Universal Declaration of Human Rights is generally not respected in Myanmar. On the contrary, information and testimony received reveal a consistent, if not routine, failure to respect due process. Numerous testimonies alleged the absence of counsel during trial, the absence of time and support to prepare a defence and all other such attendant guarantees. In addition, there is no proportionality between offences committed and punishments applied, particularly in political cases where sentences of 7 to 20 years have been given for what could be described as peaceful political activity, such as the distribution of leaflets, criticism of the Government and appeal for democratic process in the National Convention deliberations.
102. The following are some examples. According to reliable sources, the Special Rapporteur was informed that in June 1995, subsequent to the arrests of U Tun Shwe, U Thu Wai and U Htwe Myint, their families did not know where they had been taken. Later they were reportedly sent from the Military Intelligence Interrogation Centre to Insein Prison. On 3 July 1995, all of them were taken to Bahan Township court and summarily sentenced to seven years' imprisonment. It was further reported that lawyers were not allowed to contact the defendants for consultation, nor were defence lawyers present at the trial. Only after they had been sentenced were the three men told that they might appeal if they wished. But even for this purpose they have not been allowed to meet their lawyers. They could only sign statements to the effect that their lawyers might act for them.
103. With regard to the three NLD leaders arrested on 18 November 1995 in front of Daw Aung San Suu Kyi's house, the Special Rapporteur was informed that only 48 hours passed between their arrest and their sentencing. Although the Special Rapporteur has no details of the trial proceedings, it would appear that the accused could not possibly mount an effective defence with regard to the legal and factual basis for their arrest and incarceration in such a short time.
104. In the regions of the country with a predominantly non-Burman population, reports from various reliable sources continue to describe how an unknown number of civilians have been arrested as suspected insurgents (or sympathizers therewith) and how they remain detained in the countryside jails. It is reported that the few prisoners who gained access to defence counsel had to rely on "defenders" who were inadequately-trained government officials. In some areas, civilians were often summarily tried for minor offences, as well as for robbery, rape or murder, while military personnel who committed the same crimes were rarely punished.
105. The following are the detailed charges against 15 Members of Parliament mentioned in the summary of allegations received by the Special Rapporteur from the Government of Myanmar in its note verbale of 4 October 1995.
Name, Charge(s)
U Ohn Kyaing "Sentenced to seven years' imprisonment on 17 October 1990 for sending a letter defying the authority of the Government; Sentenced to 10 years' imprisonment on 15 May 1991 for co-authorship of a seditious paper entitled 'Three ways to attain power'."
U Tin Htut (Einme-1) "Sentenced to seven years' imprisonment on 15 May 1991 for co-authorship of a seditious paper entitled 'Three Ways to Attain Power'."
U Win Hlaing U Naing Naing U Mya Win U Hla Tun "Sentenced to 10 years' imprisonment on 30 April 1991 for their involvement in organizing a meeting for setting up an illegal parallel Government."
U Tin Aung Aung U Zaw Myint Aung U Zaw Myint U Hla Than "Sentenced to 25 years' imprisonment on 30 April 1991 for their involvement in organizing a meeting for setting up an illegal parallel Government."
Dr. Myint Aung "No person by the name of Dr. Myint Aung has been detained."
U Tin Soe "Sentenced to two years' imprisonment and was fined 300 kyats on 25 August 1993 for criminal trespass into U Khin Htay's premises at No. 107, Myanma Gon Ye Street, Mingala Taung Nyunt Township in October 1992. In the course of a squabble between them over the sale of an apartment, U Tin Soe used abusive language and took photographs without the latter's express consent. U Khin Maung Htay reported the incident to the Mingala Taung Nyunt Police Station, whereby U Tin Soe was charged by the police under sections 447, 294 and 506 with criminal trespass. The Court found him guilty of the charge. Released from detention on 9 March 1995 upon completion of his sentence."
U San Win "Sentenced to 11 years' imprisonment on 23 August 1991 for misappropriation of teakwood which was to be supplied to the Thanlyin bridge project."
U Khin Maung Swe U Sein Hla Oo "Sentenced to seven years' imprisonment on 6 October 1991 for their collaboration with Dr. Khin Zaw Win in writing and distributing false news that would jeopardize the security of the State."
Prison conditions and the treatment of prisoners
106. This year, unlike his two last visits, despite his repeated requests, the Special Rapporteur was not permitted to see any prisoner either in Insein Prison or in Myitkyina Jail. The Special Rapporteur was also denied access to the cells of both prisons. Similarly, the Government of Myanmar rejected the ICRC standard requirements for visits to places of detention (i.e., that it meet prisoners in private, have access to all prisons and be assured of repeated visits). The non-acceptance of the customary ICRC procedures for visits to places of detention and the non-acceptance of the Special Rapporteur's request to meet with some detainees while in Insein Prison and Myitkyina Jail would indicate that the Myanmar authorities are unwilling to open their jails to public scrutiny.
107. Given the lack of access to Myanmar prisons, the Special Rapporteur could only rely on reports from former detainees which indicate that conditions in the prisons fall far below minimum international standards established by the United Nations. Prisoners are said to be denied adequate food (in amount and quality) and health care, to be housed in insanitary and degrading conditions and subjected to cruel disciplinary practices or torture.
108. Numerous allegations, often in considerable detail, have been received from various sources alleging that members of the Myanmar military, intelligence and security services and police continue to torture persons in detention or otherwise subject them to cruel, inhuman or degrading treatment and punishment. Such treatment seems to be routinely employed during the interrogation of persons who have been arbitrarily arrested. Many former political detainees testified to having been put into leg irons and beaten with canes, sometimes to the point of unconsciousness.
109. According to information received, Saw Naing Naing, Monywa Tin Shwe, U Win Tin, Myo Myint Nyein and Dr. Myint Aung, all members of the NLD, have been subjected to severe ill-treatment since mid-November 1995 at Insein Prison, where they are at present being held. During this period, the prisoners were said to have been interrogated in respect to letters addressed to the Special Rapporteur which had reportedly been smuggled out of the prison and which contained allegations of ill-treatment and poor conditions. U Win Tin is said to suffer from Spondylitis (an inflammation of the vertebrae). According to the information received, prison officials forced the five prisoners to sleep on concrete floors without mats or blankets in "military dog cells", which are small cells where military dogs are normally kept. The five have also been denied access to their families. On the basis of the information received, the Special Rapporteur, in a letter addressed on 15 January 1995 to the Government of Myanmar, expressed his fears and preoccupation over these allegations. He pointed out that the impartial and free assessment of the situation of human rights in Myanmar requires him to have access to any letters, documents or materials of any kind and no person should be subjected to punishment or maltreatment because of their collaboration with him. He added that such a practice would clearly be in contravention of Commission on Human Rights resolution 1995/75 which urges Governments to refrain from all acts of intimidation or reprisal to those who have provided testimony or information to representatives of United Nations human rights bodies.
110. The Special Rapporteur received testimony from reliable sources indicating
that detainees are very often forced to sleep on cold cement, and that many of them suffer from sickness and serious diseases. The same reliable testimony indicates that cells are often overcrowded and that prisoners are provided with inadequate hygiene or medical care. A former woman inmate reported to the Special Rapporteur that during her stay in Insein Prison between 1989 and 1992, around 170 to a maximum of 250 women were held in a two floor dormitory measuring 60 by 40 feet. During that period, she said, at least 30 children and new-born infants were living with their mothers in the prison. The mortality rate among the new-born children in the prison was very high and this was due mainly to the inadequate food provided to them.
111. Bribery and corruption were said to be a major problem in Myanmar prisons. Although families can bring food and medicines to their relatives, such supplies are reportedly sometimes confiscated by the prison authorities. It was said that about one eighth of the items brought to prisoners are confiscated.
112. The Special Rapporteur was told by the Myanmar authorities that prisoners convicted of criminal offences could participate in voluntary labour at project sites and, by participating in such projects, could have their sentences reduced. Despite the Government's explanation, the Special Rapporteur remains concerned at current reports of hundreds of prisoners who have been forced to work under extremely harsh conditions on infrastructure projects without being released at the completion of their duties. Several detainees from prisons throughout Myanmar have been reportedly forced, together with the people of Mong Nai, to build a railway section from Mong Nai to Nam Zarng, with the commitment that they be released after the completion of the section. Now, the same prisoners are reportedly being forced to continue working on different sections, from Mong Nai to Mawkmai and from Ho Nam Sai Khao to Shwe Nyong. One prisoner reported that three of his companions had died during the construction. Apparently, prisoners can avoid going to such camps if they pay large bribes to the prison authorities.
113. The Special Rapporteur was also informed by persons released from prison that during their detention they were not allowed to have any reading material, including the State-run newspaper, or material with which to write, or non-political literature; they were reportedly also denied access to radios.
C. Torture and other cruel, inhuman or degrading treatment
114. Allegations concerning the practice of torture and other cruel, inhuman or degrading treatment or punishment have previously been addressed by the Special Rapporteur in his reports to the Commission and the General Assembly (A/47/651, paras. 46-52; E/CN.4/1993/37, paras. 97-114; A/48/578, paras. 9-11; E/CN.4/1994/57, paras.48-50; A/49/594, paras. 13-15; E/CN.4/1995/65, paras. 114-117; A/50/568, paras. 20-23). On the basis of the information received throughout the past year it appears that the practice of torture remains widespread. Reports of torture and inhuman treatment in the past year include severe beatings, shackling, near suffocation, burning, stabbing, rubbing of salt and chemicals into open wounds and psychological torture, including threats of death. Other reported methods of torture include sexual assaults and rape, mostly among women serving as porters. In some cases, victims alleged that they had suffered burns and the cutting off of parts of their bodies (for example, ears and tongue).
115. According to reports received, torture and ill-treatment would seem to be a common method to extract confessions from civilians suspected of real or perceived anti-government activities. It also seems to be a means for the Myanmar authorities to punish citizens who do not comply with their orders. The most vulnerable populations are porters in the course of their duties, and civilians living in areas of active insurgency. It has also been reported that some victims of torture have to pay bribes to avoid such treatment.
116. In addition to receiving several reports alleging widespread torture and other cruel, inhuman and degrading treatment in Myanmar, the Special Rapporteur has interviewed persons claiming to be victims or to have witnessed such human rights violations. Several persons gave testimony, corroborated by their own scars and disabilities, about torture which they suffered during the time they were serving as porters for the Army.
117. With respect to some specific cases, the Special Rapporteur draws attention to his latest report to the General Assembly at its fiftieth session (A/50/568) and to the report of the Special Rapporteur on torture to the Commission on Human Rights at its present session (E/CN.4/1996/35, paras. 113-114; E/CN.4/1996/35/Add.1, paras. 458-475). In this connection, the Special Rapporteur is aware that the Government of Myanmar has responded to some of the allegations transmitted by the Special Rapporteur on torture.
D. Freedom of expression and association
118. The freedoms of expression and association are guaranteed respectively by articles 19 and 20 of the Universal Declaration of Human Rights. These rights include the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers, and the freedoms of peaceful assembly and association. The Special Rapporteur has previously reported on the interference of Myanmar law and SLORC orders with the freedoms of expression and association (E/CN.4/1993/37, para. 186). In Myanmar, it would appear that SLORC does not permit any freedom of expression or association that significantly conflicts with or opposes SLORC, the regional Law and Order Restorations Councils (LORC) at different levels, or the Government.
Freedom of expression
119. the Special Rapporteur was informed that there has been increased access for foreign journalists in Myanmar. Their movement and access to contacts were reportedly less restricted or monitored than in previous years. Foreign newspapers were also available in some bookstores in Yangon, and more than 80 Myanmar magazines, of social and cultural interest, are available to the public. To a large extent, these developments are a reflection of the increasing scale of international business and domestic commercialization resulting from open door policy of SLORC.
120. In 1995, during his visit to Myanmar, the Special Rapporteur noticed that, within the country, the written press, radio and television continue to be subject to governmental censorship and that the distribution of written material was also subject to governmental restrictions and control. All magazines must be read by a governmental body, the "Press Scrutiny Board", before their distribution.
121. The Myanmar media are largely used as an instrument to propagate and promulgate what SLORC has defined as the political, economic and social objectives of the Union of Myanmar. The Special Rapporteur received information from several reliable sources which demonstrates the extent of governmental supervision over and application of restrictions on freedom of expression. For example, it is reported that since the beginning of 1995, Myanmar's most popular public speaker, U Aung Thin, has been completely barred from giving public lectures in any part of the country. Whenever his name comes up before SLORC officials for approval to speak, permission for the rallies is immediately refused or withdrawn. Another example brought to his attention concerns the failed attempt of the popular literary journal, "Sa-pay Gya-neh," to dedicate its June 1995 issue to the Myanmar poet and NLD elected member, Min Thu Wun. The issue was reportedly blocked at the very last moment by an order from the Deputy Minister of Home and Religious Affairs, although the cover of the publication carrying Min Thu Wun's portrait had already been passed by the censors.
122. While a multiethnic society such as Myanmar might reasonably be expected to have its diversity reflected in the media, the Special Rapporteur notes that, to his knowledge, there are no newspapers in any minority language. It is also reported that writing and publishing books in minority languages is a very difficult task which requires a very long procedure. All books and printed material have to pass before a censorship board, but minority-language texts have to pass the additional obstacle of translation into Burmese before they can be reviewed.
123. Apart from censorship, the Government of Myanmar continues to intimidate its citizens and discourages them from exercising their fundamental right to freedom of expression by prosecuting persons through the use of criminal and treason-related charges. The Special Rapporteur mentioned in his previous report to the Commission on Human Rights (E/CN.4/1995/65) that one of the charges against Khin Zaw Win, Daw San Nwe and U Khin Maung Swe, who were arrested in July 1994, was that of "writing and distributing false news that could jeopardize the security of the State". The Special Rapporteur notes that other citizens are still being arrested for peaceful expression of their ideas. As mentioned above (see para. 96), three political party leaders were sentenced on 3 July 1995 to seven years' imprisonment "for collecting and distributing anti-government seditious pamphlets". More recently, a student, U Ye Htut, was sentenced on 14 November 1995 to seven years' imprisonment for "writing false and fabricated news about Myanmar since 1992, which could cause foreign countries to misunderstand the actual situation prevailing in the country".
124. It is evident that the total State domination of the media, together with the existence of a wide range of SLORC orders limiting the freedom of expression, seriously undermines the possibility of the citizens freely expressing their opinions.
Freedom of association
125. Turning to the issue of freedom of association, violations come in two principal forms: restrictions on association of a political nature, and on the right to form and join independent trade unions.
126. With respect to the right to form and join trade unions, and notwithstanding the fact that Myanmar is a party to International Labour Organization (ILO) Convention No. 87 of 1948 concerning Freedom of Association and Protection of the Right to Organize, workers and employees in Myanmar do not enjoy the right to join organizations of their own choice outside the existing structure. Furthermore, such organizations do not have the right to join federations and confederations or to affiliate with international organizations without impediment.
127. The situation in Myanmar was examined by the ILO Committee on the Application of Standards at its eighty-second session, in June 1995. As regards the application by Myanmar of ILO Convention No. 87, the Committee took note of the statement of the Myanmar Government representative indicating his Government's commitment to harmonize law and practice with the Convention. The Committee, however, felt serious concern that the Government had not acted on the observations of the Committee of Experts over many years, and that no trade unions in the true sense of the term existed. It recalled that it has been commenting upon the serious incompatibilities between the Government's law and practice, on the one hand, and the Convention, on the other hand, for 40 years. Seafarers in Myanmar were reportedly denied the right to form an independent trade union for the defence of their basic rights and interests and could not affiliate with an international federation. It was reported that, through the Seamen Employment Control Division, the Government of Myanmar has total control over the placement of the approximately 30,000 Myanmar seafarers, who are allegedly required to sign a contract that they will not contact the International Transport Workers' Federation.
128. With respect to restrictions on political parties, reports indicate that in Myanmar political parties are subject to intense and constant monitoring by SLORC. In this regard, the Special Rapporteur received several reports of acts aimed at restricting the activities of political parties, in addition to the existing SLORC orders, including Order 2/88 prohibiting the assembly of "five or more persons" which remains in effect.
129. Although the Special Rapporteur is aware that since the release of Daw Aung San Suu Kyi, a crowd of two to three thousand people is gathering every weekend outside the gate of her residence to hear what she and other NLD leaders say, the law prohibiting public gatherings without obtaining permission from local administrative bodies remains in force.
130. Leaders of some political parties are reportedly not allowed to leave their locality without prior permission from the authorities concerned. During the Special Rapporteur's meeting with leaders of political parties, U Aung Shwe, Chairman of NLD, informed him that on 23 October 1991 he was told verbally not to go outside the Yangon city municipal limits. This restrictive order still applies to him at the present time. It is reported that Central Executive Committee and Central Committee members who wish to travel outside Yangon are required to inform the authorities in advance. On arrival at their destination they have to report to the local authorities as well.
131. Distribution of party literature to the public is not allowed and political parties are generally forbidden to use any printing equipment for the reproduction and distribution of their bulletins, pamphlets and statements. The Special Rapporteur is aware of one notable exception, enjoyed by NUP, which is mentioned in paragraph 61 above.
132. Oppositional or critical political views are not given coverage in the media. For instance, it was reported that in August 1995 the Myanmar Government had been jamming Burmese language radio programming by the British Broadcasting Corporation. This was allegedly done after Daw Aung San Suu Kyi had given a series of interviews to foreign journalists that were broadcast into Myanmar that month.
133. Since the withdrawal of the NLD delegates from the National Convention on 29 November 1995, the Special Rapporteur has received several reports which indicate that new restrictions have been placed on NLD members and that Vice-Chairmen U tin Oo and U Kyi Maung are reportedly under constant surveillance and routinely harassed.
E. Freedom of movement and forced relocation
134. Freedom of movement is guaranteed by article 13 of the Universal Declaration of Human Rights. This right includes freedom of movement and residence within the borders of each State, and the right to leave any country, including one's own, and to return to one's country.
135. Information received by the Special Rapporteur indicates that freedom of movement is restricted in Myanmar. Exit from the country requires possession of specific government authorization, which is allegedly difficult to obtain. Application for exit visa and passport requires certificates of nationality and security clearances which many citizens either do not have or cannot obtain. Passport applications are reviewed by a board and decisions appear to be dependent on political considerations. Entry visas for Myanmar citizens who left the country legally or for those who acquired foreign citizenship are said to be more readily available.
136. With regard to restrictions on the freedom of movement inside the country, the Special Rapporteur notes that only citizens carrying identity cards are free to travel within the country, which precludes those residents unable to meet the restrictive provisions of the citizenship law, for example, the Muslim population living in Rakhine State. In addition, all citizens are required to inform the authorities of their movements within the country and the names of overnight guests must be reported to and registered with the local authorities.
137. During his visit to Myanmar, the Special Rapporteur was pleased to note that the Government had continued to ease restrictions on foreign travellers. Several members of intergovernmental and international non-governmental organizations are permitted to travel through the country to implement their programmes directly with the concerned population. Nevertheless, reliable sources informed the Special Rapporteur that certain persons, such as human rights advocates, journalists and political figures, continued to be denied entry visas.
138. Other well-documented reports received by the Special Rapporteur concern violations of the right to own property, as articulated in article 17 of the Universal Declaration of Human Rights. The reports refer to cases of confiscation or destruction of movable and immovable property, for which only in a very few cases were the victims said to have been given some form of compensation. People continue to be forcibly relocated, with little or no compensation, to new towns and villages. In some areas, such as Hlaing, Thngangyun and Tamwe, displaced home-owners do not get any compensation, although some were reportedly given the option of buying apartments in the buildings constructed on the site of their old homes. Usually the cost of these new apartments is beyond the means of the displaced owners. Most of those displaced have to buy plots of land in the new townships with their own money, causing them great financial hardship. The displaced population are usually faced with great economic difficulties, as their means of livelihood were connected to the area where they previously lived.
139. The Special Rapporteur received other disturbing reports of the seizure of arable lands by the authorities to establish new towns or for military purposes. This results in some farmers being deprived of their traditional means of subsistence. For example, in September 1995, the military under the East Command (Taunggyi Headquarters) reportedly started to occupy agricultural land claimed by the local farmers in Alegyaung Village, Ywangan Township, Taunggyi Division, Shan State, which belongs to the Kinda Watershed area. As a result, 30 to 40 farmers have reportedly lost all of their land, and many others are left with plots too small to survive.
140. Several minority groups have in the past been affected by violations of property rights. Among the victims were individuals, families and even entire villages considered guilty by association and consequently subjected to a policy of extended punishment. Confiscation or demolition of property has also been systematically applied as a sanction against alleged insurgent sympathizers. At present, forcible relocations appear to be taking place mostly in the context of development projects.
F. Labour rights
141. On the question of forced labour, the Special Rapporteur received during his visit to Myanmar the texts of two recent secret directives of SLORC which prohibit the practice of labour without payment. The secret directives in question are SLORC Directives No. 82 and No. 125, the full and authentic texts of which were received by the Special Rapporteur in the original Burmese language; an unofficial English translation is reproduced in annex II to the present report. Directive No. 82, which was promulgated on 27 April 1995, instructs "to stop obtaining labour without compensation from the local people in irrigation projects". Directive No. 125 "prohibits unpaid labour contributions in national developments projects". The Special Rapporteur welcomes the Government's intention to cease the practice of labour without payment but notes that the contents of neither directive constitutes abrogation of any of the laws under the 1908 Village Act and the Towns Act, which authorize forced labour under certain conditions and which are still in force in the country. In addition, the Special Rapporteur notes that several months after their publication, these directives are still not public and therefore not accessible to those to whom they would apply and to those protecting the rights of persons accused of breaking the laws.
142. Given the many complaints received by the Special Rapporteur from several reliable sources, it seems that neither of the directives is being implemented rigorously. Men, women and children are allegedly still used as forced labour for the construction of railways, roads and bridges. They are reportedly not paid for their work and are allowed only a minimum of food and rest. Various sources have reported an especially extensive use of forced labour in relation to several completed or ongoing railway construction projects. Eyewitnesses travelling through Myanmar by land from Moulmein to Ye in the Tenassarim Division have reported that resumption of forced labour on the Ye-Tavoy railway is occurring. According to the source, more than 50,000 people are being forced to work on a new section of the railway from Ye to Kanbauk. Other reports indicate that forced labour is also being used to repair and widen the highway in Pegu township. Each household is being allegedly ordered to pay 50 kyats per member every 2 weeks as their contribution to the construction of this highway. The duties that people are said to perform range from sorting out stones that come from a quarry, carrying the stones from one point to another, shifting gravel through bamboo leaves and mixing and laying down the tar. The living conditions on the construction site are said to be very poor, heat and dust being the major factor of hardship.
143. In June 1995, at the eighty-first session of the International Labour Conference in Geneva, the Special Rapporteur took note of the fact that the matter of forced labour in Myanmar had been raised before the Committee on the Application of Standards. The Committee could not find a way to agree with the position of the Government, as reported to the Committee of Experts, that what was being alleged to be forced labour was actually voluntary labour. Further, the Committee called upon the Government of Myanmar to repeal urgently the offensive legal provisions of the Village Act and the Towns Act to bring them into line with the letter and spirit of the ILO Convention No. 29 concerning Forced or Compulsory Labour, of 1930, ratified by the Government of Myanmar in 1955.
144. Apart from forced labour, the Special Rapporteur has been informed that workers in Myanmar do not enjoy basic labour rights including, in particular, freedom of association and the right to organize. There is hardly any trade union movement, and workers and trade unionists who criticized the Government would risk interrogation and arrest.
G. The National Convention and the process of democratization
145. When the National Convention adjourned on 8 April 1995, its Chairman, Chief Justice U Aung Toe, stated that agreement had been reached to lay down principles for the designation of self-administered divisions and self-administered zones under the chapter of the Constitution entitled "State structure".
146. On 28 November 1995 the Government of Myanmar reconvened the National Convention. The subjects on its agenda were: the legislature; the executive and the judiciary branch. Like the previous sessions, the plenary opening session was attended, among others by 5 delegates from the National League for Democracy included in the political parties delegates group and 81 representatives elected from the NLD included in the representatives elected group. Following the opening address delivered by Lt.Gen. Myo Nyunt, Chairman of the National Convention Convening Commission, the NLD representatives decided to withdraw from the Convention and to boycott its current session.
147. Article 21.1 and 21.3 of the Universal Declaration of Human Rights provides that everyone has the right to take part in the government of his country, directly or through freely chosen representatives, and that the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections.
148. The Special Rapporteur notes that of the 702 National Convention delegates from 8 categories, 49 are selected by the 10 political parties remaining after the 1990 elections, 106 are elected representatives and the remainder of the delegates from the other 6 categories were chosen by SLORC. In fact, NLD members, despite winning 80 per cent of the seats in the 1990 general elections comprise only about 15 per cent of the 702 delegates.
149. Furthermore, the Special Rapporteur has been informed that each of the eight groups represented were to have a panel of five chairmen who would lead the discussions and that, in the political parties group, only one chairman was from the NLD - the party that won a majority in the 1990 elections. In the elected representatives group, where 89 of the remaining 106 delegates were from the NLD, no NLD representatives were selected as chairmen.
150. Given these figures and the process of selection of the delegates, the Special Rapporteur notes that the National Convention is not truly representative in the sense of article 21.1 and 21.3 of the Universal Declaration of Human Rights, because its membership does not reflect the results of the elections.
151. Freedom of expression in general and political debate in particular in the National Convention compound seem to be severely restricted and circumscribed. Delegates cannot distribute discussion papers among themselves: all papers have to be submitted first to the chairmen of the groups. The chairmen scrutinize the contents and, if the statements are found to be contradictory with the agreed principles, the relevant parts are deleted. Only then can the papers be read at the group meetings. When the proposed statements are to be read before the plenary meeting, they have to be submitted again for scrutiny by the Work Committee. Moreover, it appears that delegates are not totally free to meet with other delegates and to exchange their views inside the compound. They are reportedly not entitled to distribute leaflets, to wear badges or to bring any written or printed materials to the Convention without prior approval by the National Committee.
152. During the Special Rapporteur's visit to Myanmar in 1995, he was also informed that all the delegates to the National Convention are required to stay in the Convention compound. Five delegates live together in each dormitory. There is one sergeant clerk in each dormitory serving the delegates. It is reported that these sergeant clerks may also observe the activities of the delegates. It was also reported to the Special Rapporteur that when the delegates return to their states to see their families they are sometimes harassed and monitored by the local authorities. In this regard, the Special Rapporteur fears that this atmosphere of intimidation does not permit the delegates to be in touch with the populations they represent to enable them to take into account their grievances, wishes and points of view and, thus, to represent them meaningfully during the debates which are taking place in the National Convention.
H. The movement towards reconciliation with the insurgents
153. During the Special Rapporteur's meetings in Myanmar, the Government proclaimed the recent cease-fire agreements as its most significant achievement, as an example of national reconciliation and as the starting-point for national and regional development. In response to the Government's invitation to the armed groups "to return to the legal fold", it has been reported that on 21 March 1995, the Kayinni National Progressive Party (KNPP) reached a cease-fire agreement with the Government of Myanmar. Three months later, on 29 June 1995, the Government signed another cease-fire agreement with the Mon minority group. The New Mon State Party (NMSP) was the fifteenth rebel ethnic group to agree to a cease-fire with the Government.
154. With regard to the cease-fire agreement concluded between KNPP and the Government of Myanmar, the Special Rapporteur is concerned that it has not been faithfully respected by SLORC. According to several reports received, the Myanmar Army, on 15 June 1995, breached certain terms of the agreement. It deployed its troops into the KNPP designated areas and continued to collect porter fees and to conscript Kayenni and other civilians for army operations, such as carrying military equipment, ammunition and other supplies.
155. During the Special Rapporteur's stay in Myitkyina (Kachin State), the Government invited U Zaw Hra, Vice-Chairman of the Kachin Independent Organization (KIO) and U Khun Nawng, the liaison officer of the Myitkina office, to meet with him. The meeting took place in the presence of the governmental delegation which was accompanying the Special Rapporteur and which recorded the entire conversation. Given the fact that no interpreter was assigned to the Special Rapporteur during his mission, he had to rely on a governmental interpreter during the meeting.
156. U Zaw Hra informed the Special Rapporteur that KIO had signed a cease-fire agreement with the Government of Myanmar on 24 February 1994 after four years of negotiations. Although the terms of the agreement were not publicized, U Zaw Hra told the Special Rapporteur that the principal point agreed upon was the maintenance of the present military status quo in both SLORC and KIO designated areas.
157. During the meeting, U Zaw Hra explained to the Special Rapporteur that the central Government of Myanmar has denied the Kachin population its basic social, human and economic rights. He said that the profits extracted from the natural resources available in Kachin State, such as teak and jade, were not benefiting the Kachin population but the central Government. When compared with other States, Kachin State was the poorest and was lagging behind in development owing to the civil war, but also to the policy of the central Government, which never reinvested in that region, always favoured the Burmese and considered the Kachin as second-class citizens. With regard to the human rights situation, the Vice-Chairman told the Special Rapporteur that between 1988 and 1992 the Kachin population had suffered deportation, forced relocation and destruction of their villages. Many villagers had been forced to work as porters or as labourers building roads.
158. U Zaw Hra admitted that since the signature of the cease-fire agreement, the human rights situation had improved considerably in Kachin State. Cases of forced relocation, forced labour and forced portering had decreased noticeably, except in some remote areas.
159. U Zaw Hra expressed the hope that the signature of the cease-fire agreement would enhance opportunities for implementing regional development programmes and making the entire Kachin State prosperous. He also hoped that efforts and arrangements would be made in order to permit wider participation of the local population in governing and benefiting from the resources of their own region. U Zaw Hra concluded the meeting by saying that it was only through political settlement that genuine peace could be reached in Myanmar.
160. The Special Rapporteur was informed about the absence of genuine representatives of the ethnic nationalities in the National Convention. Despite the fact that the Government of Myanmar had made various cease-fires with ethnic nationalities, these groups are only allowed seats as observers and therefore cannot participate in the process of drafting the Constitution. I. The treatment of the Muslim population in Rakhine State
161. In 1992, there was a mass influx of some 250,000 Muslim refugees into Bangladesh from Rakhine State in Myanmar. In order to address this problem, memoranda of understanding concerning the voluntary repatriation of the refugees, were signed between UNHCR and the Governments of Bangladesh and Myanmar, on 12 May 1993 and 5 November 1993 respectively. Repatriation to Myanmar is continuing and more than 190,000 Myanmar refugees out of an estimated total of about 250,000 have so far been repatriated from neighbouring Bangladesh.
162. UNHCR is playing a key role in helping ensure conditions in Rakhine State that are conducive to the return of the refugees and in monitoring their treatment by the Myanmar authorities. According to reliable sources, since the beginning of UNHCR assistance to the repatriation process, very few cases of human rights violations have been reported to them.
163. Most of the Muslim population of Rakhine State are not entitled to citizenship under the existing naturalization regulations and most of them are not even registered as so-called foreign residents, as is the case with foreigners/stateless persons living in other parts of Myanmar. In this regard, the Special Rapporteur would like to point out that since Myanmar is a party to the Convention on the Rights of the Child, Myanmar is obligated, in accordance with article 7 of the Convention, to afford nationality to every child born on its territory, in particular where the child would otherwise be stateless.
164. The Special Rapporteur has been informed that the Government of Myanmar has agreed to grant returnees over 18 years of age identity documents called "Temporary identification cards", but these identity documents would not change the status of the persons concerned. The present status situation of the Muslim population in Rakhine State does not permit them to leave their villages without authorization from the local SLORC commander. They are also not allowed to serve in State positions and are barred from attending higher educational institutions.
III. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
165. The visit of the Special Rapporteur to the Union of Myanmar at the invitation of the Government was facilitated by the efforts, cooperation and courtesy extended to him by the officials of the Government, in particular General Khin Nyunt, Secretary One of SLORC, and U Ohn Gyaw, Minister for Foreign Affairs. All of the requests of the Special Rapporteur to meet with government representatives were met, including with the Chief Justice, the Attorney-General, the Minister of Information, the Minister for National Planning and Economic Development, and the Minister for Home Affairs.
166. The Special Rapporteur wishes to express his appreciation to the Government for arranging his visits to Kachin State and Shan State, Insein Prison, Myitkyina Jail and other places and facilities which he had requested to visit.
167. However, the Special Rapporteur was disappointed that this year, despite a formal written request before going to Myanmar and despite his repeated requests while in Myanmar, he was not permitted to see any prisoner, either in Insein Prison or in Myitkyina Jail. He also regrets that the meetings with the representatives of political parties were held at a place and in an atmosphere not conducive to a free and unencumbered exchange of views.
168. The Special Rapporteur generally observed in Yangon, Myitkyina and Kyaingtone that there were visible signs of relaxation of tension in the life of the people. There were many consumer goods in market places where many shoppers crowded. Physical developments in the construction or improvement of roads, bridges, buildings and railways are taking place in different parts of the country and in some border areas. However, just as last year, he was informed that only a small portion of the population was enjoying an improved lifestyle and the majority who were poor were suffering from the high prices of basic necessities such as rice and medicine.
169. The Special Rapporteur welcomes the expanding cooperation between the Government of Myanmar and various other United Nations organs and international humanitarian non-governmental organizations.
170. The Special Rapporteur is pleased to note that the Government of Myanmar has continued to release persons who have been detained for political activities, including Daw Aung San Suu Kyi. However, he expresses his concern that there are still hundreds of such persons detained in Myanmar.
171. The Special Rapporteur notes problems in the field of the administration of justice with regard to fair trials, free access to defence lawyers, prescription of disproportionate penalties and time for careful examination of the cases by courts.
172. The non-acceptance by Myanmar of the customary procedures of ICRC for visits to places of detention is a negative step for the amelioration of conditions of detention in Myanmar. Conditions in Myanmar prisons seem to fall short of international standards; i.e., the Standard Minimum Rules for the Treatment of Prisoners; the Basic Principles for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. The Special Rapporteur believes that suspicion of mistreatment of prisoners will continue as long as access to public scrutiny is denied.
173. Detailed reports, photographs, video recordings and a variety of physical evidence seen by the Special Rapporteur indicate that the practices of forced labour, forced portering, torture and arbitrary killings are still widespread in Myanmar. They seem to be occurring in the context of development programmes and of counter-insurgency operations in ethnic minority regions. Many of the victims of such acts belong to ethnic national populations. In particular, they are peasants, women, daily wage-earners and other peaceful civilians who do not have enough money to avoid mistreatment by bribing.
174. The Special Rapporteur continues to be concerned about the serious restrictions imposed upon the enjoyment of civil and political rights. The people do not enjoy the freedoms of opinion, expression, publication and peaceful assembly and association. They seem to be always fearful that whatever they or their family members say or do, particularly in the area of politics, would risk arrest and interrogation by the police or military intelligence. This is a result of the existence of a complex array of security laws which provide the Government with sweeping powers of arbitrary arrest and detention. These laws include the 1950 Emergency Provisions Act, the 1975 State Protection Law, the 1962 Printers and Publishers Registration Law, the 1923 Official Secrets Act and the 1908 Unlawful Association Act. In this connection, more than 15 individuals, who were exercising their rights to freedom of expression and association, were arrested in the course of 1995 on a combination of charges under these laws, including such charges as writing and distributing "illegal leaflets, spreading false information injurious to the State and contact with illegal organizations".
175. The persons whose civil and political rights are most severely restricted are the members of political parties, particularly the NLD leaders, and delegates to the National Convention, again those from the NLD. Because of both visible and invisible pressures, they cannot assemble in a group, cannot have free discussion, and cannot publish or distribute printed materials. In this situation, it is difficult to assume that open and free exchanges of views and opinions are taking place in Myanmar in order to produce a truly multi-party democratic society.
176. Turning to the freedoms of movement and residence in Myanmar, including the right to leave and re-enter one's own country, the Special Rapporteur concludes that clear violations of these freedoms are to be found in Myanmar law and practice. Specifically, severe restrictions are placed on travel abroad. On the matter of internal deportations and forced relocations, the Special Rapporteur concludes that government policies violate the freedoms of movement and residence and, in some cases, constitute discriminatory practices based on ethnic or religious affiliations.
177. Government representatives have repeatedly explained to the Special Rapporteur that the Government is willing to transfer power to a civilian government, but that, in order to do so, there must be a strong Constitution and that, in order to have a strong Constitution, they are doing their best to complete the work of the National Convention. However, the Special Rapporteur cannot help but continue to feel that, given the composition of the delegates (only one out of seven delegates was elected in the 1990 elections), the restrictions imposed upon the delegates (practically no freedom to assemble, print and distribute leaflets or to make statements freely), and the general guidelines to be strictly followed (including the principle regarding the leading role of the Tatmadaw), the National Convention does not appear to constitute the necessary "steps towards the restoration of democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990" (General Assembly resolution 47/144, para. 4).
178. The Special Rapporteur is paying special attention to the recent successes of the government initiative to invite the armed insurgent groups to enter into talks with the Government and he notes, in particular, an initially positive response this year from the Karen National Progressive Party and the New Mon Socialist Party. He considers that cease-fire agreements are a helpful basis for lasting peace but that they do not represent lasting peace. Serious dialogue with ethnic representatives for permanent reconciliation is essential. He is hopeful that the process will move forward from a military cease-fire agreement to a political agreement, which is the only solution to obtain true reconciliation and peace throughout the country.
179. The Special Rapporteur welcomes the fact that, subsequent to the signing on 5 November 1993 of the Memorandum of Understanding between the Union of Myanmar and the Office of the United Nations High Commissioner for Refugees (UNHCR) to facilitate and guarantee the voluntary and safe return of Myanmar residents from Bangladesh, and the subsequent opening of a UNHCR field office in Rakhine State to allow UNHCR international staff to monitor the repatriation of the refugees, tens of thousands of refugees have been successfully repatriated.
B. Recommendations
180. The Special Rapporteur regrets that he finds it necessary to repeat most of the recommendations made in his report to the Commission on Human rights in 1995. In the light of the foregoing conclusions, the Special Rapporteur also finds it necessary to make additional recommendations for the consideration of the Government of Myanmar.
(a) The Government of Myanmar should fulfil the obligations it has assumed under Articles 55 and 56 of the Charter of the United Nations "to take joint and separate action in cooperation with the Organization for the achievement of ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion". In this respect, the Special Rapporteur wishes to state that the Government of Myanmar is in an ideal position because it could encourage the delegates of the National Convention to include various human rights provisions in the new Constitution using, as a reference, the provisions of the Universal Declaration of Human Rights, a copy of which should be circulated to each delegate in the Burmese language.
(b) The Government of Myanmar should consider accession to the International Covenants on Human Rights; the Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment; and the two Protocols additional to the Geneva Conventions of 1949.
(c) Myanmar law should be brought into line with accepted international standards regarding the protection of the right to physical integrity, including the right to life, and prohibition of torture, cruel, inhuman or degrading treatment. In this regard, the Government of Myanmar should take immediate and unequivocal steps to stop the practices of torture and other cruel, inhuman or degrading treatment.
(d) All political leaders, including elected political representatives, students, workers, peasants and others arrested or detained under martial law after the 1988 and 1990 demonstrations or as a result of the National Convention, should be tried by a properly constituted and independent civilian court in an open and internationally accessible judicial process in which all defendants could have access to counsel of their choice. If found guilty in such judicial proceedings, they should be given a just sentence. Alternatively, they should be immediately released and the Government should undertake to refrain from all acts of intimidation, threat or reprisal against them or their families and to take appropriate measures to compensate all those who suffered arbitrary arrest or detention.
(e) The Government of Myanmar should repeal or amend, as appropriate, the relevant provisions which at present prevent the International Committee of the Red Cross from carrying out its humanitarian activities with regard to prison visits. In that respect, the Government of Myanmar is encouraged to invite ICRC to return to Myanmar in order to carry out its purely humanitarian tasks.
(f) The Government of Myanmar should take steps to facilitate and guarantee enjoyment of the freedoms of opinion, expression and association, in particular by decriminalizing the expression of oppositional views and by relinquishing government control over the media and literary and artistic communities. The Government of Myanmar should, therefore, consider repealing or amending all existing laws restricting freedom of expression, including the Printers and Publishers Registration Law of 1962, in order to guarantee to all people in Myanmar, including members of ethnic minorities, full protection of their right to freedom of opinion and expression, as established in article 19 of the Universal Declaration of Human Rights.
(g) The Government of Myanmar should also comply with the obligations under International Labour Organization Convention No. 87, permitting the formation of independently organized trade unions. The Government of Myanmar should also take all necessary measures to guarantee and ensure that all political parties may freely exercise their activities without restrictions. To this end, all restrictions on freedom of movement, association and assembly, including the 1908 Unlawful Association Act, should be removed.
(h) The Government of Myanmar should remove all restrictions relating to the entry and exit of citizens into and out of the country, as well as their movement within the country.
(i) The Government of Myanmar should cease all discriminatory policies which interfere with the free and equal enjoyment of property, and compensate appropriately those whose property has been arbitrarily or unjustly destroyed.
(j) The Government of Myanmar should comply with obligations under the International Labour Organization Convention No. 29, prohibiting the practice of forced portering and forced labour. In this connection, the Government of Myanmar should urgently take the appropriate measures to repeal the offensive legal provisions under the Village Act and the Towns Act to prevent the continuation of the practice of forced labour. The Government of Myanmar should also publicize and rigorously implement the "Secret Directives" which discourage the practice of forced labour without payment.
(k) The Government of Myanmar should take all necessary measures to accelerate the process of transition to democracy and to include in that process the representatives duly elected in 1990 who are excluded from participating in the meetings of the National Convention. In this regard, the Government of Myanmar should without delay begin a process of genuine and substantive dialogue with the leaders of the National League for Democracy and with other political leaders, including representatives from ethnic groups.
(l) The Government of Myanmar is encouraged to continue its cooperation with UNHCR in facilitating and ensuring the voluntary and safe return of Rakhine Muslims from Bangladesh.
(m) The Government of Myanmar should consider the revision of the 1982 Citizenship Law to abolish its burdensome requirements for citizenship. The law should not apply its categories of second-class citizenship, which have discriminatory effects on racial or ethnic minorities, particularly the Rakhine Muslim population. It should be brought into line with the principles embodied in the Convention on the Reduction of Statelessness of 30 August 1961.
(n) The Government of Myanmar should take the necessary steps to bring the acts of soldiers, both private soldiers and officers, into line with accepted international human rights and humanitarian standards so that they will not commit arbitrary killings, rape, or confiscations of property, or force persons into labour, portering, relocation or otherwise treat persons without respect to their dignity as human beings. When the hiring of the labour of local villagers for portering and other works is required for governmental purposes, it should be obtained on a voluntary basis and adequate wages should be paid. The nature of the work should be reasonable and in accordance with established international labour standards. When relocation of villages is considered necessary for military operations or for development projects, proper consultation with the villagers should take place and appropriate compensation should be paid for those relocations which may be determined necessary for reasons of the public good.
(o) Military and law enforcement personnel, including prison guards, should be thoroughly informed and trained as to their responsibilities in full accordance with the standards set out in international human rights instruments and humanitarian law. Such standards should be incorporated in Myanmar law and legislation, including the new constitution to be drafted.
(p) Given the magnitude of the abuses, official condemnation should be made by the Government of all acts by authorities involving human rights violations. Such acts, including all acts of intimidation, threat or reprisal, should not benefit from the present system of almost complete denial by, and impunity under, the Government.
(q) The Government of Myanmar is also encouraged to continue its cooperation with various United Nations organs and international humanitarian non-governmental organizations in facilitating and ensuring the free access of their international staff to ordinary persons in the townships and villages Ä to establish contacts and provide assistance to persons who suffer from a shortage or lack of food, safe water, medicine, medical care and proper education.
(r) In the light of all of the above, the Special Rapporteur recommends that the Commission on Human Rights request the High Commissioner for Human Rights to consider placing a team of human rights field officers in such locations as would facilitate improved information flow and assessment and would help in the independent verification of reports on the situation of human rights in Myanmar. The implementation of this mechanism, for which the Commission on Human Rights should request the necessary additional resources, would help the Special Rapporteur to assess better the continuing situation of human rights in Myanmar and contribute constructive criticisms and comments.
Annex I
EXTRACT FROM THE PRISONS ACT, 1894 (SECTION 40, 784)
"Time for interview
1. The Superintendent shall fix the days and hours at which all interviews shall be allowed, and no interviews shall be allowed at any other time, except with the special permission of the Superintendent. A notice of the hours during which prisoners may be interviewed shall be posted outside the jail.
Place of interview
2. Every interview shall take place in a special part of the jail appointed for the purpose, if possible at, or near, the main gate. Provided that interviews with female prisoners shall, if practicable, take place in the female enclosure. Provided also that, if a prisoner is seriously ill, the Superintendent may permit the interview to take place in the hospital, and a condemned prisoner shall ordinarily be interviewed in his cell. Provided further that the Superintendent may, for special reasons, to be recorded in writing, permit an interview to take place in any part of the jail.
Interview to take place in the presence of a jail officer
3. Every interview with a convicted prisoner shall take place in the presence of a jail officer, who shall be responsible that no irregularity occurs and who shall be so placed as to be able to see and hear what passes and to prevent any article being passed between the parties. No politics should be allowed to be brought out at the interview.
Termination of interview
4. Any interview may be terminated at any moment if the officer present considers that sufficient cause exists. In every such case the reason for terminating the interview shall be reported at once for the orders of the senior officer present in the jail.
Duration of interview
5. The time allowed for an interview shall not ordinarily exceed 20 minutes but may be extended by the Superintendent at his discretion.
Search before, and after, interview
6. Every convicted prisoner, and every unconvicted criminal prisoner, shall be carefully searched before and after an interview."
Annex II
DIRECTIVE NO. 125 PROHIBITING UNPAID LABOUR CONTRIBUTIONS IN NATIONAL DEVELOPMENT PROJECTS
Unofficial Translation
Secret
Union of Myanmar
The State Law and Order Restoration Council
Office of the Chairman
No. 125/Na Wa Ta (00)/Nyaka - 2
Dated: 2 June 1995
To,
State/Division Law and Order Restoration Councils
Subject: Prohibiting Unpaid Labour Contributions in National Development Projects
1. It has been learnt that in obtaining labour from the local populace in carrying out national development projects, such as construction of roads, bridges and railways as well as building of dams and embankments, the practice is that they have to contribute labour without compensation.
2. In fact, these projects have been carried out with a view to furthering the welfare of the local people. As such, it is imperative that in obtaining the necessary labour from the local people, they must be paid their due share.
3. Causing misery and sufferings to the people in rural areas due to the so-called forced and unpaid labour is very much uncalled for. The sufferings of the people may in turn create misperception, misunderstanding and misjudgment of the Government and the Tatmadaw (Armed Forces).
4. Therefore, it is hereby instructed that the authorities concerned at different levels make proper supervisions so as to avoid undesirable incidents.
Sd/-Lt.Col. Phay Nyein (for the Secretary)
Copy to: Ministry of Agriculture Ministry of Railways Ministry of Construction Annex III
DIRECTIVE NO. 82 TO STOP OBTAINING LABOUR WITHOUT COMPENSATION FROM THE LOCAL PEOPLE IN IRRIGATION PROJECTS
Urgent
Unofficial Translation
Secret
Union of Myanmar
The State Law and Order Restoration Council
Office of the Chairman
No. 82/NaWaTa (Oo)/ Ta Wa
Dated: 27 April 1995
To:
Minister Ministry of Agriculture
Chairman Yangon Division Law and Order Restoration Council
Commander No. (11) Light Infantry Division Headquarters
Subject: To stop obtaining labour without compensation from the local people in irrigation projects
1. It has been learnt that some of the local people are very concerned over the assignment of each and every family in the task of digging a certain number of pits for making ditches and trenches in the overall construction of dams in Yangon Division.
2. It is hereby instructed to hire paid labourers to carry out these projects and to stop the practice of obtaining labour from the local people without monetary compensation.
3. In so doing, the Ministry of Agriculture is to bear the resulting expenditure.
Sd/-Lt.Col. Phay Nyein (for the Secretary)
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UNITED NATIONS
Economic and Social Council
Distr.
GENERAL
E/CN.4/1997/64
6 February 1997
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-third session
Item 10 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE
TO COLONIAL AND OTHER DEPENDENT COUNTRIES AND TERRITORIES
Situation of human rights in Myanmar
Report of the Special Rapporteur, Mr. Rajsmoor Lallah,
submitted in accordance with Commission on Human Rights
resolution 1996/80
CONTENTS
Introduction
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS
A. The impact of Myanmar law on human rights
B. Extrajudicial, summary or arbitrary executions
C. Torture and cruel, inhuman or degrading treatment or punishment
D. Due process of law
E. Rights pertaining to democratic governance
F. Measures adversely affecting democratic governance
G. Remedial measures
III. THE MISSION TO THAILAND
A. Introduction: The problem of displacement
B. The main causes of displacement
C. Patterns and consequences of displacement
D. Issues of humanitarian law
E. Rights particularly relevant to displaced persons in Myanmar
F. Remedial measures
IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
B. Recommendations
Introduction
1. The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar has been described in each of the Special Rapporteur's previous reports to the General Assembly (A/47/651, A/48/578, A/49/594, A/50/568 and A/51/466) and to the Commission on Human Rights (E/CN.4/1993/37, E/CN.4/1994/57, E/CN.4/1995/65 and E/CN.4/1996/65). The mandate, initially articulated in Commission resolution 1992/58 and extended most recently by the Commission in resolution 1996/80 of 23 April 1996 (approved by the Economic and Social Council in its decision 1996/285 of 24 July 1996), required the Special Rapporteur to establish or to continue direct contacts with the Government and people of Myanmar, including political leaders deprived of their liberty, their families and their lawyers with a view to examining the situation of human rights in Myanmar and following any progress made towards the transfer of power to a civilian government and the drafting of a new constitution, the lifting of restrictions on personal freedoms and the restoration of human rights in Myanmar. In resolution 1996/80, the Commission urged the Government of Myanmar to cooperate fully and unreservedly with the Commission and the Special Rapporteur and, to that end, to ensure that the Special Rapporteur effectively had free access to any person in Myanmar whom he might deem it appropriate to meet in the performance of his mandate, including Daw Aung San Suu Kyi; requested the Secretary-General to give All necessary assistance to the Special Rapporteur; and requested the Special Rapporteur to report to the General Assembly at its fifty-first session and to the Commission at its fifty-third session.
2. On assuming his mandate, the present Special Rapporteur has tried to identify the priority concerns of the international community with regard to the situation of human rights in Myanmar. Such concerns are referred to in the resolutions which the various competent organs of the United Nations have adopted over the past five years, in particular General Assembly resolution 51/117 and Commission resolution 1996/80, which are the most recent. These concerns constitute the substantive content of the Special Rapporteur's mandate. They may be summarized as follows:
(a) The electoral process initiated in Myanmar by the general elections of 27 May 1990 has yet to reach its conclusion and the Government still has not implemented its commitments to take All necessary steps towards the establishment of democracy in the light of those elections;
(b) Many political leaders, in particular elected representatives, remain deprived of their liberty;
(c)Violations of human rights remain extremely serious, including, in particular, the practice of torture, summary and arbitrary executions, forced labour, including forced portering for the military, abuse of women, politically motivated arrests and detention, forced displacement, serious restrictions on the freedoms of expression and association, and the imposition of oppressive measures directed, in particular, at ethnic and religious minority groups;
(d) The continuing fighting with ethnic and other political groups, despite the conclusion of cease-fire agreements, which, together with the continuing violations of human rights, has resulted in flows of refugees to neighbouring countries.
1. ACTIVITIES OF THE SPECIAL RAPPORTEUR
3. With a view to discharging his mandate in the most impartial and effective manner, the Special Rapporteur immediately after his nomination sought the cooperation of the Government of Myanmar by sending on two occasions letters informing them of his recent nomination and asking them for authorization to travel to Myanmar in order, inter alia, to examine the situation in situ and to meet with appropriate government representatives as well as other persons relevant to the fulfilment of his mandate and to allow him to discharge his mandate fully and reliably in reporting to the States Members of the United Nations and to ensure that the General Assembly and the Commission on Human Rights are presented with an accurate and comprehensive assessment of the situation of human rights in Myanmar.
4. In the meantime, and in order to become familiar with the different issues pertaining to his mandate, the Special Rapporteur visited in July 1996 Switzerland and the United Kingdom and met with several individuals and organizations, both intergovernmental and non-governmental, based in Geneva and London who possess recent and useful information on alleged human rights violations in Myanmar.
5. On 8 October 1996, the Special Rapporteur submitted a preliminary report (A/51/466) to the General Assembly at its fifty-first session.
6. On 15 November 1996, the Special Rapporteur presented his interim report on the situation of human rights in Myanmar to the fifty-first session of the General Assembly at United Nations Headquarters. While in New York, the Special Rapporteur met with several representatives of governments and non-governmental organizations and also private individuals who imparted their views and information on the situation of human rights in Myanmar.
7. In his continuing effort to obtain the most accurate and up-to-date information on the situation of human rights in Myanmar, the Special Rapporteur visited Thailand in December 1996 to assess the situation of the displaced persons from Myanmar living in refugee camps along the Thai-Myanmar border. The findings of the mission are reflected in section IV of this report.
8. On 9 January 1997, the Special Rapporteur addressed a third letter to the Minister for Foreign Affairs of Myanmar in which he reiterated his request for cooperation and to visit Myanmar. Unfortunately, to date, his requests have met with no response. In this regard, the Special Rapporteur wishes to highlight, and to express his regret about the fact that since his appointment in June 1996, he has yet to be allowed by the Government of Myanmar to see the situation on the ground despite the requests expressed in the resolutions of the General Assembly and the Commission on Human Rights that he have direct access to the Government and people of Myanmar.
9. Notwithstanding the lack of cooperation on the part of the Government of Myanmar, the Special Rapporteur through his missions and consultations has received much assistance and information from governmental, intergovernmental and non-governmental sources. He has also received information from individuals connected in one way or another with the situation in Myanmar. He has also received several well-documented reports describing the situation in Myanmar, particularly in relation to the matters over which the General Assembly and the Commission on Human Rights have expressed concern. These have proved very helpful.
10. The present report is based upon information received by the Special Rapporteur through 31 December 1996. The report is to be read in conjunction with the Special Rapporteur's report to the General Assembly; the present report updates certain matters discussed before the General Assembly while treating some issues not addressed there.
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS
A. The impact of Myanmar law on human rights
11. In his last report to the General Assembly (A/51/466, sects. III and IV), the Special Rapporteur analysed the question of the legitimacy of the assumption and continued retention of martial law powers after the elections of 1990, its break with constitutionality and legal continuity, its non-conformity with international norms and the adverse impact of Myanmar law on the respect and protection of human rights. In this regard, the Special Rapporteur mentioned the most commonly employed laws banning the enjoyment of civil and political rights and suppressing dissent against the State Law and Order Restoration Council (SLORC). He came to the conclusion that various laws, by themselves, criminalize or adversely affect freedom of thought, information, expression, association and assembly through fear of arrest, imprisonment and other sanctions. In addition, where they do not criminalize them, executive acts or orders greatly restrict those rights.
12. The Special Rapporteur notes that these laws and orders aimed at the restriction of civil and political rights continue to be invoked to arrest Myanmar citizens. Moreover, new laws have been enacted in order to provide the authorities other legal bases to suppress the rights of freedom of expression. Therefore, the Special Rapporteur was not surprised to receive information that people continued to be arrested and detained for the peaceful exercise of fundamental human rights.
13. For example, on 15 August 1996 National League for Democracy (NLD) member Dr. Hlaing Myint, together with NLD member Kyaw Khin and student Maung Maung Wan, were sentenced to a total of 10 years' imprisonment (7 years under section 5(j) of the Emergency Provisions Act and 3 additional years under the 1985 TV and Video Act).
14. Order 2/88, which prohibits public gatherings of more than five persons, has also been invoked in several arrests lately, including the arrest of people attending Daw Aung San Suu Kyi's weekend speeches delivered at the gate to her home.
15. Law No. 5/96 of 7 June 1996, entitled "Protecting the Stable, Peaceful and Systematic Transfer of State Responsibility and the Successful Implementation of National Convention Free from Disruption and Opposition", prohibits, inter alia, the preparation or dissemination of speeches or statements that undermine the stability of the State or are critical of the SLORC, and prescribes up to 20 years' imprisonment for persons violating the law, while organizations taking part in such activities can be banned and have their funds and property confiscated.
16. According to a statement by Lt.Gen. Khin Nyunt at a press conference on 31 December 1996, Nyein Si (also called Nyein Myint) was arrested on 7 December 1996 in a tea shop on 24th Street in Yangon. He had in his possession pamphlets and documents allegedly proving his and other youths' involvement with the banned Burma Communist Party. They were also said to have conspired in the student demonstrations. The statement referred to a total of 34 youths, among them Toe Toe Htun, who had allegedly been involved in underground activities, who were apprehended in December following student demonstrations. Law No. 5/96 was invoked in these cases.
17. The Television and Video Act of 31 July 1996 requires that:
(a) Foreign diplomatic missions and United Nations agencies obtain permits to show imported videos at "public exhibitions". Government video censorship boards will have the right to ban, censor or restrict the audience for such showings;
(b) Private video operators obtain licences from "video business supervisory committees" which will be formed in All States and Divisions composing the Union of Myanmar;
(c) All videos, both imported and locally produced, be approved by the video censorship board.
Violations of these provisions are liable to punishments of up to three years' imprisonment and/or fines of up to 100,000 kyats. The law also forbids private TV transmitters that are not authorized by the Government, with five-year prison terms for any offenders.
18. The Computer Science Development Law of 27 September 1996 makes the unauthorized import, possession and use of certain types of computer equipment, for example computers with networking capability, punishable with sentences of 7 to 15 years in prison and/or a fine. A "Myanmar Computer Science Council" will be established to approve the type of equipment to be restricted. According to the Government-controlled newspaper "New Light of Myanmar" (NLM), the punishment is prescribed for anyone setting up links with a computer network without prior permission or who uses computer networks or information technology for undermining State security, law and order, national unity, the national economy or national culture or who obtains or transmits State secrets. Members of unauthorized computer clubs may, according to reports, be sentenced to prison terms of a minimum of three years. A punishment of 5 to 10 years' imprisonment is prescribed for anyone who imports or exports computer software or information banned by the Myanmar Computer Science Council.
19. The Special Rapporteur regards these laws as continuing attempts to restrict freedom of opinion and expression in Myanmar, already seriously hampered by a number of other laws in force which the authorities have used to arbitrarily suppress the expression of any opposition opinion or any undesired discussion of certain issues.
B. Extrajudicial, summary or arbitrary executions
20. The Special Rapporteur welcomed the Government's decision to commute death sentences passed between 18 September 1988 and 31 December 1992 to life sentences. Although the Special Rapporteur notes that there presently does not appear to exist an explicit or systematic government policy of encouraging summary executions, he is greatly concerned by the frequent allegations of arbitrary killings of civilians and insurgents by members of the Tatmadaw under a variety of circumstances, in violation of the right to life contained in article 3 of the Universal Declaration of Human Rights. The right to life is considered to have the character of jus cogens, that is binding on All States under All circumstances without any exception. The following allegations exemplify the reports received by the Special Rapporteur:
(a) On 7 December 1996, the owner of the Sein Ba Bu laundry in Railway Station street in Yangon was reportedly arrested and beaten to death by riot police in connection with the breaking up of student demonstrations;
(b) According to reports, Bawi Kung was killed by Light Infantry Battalion (LIB) No. 266 on 9 October 1996 when entering Ngalang village in Than Tlang township to stay the night. The two friends accompanying him attempted to flee, but one of them, Pa Lian, was arrested. After the killing, the army imposed a curfew until the next afternoon, and tortured village elders who could not provide them with the names of Chin National Front leaders;
(c) In January 1996 two men in Kong Kauk village in Shan State were allegedly arrested for suspicion of possession of firearms. They were reportedly taken to an army camp where they were beaten and the eye of one of them was gouged out. Both men were then allegedly killed;
(d) On 26 September 1996, the commander of column 2 of LIB 540, Soe Myint, reportedly shot and killed two villagers who were panning gold at Htee Nga Peh Loh. The soldiers are said to have wanted the gold for themselves.
C. Torture and cruel, inhuman or degrading treatment or punishment
21. Article 5 of the Universal Declaration of Human Rights as well as the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulate a complete prohibition of torture, a prohibition which is, in addition, considered to constitute international customary law of a jus cogens character, binding on All States under All circumstances. Torture is defined in the latter Declaration as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons".
22. Among the reports received by the Special Rapporteur alleging torture by agents of the Government of Myanmar are the following:
(a) On 12 December 1995, Capt. Kyaw Myint of Infantry Battalion (IB) No.104 from Kyaukadin, Tenasserim Division, reportedly brought about 20 villagers, including some women, to Kyaukadin where they were allegedly detained and tortured for 15 days. The torture included standing in hot sunshine at mid-day, beating and having water poured over their heads. The villagers were reportedly accused only of being relatives of Karen guerillas;
(b) On 8 October 1996, members of Army Battalion 256 reportedly entered Ban Ai Long village, near the Thai border, and detained male villagers apparently in order to interrogate them about the presence of Shan insurgents in the village. The following day the troops reportedly beat 10 of the men with their fists, as a result of which one young villager fell unconscious;
(c) Two Akha girls (aged 15 and 16 years) were reportedly taken away by army troops and continuously raped for six days. According to the reports, both were severely traumatized and eventually died;
(d) A 25-year-old Akha man was reportedly kicked to death by SLORC soldiers since he was unable to carry his load of mortars because he was suffering from malaria.
Prison conditions
23. SLORC continues to refuse to change its stance on allowing the International Committee of the Red Cross (ICRC) to visit prisoners despite the fact that such visits are based on international humanitarian law and the 1949 Geneva Conventions to which Myanmar became a party in 1992.
24. The Special Rapporteur continues to receive reports of deplorable sanitary conditions in Myanmar prisons, where ill-treatment is allegedly common:
(a) From mid-November 1995 to early January 1996 U Win Tin, 66, who has suffered from poor health for several years and is dependent on his family for medicine and meat, was, together with a group of other prisoners, placed in military dog cells, made to sleep on concrete floors and not allowed visits from his family. In March 1996, at least five years were reportedly again added to his sentence for his part in trying to inform the Special Rapporteur of the harsh prison conditions;
(b) In June 1996 a Muslim student detained in Thayet jail, Magway Division, was allegedly beaten to death by military intelligence agents. When his body was given to the Muslims from Thayet town it reportedly was bruised all over and had a crushed skull.
25. Prisoners are reportedly not given sufficient food and health care, unless they can pay bribes to prison authorities. U Myo Aung, a Muslim activist serving a 10-year sentence in Thayawaddy jail in Pegu Division, who is reportedly constantly ill-treated and is suffering from dysentery, malaria, gastritis, malnutrition and other complications, was allegedly denied treatment in a proper hospital unless he could pay bribes to the jail doctor.
26. Other prisoners with poor health serving long sentences include MaThida,29-year-old writer and surgeon who had been serving a 20-year prison sentence under various censorship laws since October 1993; Dr. Khin Zaw Win, serving a 15-year sentence on similar charges; and U Nay Min, a 47-year-old lawyer serving a 14-year sentence with hard labour for allegedly sending "false news" in interviews with the BBC.
27. It was learned that NLD MP Hla Than died in prison on 2 August 1996. According to reports he had asked to be allowed to die at home, but the military authorities had denied the request unless he resigned from the NLD, which he refused to do.
D. Due process of law
28. U Pa Pa Lay and U Lu Zaw, both comedians, and U Aung Soe and U Htwe were reportedly sentenced to seven years' imprisonment on 18 March 1996. U Pa PaLay and U Lu Zaw were charged under section 5(c) of the 1950 Emergency Provisions Act with spreading false news, since they had allegedly made jokes about the military Government in a performance on independence day. It is not known what U Aung Soe and U Htwe were charged with. None of these persons was reportedly allowed legal representation at the trial.
29. On 28 March 1996, U Win Tin (66 years of age) and 20 others were sentenced under section 5(e) of the Emergency Provisions Act and under the Penal Code for misappropriation of State property without being allowed any legal representation at the trial, which was held in prison.
30. On 15 August 1996, U Win Tin, U Po Aye, Maung Thein Lin, U Kan Shein andUHla Tun Aung were reportedly sentenced to seven years' imprisonment at Insein Township Court under section 5(j) of the Emergency Provisions Act. U Win Tin was charged with sending out some present and former NLD members to collect information on agricultural development in various parts ofthe country; the others were charged for their parts in collecting this information and for sending "false data". The NLD lawyer defending the fivemen was not allowed to cross-examine all witnesses during the trial, and he was not allowed to meet with U Win Tin privately. U Win Tin was reportedly sentenced to an additional seven years' imprisonment on 26 August under section 5(e) of the Emergency Provisions Act for having served as a translator for Tin Hlaing at an interview with a foreign journalist.
E. Rights pertaining to democratic governance
31. The freedoms of thought, expression, association and assembly are guaranteed, respectively, by articles 18, 19 and 20 of the Universal Declaration of Human Rights. These freedoms are so closely related that restrictions on one of these freedoms almost always has an impact on the others. This is especially so in relation to democratic governance as the will of the people is to be the basis of authority of government according to article 21 of the Universal Declaration of Human Rights. In Myanmar, the relationship is clear in so far as it would appear that the Government will not permit any thought, expression, association or assembly that conflicts with the policy of the SLORC.
32. The clearest evidence of violation of the freedom of expression continues to be found in Myanmar laws, such as Law No. 5/96 of 7 June 1996 referred to above. In application of this law, the following examples have been reported to the Special Rapporteur:
(a) The January 1996 issue of the magazine "Thint Bawa" reportedly had 50 pages torn out by censors since they celebrated the 75th jubilee of the founding of Yangon University. The March issue of the same magazine, intended to celebrate the 160th anniversary of the establishment of the first newspaper in Myanmar, was also severely censored;
(b) On 30 June 1996 Daw Aye Aye Win was reportedly arrested at her home in Tharketa after police officers had searched her house and confiscated 40 cassette recordings of speeches given by Daw Aung San Suu Kyi together with some NLD papers;
(c) On 28 September small groups of students and others, shouting "Long live Daw Aung San Suu Kyi", marched towards a meeting point at Shwedagon Pagoda, the roads leading to which were blocked by security forces, soldiers and police. One of the groups was reportedly arrested by security forces on Shwedagon Pagoda Road, and another group marching from the Shwedagon side was allegedly beaten, arrested and taken to Insein jail by army and security forces.
33. Another law which has perhaps been most frequently invoked to suppress freedom of expression and opinion is the 1950 Emergency Provisions Act which allows the imprisonment for up to seven years of any person who either "infringes upon the integrity, health, conduct and respect of State military organizations and government employees", spreads false news about the government" or "disrupts the morality and behaviour of a group of people".
(a) On 26 August 1996 Tin Hlaing was reportedly sentenced to seven years' imprisonment under section 5(e) of the Emergency Provisions Act for spreading false news. According to the 27 August issue of NLM he had been instructed by U Win Tin to meet foreign journalists on 9 April 1996, to whom he had allegedly given information about torture of political prisoners, which the NLM characterized as "concocted news".
(b) On 23 September Yangon radio announced the arrest of nine youths charged with "inciting the people and spreading false news and fabricated leaflets with the intention to upset the stability of the State and community peace and tranquillity". The youths are Kyin Thein, Thant Zin and Ngwe Soe from Sangyuang township, and Nyan Win, Hla Hla Win, Kyaw Aye, Tun Aye, MyoHtut Aung and Tun Naing. They were sentenced to 13 years' imprisonment on 21 October. Further details on the trials are not known.
34. In his previous report to the General Assembly, the Special Rapporteur noted that in Myanmar violations of the freedom of association take two principal forms: restrictions on associations of a political nature, and the right to form and join independent trade unions.
35. As far as associations of a political nature are concerned, a number of the political parties that won seats in the 1990 elections have been banned, and the functioning of the few that remain has become increasingly difficult. The repressive climate in Myanmar since 1990 has made it virtually impossible for opposition parties to function and they have been severely hampered through constant harassment and arrests.
36. Since November 1995, when the NLD leaders withdrew from the National Convention, there has been an increasing number of arrests of the party members by the SLORC:
(a) Between 7 and 13 December, 28 NLD members were reportedly arrested, among them 13 NLD youths and one NLD politician. A total of more than 60 NLD members were arrested during the month of December;
(b) On 23 October 1996 the Deputy Chairman of NLD, U Kyi Maung, 75 years old, was arrested in Yangon accused of helping to organize a protest by some 500 students against police brutality which began on 21 and 22 October. According to a senior SLORC officer he was detained for questioning for having met with two students from Yangon Institute of Technology, Ye Thiha Thwin and Nyi Nyi Myo, at Daw Aung San Suu Kyi's house. U Kyi Maung was released only on 28 October;
(c) On 29 September six students taking part in the preparations for the 7th Students' Sports Festival in Tavoy were reportedly arrested by soldiers from LIB 19 after having taken a picture of a damaged Union Solidarity and Development Association (USDA) signboard in front of the local SLORC office, charged with illegal possession of a camera, suspicion of stealing firearms and attempted agitation for unrest;
(d) On 14 September 1996 NLD members Aung Myint Oo and Khin Aung were reportedly arrested, for an unknown reason, in Yangon by military intelligence officers;
(e) In September 1996 the wife and son of NLD MP Hla Than, who died in prison on 2 August 1996, were reportedly arrested without any reason being given;
(f) On 8 August 1996 Ye Htum and four other students were arrested after visiting Daw Aung San Suu Kyi's house.
37. If not arrested, NLD leaders and members are subjected to intense and systematic harassment. Several reports received by the Special Rapporteur continue to indicate that they are constantly intimidated and their freedom of movement and expression are repeatedly restricted.
38. The Special Rapporteur notes that since her release from house arrest, Daw Aung San Suu Kyi and her colleagues were allowed to make regular weekly appearances at her home in Yangon and to speak to Myanmar citizens who gather there every weekend. However, since the end of September 1996, barricades and police and security forces have been introduced to prevent people from gathering outside her compound to attend weekend speeches or any possible NLDcongress. Recently, it has been reported that the military intelligence has started to arrest people attending Daw Aung San Suu Kyi's weekend speeches delivered at her gate, charging the NLD with violations of Order 2/88 which prohibits public gatherings of more than five persons. This Order has not been consistently applied, and the SLORC has now extended the number of persons allowed to gather on Daw Aung San Suu Kyi's compound to 10 persons.
39. The Government stated on 28 September that it was compelled to prevent the congress from being held in order to preserve stability and because the necessary legal permission had not been obtained by the NLD:
"The State Law and Order Restoration Council banned the 'All Burma Congress' which was to have been held by the National League for Democracy from 27 to 29 September 1996. To hold such a ceremony with a gathering of people or to use a public address system in the township, permission has to be sought from the respective Township Administrative Authorities and Police Force in accordance with procedures. Respective Township Administrative Authorities have issued since August 1989 directives, including procedures to be followed by the political parties when they hold meetings and ceremonies. Legal action can be taken against those who undertake such procedures if they do not adhere to the directives."
40. According to a SLORC statement on 28 September, the Ministry of Home Affairs and security officials "intimated [to] persons involved with the NLD on 2 and 4 June 1996 that roadside talks of Daw Suu Kyi, U Tin Oo and U Kyi Maung on University Avenue on weekends must no longer continue". The roadside talks and news circulated among representatives of foreign media and external organizations were, according to SLORC, "meant to cause disruption of stability and peace and rule of law and collapse of economic order". The NLD congress was thus a "political movement intended to incite riots and upheaval in the entire country".
41. On the night between 11 and 12 October, University Avenue, the street where Daw Aung San Suu Kyi resides, was again closed to traffic and pedestrians by traffic police and Lon Htein (riot police) troops. On 16 October the barricades were removed but the street remained forbidden for everyone. The registration plates of cars allowed to enter neighbouring streets were reportedly recorded by the police and a nearby gas station and a grocery shop were shut down by the police. On 12 October the Public Relations and Information Division of the Ministry for Foreign Affairs issued a statement explaining the measures undertaken by saying that Daw Aung San Suu Kyi had said on 8 October that the NLD congress and roadside talks would be held and NLD members had been asked to gather at Daw Aung San Suu Kyi's residence at 8.30a.m. on 12 October:
"In order to avoid the undesirable consequences arising out of such a gathering including outbreak of confrontation and riots, disturbance of existing peace and stability in the nation, unruly actions and incitement in the street affecting the daily life of the ordinary people, the authorities have decided as a preventive measure the temporary closure to both traffic and pedestrians of the University Avenue from Kokang Road junction to the Inya Myaing Road starting from the morning of 12 October."
42. Also in October some gatherings of people were broken up by the police. On 12 October there were reportedly four clashes between security forces and people approaching Daw Aung San Suu Kyi's house. In the first incident security forces allegedly chased and attacked a crowd at Kokkine intersection, whereafter the crowd dispersed. Later people assembled again, and the security forces lifted the barricades to let people pass, and then reinstated the barricades, trapping people inside and attacking them. On the same day there were clashes between crowds and security forces also in the Campbell and Hamidtit areas. SLORC reported 25 arrests, but all persons arrested were said to have been released later. After the clashes there was a heavy security presence in the areas.
43. On 1 November 1996 the authorities suggested that larger public meetings may be held within Daw Aung San Suu Kyi's compound, but that not more than 10 persons may gather outside her gate. Daw Aung San Suu Kyi reportedly did not accept these limitations. On 3 November 1996 several processions of NLD supporters were dispersed by riot police on roads leading to Daw Aung San Suu Kyi's house, and at least four persons who tried to gather near Daw Aung San Suu Kyi's house were reportedly briefly detained. Some monks were reportedly injured as a result of the use of batons. SLORC Lt.Col. Hla Min stated on 5 November that the 12 persons detained on the evening of 3 November in connection with a demonstration had been released the following day.
44. The Special Rapporteur was very disturbed to learn of the attacks on Daw Aung San Suu Kyi on 9 November by a stone-throwing mob of about 200 persons. Allegations of government involvement in the event circulated, as the two attacks on the cars Daw Aung San Suu Kyi and her aides were travelling in took place at locations where there was a heavy security presence. Government officials denied their responsibility in the attack and said that they were investigating this incident. The result of such investigations are not yet known.
45. Some NLD members of Parliament, democratically elected in 1991, continue to submit their resignation as a result, it is widely believed, of the continual harassment and the pressure they are facing from the authorities:
(a) At the end of September Yangon Radio announced the resignation of two NLD MPs. U Ngint Tang from Tiddim township, Chin State, was said to have resigned for health reasons and U Zaw Win was said to have resigned because of his family's health problems, and their resignation was accepted by the Multiparty Democratic Election Commission in accordance with section 11, subsection E of the People's Assembly Election Law;
(b) On 28 November Yangon Radio announced the resignation of U Saw Oo Reh, Hpru-so township, Kayah State, citing poor health and old age.
46. Since the September arrests, guards posted at Daw Aung San Suu Kyi's house have reportedly been discouraging and sometimes even preventing her from leaving the compound. According to a statement made on 31 December 1996 by Lt.Gen.Khin Nyunt at a press conference and published in the "New Light of Myanmar", "The main reason why a request had been made to Daw Aung San Suu Kyi not to leave her residence was a precautionary measure to prevent untoward incidents because of the current situation. It had been discovered that anti-Government underground elements were actively trying to stir up and foment trouble in Yangon. So to prevent further disorder the Government had simply requested Daw Aung San Suu Kyi not to leave her compound for the time being."
47. Daw Aung San Suu Kyi's correspondence is said to be studied, her phone reportedly tapped, and her meetings with foreigners closely monitored.
48. On 27 September the NLD office on Shwegondine Road was closed and the NLD signboard was taken down. According to SLORC the office was closed since the contract had expired and the landlord was disturbed by the 300 persons that gathered on his property on 27 September to prepare the congress and therefore took the building back. According to the NLD, the landlord was illegally forced to annul the lease and to remove the signboard from the building. He was threatened that the NLD would be declared illegal and that the building would thereafter be confiscated.
49. The Special Rapporteur was told that in Mayangone (Yangon Division), the authorities demanded that the NLD signboard be reduced in size. It was further reported that in Sagaing Division, the Township Law and Order Restoration Council offices sent a letter to NLD offices instructing them to take down their signboards. Also in Yangon NLD offices were reportedly ordered to take down their signboards, and authorities told building owners that the NLD will be declared illegal and that the buildings thus risked being confiscated.
50. The Special Rapporteur notes that freedom of association also implies aright to refrain from joining associations. In 1995 SLORC, apparently in preparation for the Visit Myanmar Year, reportedly issued a directive requiring all hotels in Myanmar to join the recently created Hotel and Tourism Committee. In addition to an obligatory membership fee, members reportedly have to contribute funds for "community projects".
51. In addition the Special Rapporteur has received reports that most members of the USDA have joined the organization against their will. Civil servants are said to have their names automatically registered on USDA rosters, and village- and township-level authorities are reportedly expected to register at least one USDA member per household. According to reports students in some areas must join the USDA if they want to pass their matriculation exams.
52. With respect to the right to form and join an association, the Special Rapporteur deeply regrets the fact that this right is denied to Myanmar citizens and the events of early December 1996 have demonstrated that the absolute power of the SLORC is also exercised to penalize those wishing to form an independent association.
53. During the first week of December 1996, between 1,000 and 2,000 university students from Yangon's Institute of Technology (YIT) started a series of protest demonstrations in central Yangon demanding, inter alia, the formation of a fully independent students' union. The protests, which appear to be a general expression of frustration and disappointment at the lack of freedom of association and expression and rule of law, spread to Mandalay (Myanmar's second largest city), where students from the Institute of Technology and the Institute of Medicine have also been demonstrating, and to other cities of the country.
54. The security police and army arrived with fire trucks and police vehicles. Several army trucks, three fire engines and two prison buses were seen during the demonstrations. The road leading to the YIT and the surrounding area were blockaded by security personnel. The demonstrations were broken up by security forces. The demonstrators were hosed with water cannons and security forces were reported to have beaten students taking part in the demonstration. The students did not resist. During the demonstrations, police stoned bystanders on the streets as well as onlookers in nearby houses to discourage eyewitnesses. It was reported that about 400 students were arrested for brief questioning and control of identity. Most of the students detained were reportedly released, but some allegedly remained in detention. In an article published on 2 January 1997 in NLM, a SLORC official, Col. Thein Swe, said that the authorities took in 424 students and 172 other persons, all of whom were later transferred to the care of faculty members and the local SLORC respectively, to be subsequently returned home. No one was detained, according to the authorities.
55. Subsequent to these events, universities and most high schools for boys have been closed to classes. Yangon University announced on 8 December 1996 that the 88th Convocation of Yangon University, scheduled to be held on 13 and 14 December, was postponed and that the new schedule would be announced later. The entrance examination for an evening computer course of the Ministry for Education scheduled for 15 December was reported to have also been postponed, the date of the exam to be announced later. On Friday,13December, it was announced that the 30th Convocation of the Yangon Institute of Technology had been postponed.
56. There were reports of teachers and regional officers being sacked as the authorities held them responsible for the unrest. On 15 November, in his address at the conclusion of the Special Refresher Course for Basic Eduction Teachers, the Chairman of the Education Committee, Secretary One Lt.Gen.Khin Nyunt, stated that "the crucial role of teachers is to be always guided seriously by political outlook in moulding the student youths to become reliable and patriotic intellegentia and intellectuals who will build the modern, developed and affluent nation of the future". He stated that teachers must safeguard students from "swaying to the luring of those with the false notion" that Myanmar will prosper only with assistance from the outside. He warned that teachers must guide the students and make them vigilant against the "neo-colonialists and those within the country who have lost their national identity so that they might not be used as stepping-stones in their schemes for enslaving the nation". Teachers are "duty-bound to nurture their pupils to have a strong moral base, free from thinking highly of counter-cultures and material development of other countries ... prevent them from becoming ones who will seek their own gain and betray the national cause". It is evident that the Basic Education courses, which take place on a regular basis, are used as important forums for senior SLORC officials to impart national policy and demand cooperation on the part of the teachers. The extracts show that the speeches are clearly aimed at controlling the student population which, as in the past, seems to be an integral part of the democratic movement.
57. It is significant to note that throughout that week, there was no direct reference made to the student demonstrations which took place in Yangon and which were said to be the most serious challenge to the Government since 1988. In the press there were only indirect indications that the situation in the capital was not normal. On 9 December 1996, Senior General Than Shwe addressed a gathering of USDA executives, stressing that it was "highly essential" for them to implement the Government's 12 political, economic and social objectives, and he urged students to observe discipline and warned them to conduct themselves peacefully and be vigilant against destructive elements.
58. Other than notices that appeared during the first week of December regarding the cancellation of courses, there was no indication in the press about the students' demonstrations as such. To the contrary, Myanmar authorities made several attempts to prevent the coverage of the events:
(a) On 4 December 1996, the Foreign Correspondents Club of Myanmar (FCCM), whose members are all Myanmar nationals working for foreign newspapers and wire services, issued a protest at the detention and beatings of one of their members, U Myo Thant, a photographer for the Japanese daily "Yomiuri Shimbun". U Myo Thant, aged 39, was repeatedly beaten around the head and upper body at the Shwedagon Pagoda on 3 December by Lone Htein riot police. He was then forced into a police van and taken to the Kyaikkasan racetrack. After finally convincing the authorities that he had an official journalist's pass and that he had the authorization to enter the Shwedagon area, at the time already cordoned-off by the Lone Htein, he was released and went to Insein General Hospital, suffering from head injuries;
(b) A Japanese journalist working for "Yomiuri Shimbun", Shigefumi Takasuka, was badly beaten as he watched the demonstrations. He was taken for questioning by military intelligence and finally released twodays later;
(c) At least three other freelance journalists were deported from Myanmar during the first week of December 1996. All of those deported were on tourist visas, and government officials said they were deported because they had worked as journalists while in Myanmar without permission.
59. In the week following the last student demonstration, further arrests of students were reported. On 10 December about 20 students from Yangon Arts and Science University were reportedly arrested after staging a demonstration outside the UnitedStates Embassy in Yangon. The Government of Myanmar, however, denied that there had been any arrests.
F. Measures adversely affecting democratic governance
60. The Special Rapporteur has already described, in Part III of his last report to the General Assembly, the events which have obstructed the establishment of a democratic order after the general elections of 1990. Some further observations are called for.
61. At a press conference held on 1 October 1996, SLORC stated that "the Government is holding power only transitionally. Its main duty is the peaceful transition which will lead towards a multiparty democratic nation". There have also been statements by SLORC that " there is no need for an opposition group, since the Government has the responsibility for a peaceful transition to democracy". It remains unclear how a multiparty democracy can function without opposition parties. On 21 September 1996, the Vice-President of SLORC, Gen. Maung Aye, is reported to have declared that the military could remain in power longer if elements receiving foreign support caused disorder and on 25 September 1996, the NLM indicated that Daw Aung San Suu Kyi would soon be charged with political crimes as she was conspiring with former colonial powers and aiding exiled dissident groups in a plot to overthrow the Government. Military intelligence officers also claimed to have charts and printed material allegedly proving Daw San Suu Kyi's involvement with exiled dissident groups. Finally, in the NLM of 1 October 1996, Senior General Than Shwe is reported to have stated that "drastic action will have tobe taken in the interests of the nation and the people against attempts to destabilize and divide the Tatmadaw ... Confrontation and conflict hinder and obstruct national progress ... Whatever action is taken against the NLD is purely an internal matter".
62. The Special Rapporteur wishes to recall that the promotion and protection of human rights are not "purely an internal matter". In this regard, he wishes to recall in particular the observations he made at paragraphs 9, 10 and 12 of his last report to the General Assembly.
63. In the view of the Special Rapporteur, the absence of respect for the rights pertaining to democratic governance, as exemplified by the absence of meaningful measures towards the establishment of a democratic order, is at the root of all the major violations of human rights in Myanmar. It is most unlikely that these violations will cease as long as the democratic process initiated by the general elections of 1990 is not re-established. In this regard, the release in 1995 of Daw Aung San Suu Kyi and the cease-fire with armed ethnic forces during 1995 and 1996 did raise some hopes that a political dialogue might be about to begin. Disappointingly, however, the National Convention, by reason of its mandate, composition and procedures, including its protracted proceedings, has not proved a positive step and is devoid of democratic credibility. The political process continues to appear deadlocked, with sweeping restrictions in law and practice on the exercise of virtually all human rights and freedoms.
G. Remedial measures
64. The Special Rapporteur is convinced that necessary measures implementing the resolutions of the General Assembly and the Commission on Human Rights have become more urgent for the establishment of democracy in accordance with the will of the people, as expressed in the general elections held in 1990. To this end, a substantive political dialogue should be urgently engaged with the leaders of political parties returned at those elections, including representatives of ethnic groups, and political parties should be permitted to function freely.
III. THE MISSION TO THAILAND
65. Myanmar is one of the most ethnically diverse countries in the world, with ethnic minority groups making up at least one third of the population of45million, and inhabiting half the land area. Although SLORC frequently makes reference to its "135 national races", no official population statistics indicating the current size of the different ethnic groups exist.
66. The 1974 Constitution divided the country into seven ethnic minority States (Chin, Karen, Kachin, Kayah (formerly Karenni), Mon, Rakhine (Arakan) and Shan States) and seven Divisions, largely inhabited by the majority Burman population. The 1947 Constitution guaranteed some of these States a right to secession after a trial period - a right which the 1974 Constitution abolished.
67. By article 1 of the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, Member States have undertaken to protect the existence and national, ethnic, religious or linguistic identity of minorities within their respective territories and to encourage the conditions for the promotion of that identity. Article 4(1) of the Declaration provides in addition that Member States shall "take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law".
68. Article 27 of the International Covenant on Civil and Political Rights provides that, "[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language". In its General Comment No.23 on that article (CCPR/C/21/Rev.1/Add.5 of 26 April 1994), the Human Rights Committee observed that, while the enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State, the article nevertheless establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are entitled to enjoy under the Covenant.
69. It is to be noted that persons belonging to minorities are to enjoy, inaddition to minority rights, all other human rights. Article 2(5) of the 1992 Declaration provides that minorities may communicate with persons in other States with whom they are linked by their national or ethnic origin, religion or language. In this regard, freedom of expression, which includes freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, is especially important for persons belonging to ethnic, religious or linguistic minorities.
70. In order to assess the human rights situation of these specific groups, and because the Special Rapporteur has so far been denied access by the Myanmar authorities to the country, the Special Rapporteur visited Thailand between 9 and 19 December in order to meet with persons of interest to his mandate and to visit camps of displaced persons from Myanmar. These displaced persons belong largely to ethnic minorities. With respect to the specific itinerary followed by the Special Rapporteur, he visited camps in the area of Mae Sot and met with Karens from Myanmar, then proceeded to Chiang Mai and visited gathering sites of displaced persons from Shan State. He continued on to the area of Mae Hong Son in order to visit camps of displaced persons from Kayah (Karenni) State. During his visit, the Special Rapporteur met with a total of 50 newly arrived persons from Myanmar, mostly Karen, Shan and Karenni. The information and views obtained in the course of his visits will be reflected below under the relevant subject headings.
71. Displacement has become a way of life for many persons belonging to the ethnic minorities of Myanmar. For the past 30years Karen, Mon, Karenni and Shan have fled their homes and lands in the course of fights between the Tatmadaw and insurgent groups representing these ethnic groups. Many of them have sought asylum in other countries, notably Thailand.
A. Introduction: The problem of displacement
72. Since the independence of Myanmar from British colonial rule in 1948, Myanmar has suffered from unresolved conflicts between most of the ethnic minorities of the country and the central authorities. These conflicts precipitated insurgencies in several parts of the country which have resulted in large numbers of internally displaced persons. Furthermore, following the events which occurred in 1988, it has been estimated that over 1 million persons have been forcibly relocated, without any compensation, to new towns, villages or relocation camps in which they are essentially detained. This displacement is also attributed to major development projects undertaken by the Government of Myanmar in the process of which large numbers of persons are removed from the lands designated for the projects without being assisted in relocation or appropriately compensated.
73. The Special Rapporteur is not in possession of any independently verified statistics on the number of displaced persons in Myanmar, but local and international NGOs estimate the number of the displaced to be at least 1 million.
74. While studying the situation, the Special Rapporteur has found three reasons accounting for the uncertainty. The first has to do with the fact that until now there seem to have been no attempts on the part of the Government of Myanmar to acknowledge this phenomenon and, therefore, no official statistics are available on the number of displaced persons in Myanmar.
75. The second reason has to do with the particular phenomenon of displacement in the country. Internally displaced persons rarely flee in large numbers as in other situations; usually they move in small groups of a few families or individuals. The areas of expulsion are numerous and spread throughout the country, including in the border areas between Myanmar and Thailand. The displaced usually move to neighbouring rural areas and from there to camps located in Thailand or directly to Thailand, often to join relatives or friends originating from the same area.
76. The third reason has to do with the attitude of the displaced themselves towards their displacement. The Special Rapporteur was told during his visit to Thailand that people in Myanmar flee in absolute silence, not wishing in most instances to be identified as displaced, in order to avoid persecution and fearing execution.
77. It has to be stressed that the situation in Myanmar is so complex and susceptible to so many different interpretations that comprehensiveness is elusive. The causes of displacement are numerous and differ from one region to another, although certain common parameters can be discerned - as reflected below.
B. The main causes of displacement
1. Forced relocation
78. At present, forcible relocations appear to be taking place in two main contexts: as part of development projects and under counter-insurgency operations in ethnic minority regions of the countryside. Although the practice of forced relocations by the military as a means to control the population living in ethnic regions is not new, the scale of these moves increased significantly after 1988 and it is still taking place today. Victims of displacement are mostly peasants, including members of the indigenous and/or ethnic groups such as the Karen, Karenni, Shan and Mon, whoare living in areas of insurgency and victimized by counter-insurgency activities or caught in the cross-fire.
79. In order to cut the main links between the insurgent groups and the civilian population, SLORC has forced entire communities living in the border area between Myanmar and Thailand to move to relocation sites which are subject to tight military control. Expulsion (military) orders have been issued, warning that anyone trying to remain in their homes will be shot on sight.
(a) In Central Shan state, SLORC initiated one of its largest forced relocation programmes, which still continues. It was reported that from March1996 SLORC troops ordered village after village in eight townships (Larng Kher, Murng Nai, Nam Zarng, Lai Kha, Murng Kerng, Kun Hing, Ke See and Murng Su) to move to a total of 45 relocation sites. The estimated number of people being relocated is over 100,000 from over 600 villages;
(b) In Kayah (Karenni) state, it was reported that throughout June and July 1996, SLORC delivered orders to more than 100 villages located between the Pon and Salween Rivers instructing them to move to relocation sites near SLORC army camps in Sha Daw and Ywa Thit townships. The estimated number of people being relocated is 20,000-30,000 and most of them are ethnically Kayah. The army's intention is said to isolate the population in that area from Karenni insurgents of the Kayinni National Progressive Party (KNPP). Army officers allegedly warned that those who remained in the deserted villages would be considered insurgents or "enemies".
2.Forced labour and portering
80. Forced conscription of civilians into compulsory labour duties for the military authorities, including the practice of forced recruitment of porters, is also one of the causes of people leaving their homes. No pay is given for such labour and the period of service can last months. This practice disrupts family life and precludes persons from carrying on their daily work in order to earn a living.
81. While development and industrial projects such as railway construction, and the creation of tourist attractions are carried out in areas inhabited by minorities, many people are having their lands confiscated without any compensation and are forced to move to designated sites.
C. Patterns and consequences of displacement
82. Testimonies received by the Special Rapporteur, as well as comments received from representatives of non-governmental organizations, indicate that victims of displacement are mostly villagers and farmers, living in remote areas of Karen, Shan and Karenni states. Most of them have not been officially registered and do not possess any identification cards or other documents.
83. Following orders to move from their homes, peasants usually try to move first to a nearby rural area or to the jungle, trying to work in their fieldsduring the day and returning for safety at night; once they move to a designated relocation site, they are no longer entitled to leave the compound.
84. Family units and communities are invariably destroyed. The displaced lose their natural and cultural context which leads to a variety of serious social problems. Being forced to move means that peasants in particular have to abandon everything. Displacement leaves them in a worse economic and social situation.
85. Emotional trauma amongst the displaced is common. Families remain without support, battered by violence, while often meagre resources vanish. They often suffer from fear and anxiety associated with loss of work and social role. Women have been additionally affected by violence aimed particularly against them such as rapes and beatings.
D. Issues of humanitarian law
86. Numerous testimonies received by the Special Rapporteur indicate that the civilian population living in or near the combat zone is the most susceptible to being forced to move: in these "grey zones" (zones controlled or influenced by the insurgents) the armed forces often resort to ground searches, destruction and burning of houses, and confiscation of property and food, which lead the people to move temporarily or permanently.
87. Testimonies indicate that often, if not always, the distinction between insurgents and non-combatants is not made and that, therefore, the inhabitants of these zones are also said to be subjected to indiscriminate torture, beatings and arbitrary arrests.
88. Cases of forced evictions seem to occur with great frequency or as a matter of policy. All the people interviewed by the Special Rapporteur stated that they were given at most one week's notice to move and were told that they would be shot if they did not comply. They were forced to leave their piece of land, their crops and most of their animals; much of the property was reportedly immediately stolen or confiscated by SLORC troops.
89. According to testimonies received, relocation sites consist mainly of a large and empty piece of land surrounded by fences or barbed-wire and near a military camp. Nothing is prepared by the authorities to receive the new forced arrivals. There seems to be a food and a health crisis and a general lack of adequate housing and basic services. Villagers have to build their own makeshift huts and provide their own food. One member of each family living in the relocation site has to do various tasks for SLORC, such as building their compound. The interviews, did not make clear to what extent the rights to education and access to health care, especially for children, are being fulfilled. Each family also has to provide one person to work for the army whose compound is usually located on the same site. They perform different duties such as building the fences, cleaning the compound or guarding the site. The villagers are not entitled to leave the compound. Their freedom of movement is extremely limited and in all cases subject to authorization from the local military battalion.
90. Testimonies indicate that some persons who tried to flee were threatened or actually prohibited from doing so. Attempting to flee is said to be interpreted by the authorities as positive proof of participation in or sympathy with the insurgency and of an intention to report on the abuses committed by the Army. Others were required to obtain safe conduct passes or pay high fees at checkpoints for a "permission" to leave. Other sources have reported incidents of women and children being shot at while fleeing in areas near the border with Thailand.
E. Rights particularly relevant to displaced persons in Myanmar
91. In the first place, the forced displacement of persons is not consistent with human rights norms as proclaimed in article 13 of the Universal Declaration of Human Rights and article 12 of the International Covenant on Civil and Political Rights. Freedom of movement and freedom to choose one's residence in one's own country may be restricted on limited grounds and can only be derogated from during times of public emergency which threatens the life of a nation and the existence of which is officially proclaimed. Such derogations, however, are temporary and may not be resorted to in a manner which violates the right to life or the right to be free from torture or cruel, inhuman or degrading treatment or punishment, among other things, as proclaimed in article 4 of the International Covenant on Civil and Political Rights. In any event, displaced persons have a right to return to their place of residence and to the protection of the property that they leave behind. Further, where persons are displaced in circumstances which are consistent with international norms, they have a right to live in conditions in which basic rights to food, housing and health are secured, not to speak of reasonable social amenities and the enjoyment of all other basic rights to life, physical security and public freedoms.
92. Finally, and in analysing the information he has received, the Special Rapporteur observes that article 3 (1) common to the four Geneva Conventions of 12 August 1949 provide as follows:
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
"1. Persons taking no active part in hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
"To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
"(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
"(b) Taking of hostages;
"(c) Outrages upon human dignity, in particular humiliating and degrading treatment;
"(d) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
The obligation to apply common article 3 is absolute for governmental armed forces as well as armed dissidents, and is independent of the obligation of the other party.
93. The Special Rapporteur also observes that article 17 of Protocol II Additional to the Geneva Conventions of 12 August 1949 requires that, in the case of displacements carried out for the safety of civilians or for imperative military reasons, the responsible party must take "all possible measures ... in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition". Article 14 of the same instrument also stipulates a prohibition of starvation of civilians under the control of organized armed forces.
F. Remedial measures
94. The phenomenon of displacement would appear to relate largely, if not exclusively, to ethnic minorities. The problem is not new, and originates mainly from the absence of a political solution dating back to colonial times and before. The cease-fire agreements concluded over recent years are a beginning to a solution but are likely to be fruitless until serious and meaningful measures are taken to engage in a political dialogue which includes the ethnic minorities. The Special Rapporteur, therefore, reiterates his view that a political dialogue must urgently be engaged between the present regime and the political parties returned at the elections of 1990, including representatives of ethnic minorities, with a view to working out such measures as might be considered best to bring the democratic process engaged in 1990 to fruition.
95. Measures to ensure the protection of other human rights also have to be taken. In this respect, the Special Rapporteur expresses his concern over the seriousness of the evidence relating to the country's human rights record. As relates more specifically to the displaced persons, the Special Rapporteur would like to underline the importance of land and property rights and respect for humanitarian law including the rights to life and physical integrity, especially during and immediately following forced evictions.
96. Another important step would be for the Government of Myanmar to open up space for legitimate social action primarily at the micro-level. Grass-roots projects with the local participation of the citizens should have beneficial effects on the local population and should be promoted and supported. There is considerable need for measures strengthening public administration, an independent and impartial judiciary, decentralization and better control over the military.
97. Human rights promotion and protection at the local level are also very important, including in areas where the central Government has little influence. In this connection, there should be human rights training for the military and organization of workshops in relocation sites.
98. Projects for the provision of humanitarian assistance, shelter, health care and psychological assistance during the first days of arrival are to be encouraged. In this regard there should be greater cooperation between the State and the non-governmental organizations already working in Myanmar.
99. In rural areas and in the various regions of the country where the military has an especially strong position, the human rights situation seems to be particularly grave and too few violations are being investigated.
100. Very few returns to areas of origin seem to be taking place. The reason is that at the moment there exist very few solutions to the fundamental causes of displacement. For example, as the Special Rapporteur was told, for the peasants who have lost their land, either because they had to sell it very cheaply before they fled or because it was taken by the army, return is not possible; where the armed conflict is continuing, return is also not an option.
IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
101. The Special Rapporteur regrets that his efforts to obtain the cooperation of the Government of Myanmar and to visit the country have so far failed. Nevertheless, the Special Rapporteur is confident that much of the evidence brought to his attention speaks for itself.
102. The Special Rapporteur observes that the absence of respect for the rights pertaining to democratic governance is at the root of all the major violations of human rights in Myanmar in so far as this absence implies a structure of power which is autocratic and accountable only to itself, thus inherently resting on the denial and repression of fundamental rights. The Special Rapporteur concludes that genuine and enduring improvements in the situation of human rights in Myanmar cannot be attained without respect for the rights pertaining to democratic governance. In this regard, he notes with particular concern that the electoral process initiated in Myanmar by the general elections of 27 May 1990 has still not reached its conclusion and that the Government still has not implemented its commitments to take all necessary steps towards the establishment of democracy in the light of those elections.
103. Government representatives have repeatedly explained that the Government is willing to transfer power to a civilian government but that in order to do so there must be a strong constitution, and that in order to have a strong Constitution they are doing their best to complete the work of the National Convention. However, the Special Rapporteur cannot help but observe that, given the fact that most of the representatives democratically elected in 1990 have been excluded from participating in the meetings of the National Convention, the restrictions imposed upon the delegates (practically no freedoms to assemble, print and distribute leaflets or to make statements freely), and the general guidelines to be strictly followed (including the principle regarding the leading role of the Tatmadaw), the National Convention does not constitute the necessary "steps towards the restoration of democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990".
104. Detailed reports and photographs seen by the Special Rapporteur lead him to conclude that extrajudicial, summary or arbitrary executions, the practice of torture, portering and forced labour continue to occur in Myanmar, particularly in the context of development programmes and of counter-insurgency operations in minority-dominated regions.
105. With regard to allegations of arbitrary arrest and detention, the Special Rapporteur does not doubt that such violations take place on a wide scale, if on no other basis than his examination of the laws in place which shows that such violations are legal and may easily occur. At the same time, the absence of an independent judiciary coupled with a host of executive orders criminalizing far too many aspects of normal civilian conduct, prescribing enormously disproportionate penalties and authorizing arrest and detention without judicial review or any other form of judicial authorization leads the Special Rapporteur to conclude that a significant percentage of all arrests and detentions in Myanmar are arbitrary when measured by generally accepted international standards. In this regard, the Special Rapporteur expresses his deep concern at the continued detention of many political prisoners, in particular elected representatives, and the recent arrests and harassment of other supporters of democratic groups in Myanmar, culminating at the end of September 1996 in the massive arrests of NLD supporters and the virtual blockade of the Secretary-General of the NLD in her compound.
106. On the basis of virtually unanimous reports and other information, the Special Rapporteur concludes that there is essentially no freedom of thought, opinion, expression or association in Myanmar. The absolute power of SLORC is exercised to silence opposition and penalize those holding dissenting views or beliefs. Because of both visible and invisible pressures, the people live in a climate of fear in which whatever they or their family members may say or do, particularly in the area of politics, involves the risk of arrest and interrogation by the police or military intelligence. The Special Rapporteur notes that NLD leaders cannot assemble in a group, cannot freely discuss, and cannot publish or distribute printed material. In this situation it is difficult to assume that open discussion and free exchanges of views and opinions can possibly take place in Myanmar, unless they are in support of the present military regime.
107. Turning to freedom of movement and residence in Myanmar, including the right to leave and re-enter one's own country, the Special Rapporteur concludes that there are clear violations of these freedoms found in Myanmar law and practice themselves. Specifically, severe, unreasonable and, in the case of the Muslim Rakhine population, racially based restrictions are placed on travel inside the country and abroad. On the matter of internal deportations and forced relocations, the Special Rapporteur concludes that the Government's policy violates freedom of movement and residence and, in some cases, constitutes discriminatory practices based on ethnic considerations.
B. Recommendations
108. The Special Rapporteur regrets that he finds it necessary to repeat all of the recommendations made in his report to the General Assembly in 1996. In the light of the foregoing conclusions, the Special Rapporteur submits the following recommendations for the consideration of the Government of Myanmar:
(1) The Government of Myanmar is urged to fulfil in good faith the obligations it has assumed under Articles 55 and 56 of the Charter of the United Nations "to take joint and separate action in cooperation with the Organization for the achievement of ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion". In this respect, the Special Rapporteur would wish to note that the Government of Myanmar should encourage the adoption, as one of the basic constitutional principles of the provisions of the Universal Declaration of Human Rights, a copy of which should be made widely available in the Burmese language.
(2) The Government of Myanmar should further consider accession to the International Covenants on Human Rights; the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the two protocols additional to the Geneva Conventions of 1949.
(3) Myanmar law should be brought into line with accepted international standards regarding protection of physical integrity rights, including the right to life, protection against disappearance, prohibition of torture, cruel, inhuman or degrading treatment, providing humane conditions for all persons under detention and insurance of the minimum standards of judicial guarantees.
(4) In the interest of ensuring that the Government of Myanmar genuinely reflects the will of the people, steps should be taken to allow all citizens to participate freely in the political process, in accordance with the principles of the Universal Declaration of Human Rights, and to accelerate the process of transition to democracy, in particular through the transfer of power to the democratically elected representatives. The institutions of government should benefit from a separation of powers as to render the executive accountable to the citizenry in a clear and meaningful way and, furthermore, steps should also be taken to restore the independence of the Judiciary and to subject the Executive to the rule of law and render executive action justiciable.
(5) The Government of Myanmar is urged to take all necessary measures to accelerate the process of transition to democracy and to involve in a meaningful way in that process the representatives duly elected in 1990. In this regard, the Government of Myanmar should without delay begin a process of genuine and substantive dialogue with the leaders of the National League for Democracy and with other political leaders who were duly elected in the democratic elections of 1990, including representatives of the ethnic minorities.
(6) The Government of Myanmar should also take all necessary measures to guarantee and ensure that all political parties may freely exercise their activities without restrictions and that, in this context, all restrictions imposed on the Secretary-General, the leaders and members of the NLD should be immediately lifted so that they may freely exercise their civil and political rights.
(7) All political detainees, including elected political representatives, students, workers, peasants and others arrested or detained under martial law after the 1988 and 1990 demonstrations or as a result of the National Convention, should be tried by a properly constituted and independent civilian court in open judicial proceedings and in accordance with all the guarantees of fair trial and due process in conformity with applicable international norms. If found guilty in such judicial proceedings, they should be given a just sentence proportionate to their offence. Otherwise, they should be immediately released with the Government responsible for refraining from all acts of intimidation, threats or reprisal against them or their families and for taking appropriate measures to compensate all those who have suffered arbitrary arrest or detention.
(8) The Government of Myanmar should ensure that all laws rendering violations of human rights legitimate are urgently repealed, that laws are given due publicity and that the principle of non-retroactivity of penal laws is respected.
(9) The Government of Myanmar should give particular attention to prison conditions in the country's prisons and take all the necessary steps to allow international humanitarian organizations to have access thereto and to communicate freely and confidentially with prisoners.
(10) The Government of Myanmar should take steps to facilitate and guarantee the enjoyment of the freedoms of opinion, expression and association, in particular by decriminalizing the expression of oppositional views, relinquishing government controls over the media andliterary and artistic works.
(11) The Government of Myanmar should remove all restrictions relating to the entry and exit of citizens into and out of the country, as well as their movement within the country.
(12) The Government of Myanmar should cease all discriminatory policies which interfere with the free and equal enjoyment of property, and compensate appropriately those who have been arbitrarily or unjustly deprived of their property.
(13) The Government of Myanmar should fulfil its obligations under International Labour Organization Convention (ILO) No. 87 concerning Freedom of Association and Protection of the Right to Organize of 1948. In that respect, the Government of Myanmar is encouraged to cooperate more closely with ILO through a technical cooperation programme so that the very serious discrepancies between the law and the practice on the one hand, and the Convention, on the other hand, are urgently eliminated.
(14) The Government of Myanmar is urged to comply with its obligations under ILO Convention No. 29, prohibiting the practice of forced labour and forced portering. In this connection, the Government of Myanmar should urgently take the appropriate measures to repeal the offending legal provisions under the Village Act and the Towns Act to prevent the continuation of the practice of forced labour. In this regard, the Government of Myanmar is encouraged to cooperate with ILO to that end.
(15) The Government of Myanmar should take the necessary steps to bring the acts of soldiers, including privates and officers, in line with accepted international human rights and humanitarian standards so as to prevent arbitrary killings, rapes, and confiscations of property, or forcing persons into acts of labour, portering, relocation or otherwise treating persons without respect to their dignity as human beings. When villagers are hired for porterage and other works, adequate wages should be paid. The nature of work should be reasonable and in accordance with established international labour standards.
(16) The Government of Myanmar should take urgent steps to put an end to the enforced displacement of persons and to create appropriate conditions to prevent the flow of refugees to neighbouring States. In the event that the relocation of villagers becomes necessary in circumstances which are in conformity with international norms, proper consultations should take place with the villagers, including the payment of appropriate compensation, reviewable by independent courts, and the taking of measures to ensure that food, housing facilities, proper medical care and social amenities, including appropriate arrangements for the education of children, are provided in adequate measure in the interest of the displaced persons.
(17) Military and law enforcement personnel, including prison guards, should be thoroughly informed and trained as to their responsibilities towards all persons in full accord with international human rights norms and humanitarian law. Such standards should be incorporated into Myanmar law, including the new constitution to be drafted.
(18) Given the magnitude of the abuses, the Government should subject all officials committing human rights abuses and violations to strict disciplinary control and punishment and put an end to the culture of impunity that prevails at present in the public and military sectors.
************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
UNITED NATIONS
Economic and Social Council
Distr. GENERAL
E/CN.4/1998/70
15 January 1998
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-fourth session
Item 10 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE
TO COLONIAL AND OTHER DEPENDENT COUNTRIES AND TERRITORIES
Situation of human rights in Myanmar
Report of the Special Rapporteur, Mr. Rajsoomer Lallah,
submitted in accordance with Commission on Human Rights
resolution 1997/64
CONTENTS
Introduction
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS
A. The reconstitution of SLORC
B. Rights pertaining to democratic governance
C. Extrajudicial, summary or arbitrary executions
D. Arbitrary detention
E. Torture and cruel, inhuman or degrading treatment or
punishment
III. THE GENDER PERSPECTIVE
A. International norms
B. Myanmar women in public life
C. The situation of refugee women
D. Women and forced labour
IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
B. Recommendations
Introduction
1. The mandate of the Special Rapporteur of the Commission
on Human Rights on the situation of human rights in Myanmar
has been described in each of the Special Rapporteur's
previous reports to the General Assembly (annexes to documents
A/47/651, A/48/578, A/49/594 and Add.1, A/50/568, A/51/466 and
A/52/484) and to the Commission on Human Rights
(E/CN.4/1993/37, E/CN.4/1994/57, E/CN.4/1995/65 and
Corr.1, E/CN.4/1996/65 and E/CN.4/1997/64). The mandate,
initially articulated by the Commission in its resolution
1992/58 of 3 March 1992 and extended most recently in
resolution 1997/64 of 16 April 1997 (approved by the Economic
and Social Council in its decision 1997/272 of 22 July 1997),
required the Special Rapporteur to establish or to continue
direct contact with the Government and people of Myanmar,
including political leaders deprived of their liberty,
their families and their lawyers, with a view to examining the
situation of human rights in Myanmar and following any
progress made towards the establishment of a constitution of
democratic governance, the lifting of restrictions on personal
freedoms and the restoration of human rights in Myanmar.
2. In its resolution 1997/64, the Commission called upon the
Government of Myanmar to cooperate fully with the relevant
mechanisms of the Commission, in particular the Special
Rapporteur, and to ensure his access to Myanmar, without
preconditions, in order to allow him to discharge his mandate
fully, including through access to any person whom he might
deem it appropriate to meet in the performance of his
mandate; requested the Secretary-General to give all necessary
assistance to the Special Rapporteur; and requested the
Special Rapporteur to report to the General Assembly at its
fifty-second session and to the Commission at its fifty-fourth
session.
3. The priority concerns of the international community with
regard to the situation of human rights in Myanmar are
referred to in the resolutions adopted by the various
competent organs of the United Nations over the past six
years, in particular General Assembly resolution 52/137 and
Commission resolution 1997/64, which are the most recent.
These concerns may be summarized, in substance, as follows:
(a) The continuing violations of human rights in Myanmar,
including extrajudicial, summary or arbitrary executions;
killings of civilians; torture; arbitrary arrest and
detention; deaths in custody; absence of due process of law,
including trial of detainees in secrecy without proper legal
representation; severe restrictions on freedom of opinion,
expression, assembly and association; violations of freedom of
movement; forced relocation; forced labour by children as well
as adults, including portering for the military; abuse of
women and children by government agents; and the imposition of
oppressive measures directed in particular at ethnic and
religious minorities;
(b) The absence of significant steps towards the establishment
of democratic governance as expressed by the will of the
people at the elections of 1990;
(c) The exclusion of the representatives democratically
elected in 1990 from participation in the proceedings of the
National Convention, the severe restrictions on delegates,
including members of the National League for Democracy (NLD),
who have withdrawn and subsequently were formally excluded
from the sessions of the Convention and who were unable to
meet or distribute their literature, the adoption by the
Convention of a basic principle conferring on the armed forces
(Tatmadaw) a leading role in the future political life of the
State and the conclusion that the National Convention does not
appear to constitute the necessary steps towards the
restoration of democracy;
(d) The restrictions on the freedom of expression,
association, assembly and movement placed upon Daw Aung San
Suu Kyi and other political leaders and the continued arrests
and harassment of members and supporters of the National
League for Democracy, trade unionists and students for
peacefully exercising their right to freedom of expression,
assembly and association, forced resignations of elected
representatives, the continued attacks against Daw Aung San
Suu Kyi and the closure of all universities and colleges
following the student demonstrations in December 1996;
(e) The forced relocation and other violations of the rights
of persons belonging to minorities, resulting in a flow of
refugees to neighbouring countries, and the continuing attacks
on groups, resulting in death, destruction and displacement;
(f) The violation of children's rights in contravention of the
Convention on the Rights of the Child, in particular through
the lack of conformity of the existing legal framework with
the Convention, by the systematic recruitment of children into
forced labour and by discrimination against children belonging
to ethnic and religious minority groups.[back to the contents]
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
4. On 12 November 1997, the Special Rapporteur presented his
interim report on the situation of human rights in Myanmar to
the fifty-second session of the General Assembly (A/52/484,
annex). While in New York, he met with several representatives
of Governments and non-governmental organizations as well as
individuals who imparted their views and information on the
situation of human rights in Myanmar.
5. It will be recalled that since his appointment, the
Special Rapporteur has sought the cooperation of the
Government of Myanmar and has requested their authorization to
travel to Myanmar in order, inter alia, to examine the
situation in situ and to meet with appropriate government
representatives as well as other persons relevant to the
fulfilment of his mandate so as to ensure that the
General Assembly and the Commission on Human Rights are
presented with a comprehensive assessment of the situation of
human rights in Myanmar.
6. It will also be recalled that, following the submission
of the first report of the Special Rapporteur to the General
Assembly in November 1996, the Permanent Representative of the
Union of Myanmar expressed his disagreement with the
assessment made by the Special Rapporteur. He indicated,
however, that the Special Rapporteur would be authorized at an
appropriate time to visit Myanmar. In April 1997, at the
fifty-third session of the Commission, the Permanent
Representative of Myanmar gave similar indications. Despite
these statements, no steps have so far been taken by the
Myanmar authorities to authorize such a visit. More recently,
in November 1997, during the debate on the human rights
situation in Myanmar at the General Assembly, Ambassador U Pe
Thein Tin, Permanent Representative of Myanmar, while again
challenging the assessment made by the Special Rapporteur,
nevertheless reiterated in his intervention that the
Special Rapporteur would have the opportunity to visit Myanmar
at a time deemed appropriate. The Special Rapporteur regrets
that there have been no developments on this issue and that,
in the more than two years since his appointment, he has not
been given the opportunity to visit the country as requested
by the General Assembly and the Commission on Human Rights.
7. The Special Rapporteur understands that the criticism
levelled by the authorities of Myanmar against the reports of
the Special Rapporteur are based, in large part, on the ground
that his reports "reflect mainly the views of those who are
opposing the Government for reasons totally unconnected with
the issue on human rights". It stands to reason that if the
General Assembly and the Commission are to benefit in a
meaningful way from a serious assessment of that criticism, it
is essential that the Myanmar authorities agree to a visit by
the Special Rapporteur to the country.
8. It must be noted that it is not the Special Rapporteur
who is avoiding discussion of human rights complaints with
representatives of the Government of Myanmar. On the contrary,
it is precisely the Government of Myanmar which refrains from
doing so while continuing to refuse him direct access to the
country and the people of Myanmar. The Special Rapporteur is
only able to meet with people outside Myanmar, in particular
the great number of displaced persons on the Thai side of
the Thailand-Myanmar border areas and whose complaints
the Special Rapporteur feels bound to reflect in his reports
to the Commission and the General Assembly. The Special
Rapporteur is firmly convinced that it is in the interest of
the authorities themselves, in addition to that of the
international community as represented in the United Nations,
that such a visit should take place. This would also clearly
demonstrate the commitment of the Government of Myanmar to
cooperate with the United Nations in accordance with its
obligations under the Charter.
9. Notwithstanding the absence of cooperation on the part of
the Government of Myanmar, the Special Rapporteur has received
much assistance and information from governmental,
intergovernmental and non-governmental sources. He has also
received information from individuals connected in one way or
another with the situation in Myanmar. He has also received
several well-documented reports describing the situation in
Myanmar, particularly in relation to the matters over which
the General Assembly and the Commission on Human Rights have
expressed concern. No less importantly, he has had direct
contact with displaced persons along the Thailand-Myanmar
border who have fled Myanmar and from whom he continues to
receive information.
10. The present report is based upon information received by
the Special Rapporteur up to 19 December 1997 and is to be
read in conjunction with the Special Rapporteur's report to
the General Assembly. The present report updates certain
matters discussed before the General Assembly while treating
some issues not addressed there. In response to operative
paragraph 4 (a) of Commission resolution 1997/64, the Special
Rapporteur has included a chapter on women based on such
information as was available to him.
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS
A. The reconstitution of SLORC
11. On 15 November 1997, the State Law and Order Restoration
Council (SLORC) was dissolved and reconstituted as the State
Peace and Development Council (SPDC), consisting of 19 members
(SLORC Notification No. 1/97 dated 15 November 1997). The
expressed purpose was to "ensure the emergence of an orderly
or disciplined democracy" and to establish a "peaceful and
modern State ... in the interest of all the national peoples".
The former top four SLORC leaders, Senior General Than Shwe,
General Maung Aye, Lieutenant-General Khin Nyunt and
Lieutenant-General Tin Oo, retained their positions within
the SPDC. In addition, Lieutenant-General Win Myint was
appointed SPDC's Secretary Three. Other members include the
Commanders-in-Chief of the Navy and the Air Force, and the 12
Army Regional Commanders.
SPDC Notification No. 2/97, also dated 15 November 1997,
established a 40-member Cabinet. Two new ministries, the
Ministry of Military Affairs and the Ministry of Electric
Power, were created. SPDC Notification No. 3/97, of the same
date, announced the formation of a 14-member Advisory Group.
Its members consist of the 13 former SLORC members who had
lost their positions both within the regime and the Cabinet.
The fourteenth member is Major-General Soe Myint.
B. Rights pertaining to democratic governance
12. In introducing his report to the General Assembly, the
Special Rapporteur indicated that he had observed the
beginnings of a positive attitude with respect to restrictions
on political parties, especially in relation to the activities
of the National League for Democracy (NLD) and its right to
hold meetings. He welcomed the change on the part of the
authorities. However, it would appear that this change is of a
purely formal and limited nature given the virtually
complete control which the authorities seem to exercise over
the venue of meetings, the measure of control over the agenda
of the meetings, the strict limitations on the number of
people allowed to attend, and the monitoring of the meetings,
as the following paragraphs indicate.
13. On 27-28 September 1997, unlike previous years, the NLD
was allowed by the authorities to hold a national convention,
commemorating its ninth anniversary, at the residence of its
General Secretary Daw Aung San Suu Kyi. About 600 delegates
attended the two-day meeting and no arrests were known to have
taken place. However, the Special Rapporteur received reports
of a great number of NLD members who were denied access, by
military intelligence personnel and riot police, to Daw Aung
San Suu Kyi's compound. On 28 September 1997, some 30 NLD
members were forced into trucks by the security forces, driven
for an hour outside the capital and dropped off at the
roadside in groups of two or three to make their way back.
14. It would appear that when the NLD requests permission to
hold a meeting, authorization is granted only for the specific
purpose for which the meeting is taking place; no other
subject of discussion would appear to be allowed. On 10
October 1997, the authorities permitted the NLD to hold a
religious ceremony and about 200 dignitaries attended the
function at the General Secretary's home.
Official Information Sheet No. A-0171, dated 16 October
1997, stated that "the relevant authorities have granted
permission to the party to perform the traditional religious
ceremony with the expectation that the ceremony will be a
purely religious activity and totally none other".
15. On 28 October 1997, an NLD delegation consisting of
Chairman U Aung Shwe, Co-Chairmen U Kyi Maung and U Tin Oo,
and General Secretary Daw Aung San Suu Kyi planned to meet
with local members of the NLD at their office in Mayangone
township, north of Yangon. It was reported that the
authorities took measures to prevent the meeting from taking
place and, upon arrival, the NLD delegation found the office
empty and returned home. According to SLORC Information Sheet
Nos. A-0186 and A-0187, dated 28 October 1997, "the NLD
representatives have also been advised (by the authorities) on
grounds of security and stability reasons that such activities
(rallies) should be held at Daw Aung San Suu Kyi's university
compound".
16. Every time the authorities allow a meeting to take place,
they also always specify the number of people allowed to
attend. For the ceremony celebrating the ninth anniversary of
the NLD, the authorization granted by the authorities dated 26
September 1997 limited the attendance to 300 participants. For
the meeting celebrating the religious ceremony held on 10
October 1997, the authorities imposed a condition that the
"number of invitees be kept at (100) persons" (see Official
Information Sheet No. A-0171).
17. Finally, the meetings are closely monitored by the
authorities and the people attending the meetings are
systematically registered. On 24 November 1997, a ceremony to
celebrate the seventy-seventh anniversary of the National Day
was held at the residence of Daw Aung San Suu Kyi. On that
occasion, it was reported to the Special Rapporteur that
persons attending the ceremony had to wait for half an hour at
the entrance to University Avenue, where the authorities
checked their invitations, registered their names and took
their photographs. It is understandable that there is a need
for the authorities to facilitate the smooth flow of road
traffic in that neighbourhood and to take appropriate measures
to ensure that the persons attending the meeting conduct
themselves in a manner which does not disturb public order.
Nevertheless, the registration of persons attending and the
taking of photos are entirely unnecessary.
On the contrary, such actions are of a dissuasive nature
and a clear restriction on the normal exercise of the basic
freedom of assembly and personal freedoms.
18. Almost two years after her release from house arrest, the
General Secretary of the NLD is reported to continue to face
serious restrictions on her freedom of movement and her social
and political activities, including constant harassment and
vilification. The weekend addresses from her home were
stopped, barricades have been erected in the street giving
access to her home, and both she and the people who visit her
are kept under constant police or military surveillance.
According to a statement released by SLORC on 24 October 1997,
Daw Aung San Suu Kyi's movements will not be restricted
provided she conducts her political activities "within the
framework of the law. ... There is no government restriction
on her movements. In fact, the authorities concerned have only
requested her to be careful in her activities outside her
compound for her own security, and conduct political
activities within the framework of the law and within the
established regulations governing such activities so that
peace, tranquillity and stability will not be disturbed". This
statement brings into sharp focus the question whether the
relevant laws and regulations themselves violate the exercise
of public freedom which a political figure should normally be
able to exercise, with the protection, if necessary, of the
State.
19. On 19 December 1997, the Permanent Mission of Myanmar to
the United Nations Office at Geneva addressed, by name, to the
officer assigned by the Office of the High Commissioner for
Human Rights to assist the Special Rapporteur a note entitled
"Daw Suu Kyi freely fulfils appointment schedule". The note
gave a day-by-day account, from 11 to 17 December 1997, of the
party members who either visited her or whom she visited,
including two foreign diplomats. It is hoped that all
restrictions on Daw Aung San Suu Kyi's public and other
political activities, meetings and addresses will soon be
lifted in order that she may exercise her civil and political
rights freely and completely.
20. The initiation of a dialogue between the authorities and
the NLD would appear to be having a difficult and uneasy
beginning. On 18 December 1997, the SPDC, led by the Minister
for Home Affairs, held a meeting with five Central Executive
Committee (CEC) members of the NLD. The communication of 19
December 1997 referred to above included a note regarding the
purpose of that meeting. According to the note, "the meeting
was initiated by the Minister for Home Affairs with the aim of
creating better understanding and cooperation between the NLD
and the State Peace and Development Council". At the meeting,
the SPDC "cordially advised the NLD CEC members to refrain
from creating conditions in which the authorities concerned
[would be] inevitably forced to take necessary actions against
the NLD party".
The Special Rapporteur has no information regarding the
views of the representatives of the NLD with regard to the
meeting.
21. From such information as is available to the Special
Rapporteur to date, this was the first meeting between
governmental representatives and the NLD since the Government
was reconstituted on 15 November 1997. The last time NLD
officials met government leaders was in July 1997, when NLD
Chairman U Aung Shwe and two Central Executive Committee
members met SLORC Secretary One Lieutenant-General Khin Nyunt
to discuss political issues. In mid-September 1997, high
officials of SLORC invited representatives of the NLD for
discussions.
The meeting did not take place, apparently owing to a
difficulty which arose concerning the acceptance by the
authorities of the General Secretary of the NLD as part of the
delegation, which the NLD had decided should be the case. It
is to be hoped that, in future, the NLD will be free to decide
how its own delegations should be constituted.
22. The Special Rapporteur hopes that serious discussions
will continue and will take place in accordance with the basic
recommendations made both by the General Assembly and the
Commission on Human Rights with regard to the initiation of a
political dialogue with all political parties returned in the
elections of 1990, including representatives of ethnic
minorities.
23. It is perhaps too early to gauge the nature and extent of
the change in the repressive policy vis-à-vis civil and
political rights which has been pursued by the regime since
the people made their choice in the 1990 elections. However,
it is hoped that this most welcome change in attitude on the
part of the authorities, however limited it appears to be at
present, will continue and broaden the democratic space,
permitting the will of the people to be realized. As the
Special Rapporteur had occasion to observe in previous
reports, the violation of the exercise of political rights is
at the root of the violation of most human rights in Myanmar.
C. Extrajudicial, summary or arbitrary executions
24. In his last report to the Commission, the Special
Rapporteur addressed the Government's decision to commute
death sentences passed between 18 September 1988 and 31
December 1992 to life imprisonment. This year, the officer
assigned by the Office of the High Commissioner for Human
Rights to assist the Special Rapporteur received a
communication from the Permanent Mission of Myanmar about an
order issued by the SPDC on 1 December 1997 (Order No. 1/97),
entitled "Commutation and remission of sentences". It states,
inter alia:
"2. In respect of citizen prisoners undergoing death sentence,
imprisonment for a term of an unlimited period, transportation
for life or imprisonment for a term exceeding 10 years under
orders passed by a civil court, military court or military
tribunal, the respective sentences which they are undergoing
shall be commuted and remitted as follows:
"(a) to commute death sentence to transportation for life
(imprisonment for a term of 20 years) for those prisoners
undergoing the said sentence;
"(b) to remit the imprisonment ranging from a term exceeding
20 years to imprisonment for a term of an unlimited period to
imprisonment for a term of 15 years for those prisoners
undergoing the said sentence;
"(c) to commute the sentence of transportation for life to a
term of 10 years for those prisoners undergoing the said
sentence;
"(d) to remit the imprisonment ranging from a term exceeding
10 years to a term of 20 years according to each offence to
imprisonment for a term of 10 years according to each offence
for those prisoners undergoing the said sentence.
"3. The Order, which has the force of law, applies to
sentences passed before 15 November 1997.
"4. The commutation and remission of sentences under this
Order shall not effect the period to which the prisoner
concerned is ordinarily entitled."The Special Rapporteur notes
with satisfaction that one of the early acts of the SPDC has
been to commute death sentences, a sign of progress in the
protection of the right to life.
25. The Special Rapporteur has had no indication that there
exists an explicit or systematic government policy of
encouraging summary executions. However, he is greatly
concerned by the frequent allegations of arbitrary killings of
civilians and insurgents by members of the Tatmadaw under a
variety of circumstances, in violation of the right to life
contained in article 3 of the Universal Declaration of Human
Rights. The right to life has the character of jus cogens
binding on all States under all circumstances, without any
exception. The following allegations, among many others,
exemplify the reports received by the Special Rapporteur:
(a) On 7 June 1997, three villagers from Wan Kyawng, Murngpan
township, Shan state, were allegedly beaten to death by troops
of Light Infantry battalion (LIB) No. 332 from Murngpan. The
three reported victims were Loong Za Li, Loong Nan Ta, and Sai
Ta;
(b) On 13 June 1997, five villagers from different villages in
Murngpan township were reportedly beaten to death by LIB No.
332 troops from Murngpan. The five reported victims were
Pannya from Nam Maw Mon village, Loong Pae from Nawng Harn
village, Pa Kao from Wan Kung village, Su Nan Ta from Loi Noi
village, and Su Na Ta from Long Kaeng village.
26. The Special Rapporteur on extrajudicial, summary or
arbitrary executions has, during the last year, transmitted
three communications to the Government of Myanmar regarding
allegations of violations of the right to life. One
communication concerned three Karenni living in a refugee camp
in Thailand who were allegedly killed on 3 January 1997
by members of the armed forces. Another communication
concerned three other refugees reportedly executed, on 28 and
29 January 1997, in refugee camps in Thailand by members of
the Democratic Karen Buddhist Army (DKBA), a Karen militia
group alleged to be backed by SLORC. The third communication
concerned the arbitrary executions of two Shan farmers
committed on 30 October and 13 November 1996 by the Tatmadaw.
The replies of the Government and the observations of the
Special Rapporteur on extrajudicial, summary or arbitrary
executions are contained in document A/CN.4/1998/68/Add.1,
paragraphs 285-288.
27. Given the great number of allegations of summary or
arbitrary executions, in addition to violations of other basic
rights, as reported in previous reports of the Special
Rapporteur, and given the continuing flow of similar
allegations, particularly in areas where ethnic minorities
live, it is of the utmost importance that the authorities
conduct a high-level inquiry with broad terms of reference. It
is true that most of the acts are alleged to have been
perpetrated by the rank and file. Nevertheless, if the
allegations are well-founded, the acts could not have been
committed without the orders of field superiors.
D. Arbitrary detention
28. During 1997, reports indicated that NLD members and
sympathizers, as well as other persons involved in political
activities, continued to be constantly harassed and some of
them arbitrarily arrested and detained when exercising their
rights to freely express their views, to assemble or to hold
rallies.
29. On 27 June 1997, the Special Rapporteur, together with
the Special Rapporteur on the question of torture, transmitted
an urgent appeal to the Government of Myanmar seeking
clarification with regard to allegations of arbitrary arrest
and torture (see E/CN.4/1998/38/Add.1, para. 255). The Special
Rapporteur notes that the International Committee of the Red
Cross (ICRC) is still not allowed uninhibited access to
prisons and places of detention.
30. The urgent appeal referred to the arrest, on 13 June 1997,
of two Executive Committee members of the Federation of Trade
Unions-Burma and their families by the National Intelligence
Bureau. U Myo Aung Thant, who is also a member of the All
Burma Petro-Chemical Union, is said to have been detained
along with his wife and children at Mingaladon international
airport in Yangon. U Khin Kyaw, who is also an official of the
Seamen's Union of Burma and an affiliate of the International
Transport Workers' Federation (ITF), was reportedly detained
along with his wife at his home. He had allegedly been
tortured and his wife had allegedly been sexually abused
during a previous detention in 1993. Fears had been expressed
that U Myo Aung Thant and U Khin Kyaw and their detained
family members might be subjected to torture or other
ill-treatment during their present detention.
31. The urgent appeal also referred to reports received by
both Special Rapporteurs according to which the following
members of NLD have been detained since 13 June 1997: Khin
Maung Win (also known as Ko Sunny, the official video-
photographer for the NLD), Cho Aung Than (a relative of and
former assistant to NLD General Secretary Daw Aung San
Suu Kyi); Daw Khin Ma Than (the sister of Cho Aung Than); U
Shwe Myint Aung (the husband of Cho Aung Than) and U Ohn Myint
(an NLD adviser who is over 80 years of age).
32. On 24 July 1997, the Government of Myanmar responded that
the seven above-named persons (correcting the names of Daw
Khin Ma Than and U Shwe Myint Aung to Nge Ma Ma Than and U Swe
Myint Aung, respectively) were said to have been found to be
involved in terrorist activities. They had been planning bomb
attacks on foreign embassies and residences of State leaders,
the blowing up of transformers and the cutting of telephone
lines, as well as the incitement of workers. Cho Aung Than was
said to have been involved in making appointments for
foreigners to meet Daw Aung San Suu Kyi. Myo Aung Thant, Nge
Ma Ma Than and Cho Aung Than were said to have secret contacts
with foreigners to send financial aid to Daw Aung San Suu Kyi.
Myo Aung Thant, Nge Ma Ma Than, Cho Aung Than, Khin Maung Win
and U Ohn Myint were said to have participated in producing
and smuggling a film of Daw Aung San Suu Kyi in Kayin national
dress for a charity show for refugees in Bangkok. The
Government of Myanmar added that there was no ground for
concern that the persons detained would face ill-treatment
while in detention since torture and other cruel, inhuman or
degrading treatment were prohibited by relevant laws and
regulations in Myanmar which were scrupulously followed by the
authorities concerned.
33. On 4 November 1997, the two Special Rapporteurs
transmitted another urgent appeal to the Government of Myanmar
seeking clarification concerning eight persons, seven of whom
are said to be leading members of the NLD, who were reportedly
arrested by security forces in the night of 28/29 October 1997
(see E/CN.4/1998/38/Add.1, para. 256).
34. The arrests allegedly occurred following attempts to hold
a meeting with Daw Aung San Suu Kyi at the NLD Mayangone
township office on the outskirts of Yangon. The meeting was
reportedly planned for the morning of 28 October, but security
forces are said to have set up barricades, preventing it from
taking place. A number of NLD supporters were reportedly
arrested but subsequently released. The following eight
persons are still believed to be detained: Daw May Win
Myint (NLD Divisional Organizer and MP-elect from Mayagone),
Khin Maung Myint (NLD Central Youth member and Secretary of
Latha township), Daw San San (NLD Seikkan Divisional
Vice-Chairman and NLD women's leader), Win Win Htay (member of
the Yangon NLD Youth Division), U Soe Myint (Chairman of the
Thaketa NLD), Dr Than Nyein (MP-elect from Kyauktan township),
U Win Thaung (Chairman of the Mayangone NLD office), U Mya
Thaung (landlord of the Mayangone NLD office). Some are also
said to have had documents taken from them. They were
reportedly arrested by security forces, including military
intelligence forces, and taken to an unknown place. Fears had
been expressed that they might be subjected to torture or
other ill-treatment while in detention.
35. Although the Government of Myanmar did not respond
specifically to the letter sent by the Special Rapporteurs,
the officer assigned by the Office of the High Commissioner
for Human Rights to assist the Special Rapporteur received
from the Permanent Mission of Myanmar Official Information
Sheet No. A-0241 dated 10 December 1997, which provided
information about these cases. It states as follow:
"On 9 December 1997, the Special Court of Insein
Rehabilitation Centre passed sentences on the following (7)
persons from NLD who have been charged with section 5 (j) of
the Emergency [Provisions] Act of 1950. [international harm to
the morals or conduct of the public or a section of the public
in a manner likely to impair the security or restoration of
law and order of the Union]:
(a) Dr. Than Neyin
(b) U Soe Myint
(c) U Win Thaung
(d) U Nyan Thaung
(e) Daw May Win Myint
(f) Ma Win Win Htay
(g) U Khin Maung Myint
"The court found the accused (6) persons guilty of section 5
(j) of the Emergency [Provisions] Act of 1950 and U Khin Maung
Myint was found guilty of both section 5 (j) of the Emergency
[Provisions] Act of 1950 and section 16 (a) of 1986 Gambling
Law. The court has sentenced Dr. Than Neyin, U Soe Myint, U
Win Thaung, U Nyan Thaung, Daw May Win Myint, Ma Win Win Htay
to (6) years' imprisonment and U Khin Maung Myint (8) years'
imprisonment, it is learnt."
36. According to information received by the Special
Rapporteur, the accused have been denied their right to retain
lawyers for their defence and were not allowed to defend
themselves in hearings held on 2 December 1997.
37. On 6 November 1997, Dr. Min Soe Lin, an elected member of
parliament and Secretary-General of the banned Mon National
League for Democracy (MNLD), was reportedly arrested under
section 5 (j) of the Emergency Provisions Act for his role in
organizing celebrations for the fiftieth Mon National Day on
23 February 1997. Dr. Min Soe Lin was arrested in Mudon, Mon
state, but it is not known where he has been taken for
detention or under what conditions he is being held.
38. On 19 November 1997, the Myanmar authorities reportedly
arrested Thaung Aye and Chit Khin. Thaung Aye, an owner of a
building in the South Okkalapa township of Yangon, had
reportedly been arrested because he agreed to rent an office
to the NLD. Chit Khin is the Chairman of the Okkalapa branch
of the NLD.
39. The Working Group on Arbitrary Detention on 11 July 1997
transmitted a communication to the Government of Myanmar
concerning a case of detention which was reported to have
occurred in Myanmar. In accordance with its methods of work,
the Working Group has adopted, on 2 December 1997, Opinion No.
20/1997, the text of which is contained in document
E/CN.4/1998/44, annex II. A summary of the case appears
below.
40. After having been released from detention through an
amnesty on 4 February 1995, Khin Sint Aung, aged 61, medical
doctor and member of the NLD, was rearrested on 23 July 1996
for recent activities in support of the opposition. He had
previously been arrested on 3 August 1993 and sentenced on 15
October 1993 to 20 years in prison for destabilizing national
unity, printing and publishing material without official
registration and improper use of official secret documents.
Dr. Khin Sint Aung's case had already been transmitted by the
Working Group to the Government in April 1994. The Working
Group, by its Decision No. 13/1994, declared his detention to
be arbitrary. His rearrest was believed to be related to his
membership of the NLD.
41. The Government informed the Working Group and the Special
Rapporteur that Dr. Khin Sint Aung had been convicted in 1993
under section 5 (j) of the Emergency Provisions Act, section
17/20 of the Printers and Publishers Registration Law, and
section 5 (1) (4) of the Burma Official Secrets Act. The
Government added that Dr. Khin Sint Aung had been granted
amnesty under section 401 (1) of the Criminal Procedure
Code, after he had been given a solemn pledge to the
authorities that he would henceforth abide by the law. But,
the Government added, Dr. Khin Sint Aung did not abide by his
pledge and, as a consequence, the amnesty extended to him was
revoked and he resumed serving the reminder of his original
sentence.
42. The source of the information, in its observations on the
Government's reply, reiterated its view that Dr. Khin Sint
Aung's detention was based solely on the exercise of his right
to free expression. The charges against him were believed to
be specifically related to letters he sent to NLD members
during the January 1993 NLD National Convention.
43. The Working Group, in its Decision No. 13/1994 declaring
Dr. Khin Sint Aung's detention to be arbitrary, noted that the
Government had failed to specify in what way he failed to
abide by his pledge, what the activities were that led to the
revocation of the amnesty extended to him, and in what way
they constituted a violation of the pledge.
44. The Working Group held that the renewed detention of Dr.
Khin Sint Aung, like the first one, was linked to the fact
that he peacefully exercised his right to freedom of opinion
and expression. Accordingly, the Working Group concluded as
follows: "The deprivation of liberty of Khin Sint Aung is
arbitrary, as being in contravention of articles 9 and 19 of
the Universal Declaration of Human Rights, and falls within
category II of the categories applicable to the consideration
of the cases submitted to the Working Group." The Working
Group consequently requested the Government to take the
necessary steps to remedy the situation, and bring it in
conformity with the standards and principles set forth in the
Universal Declaration of Human Rights. The Working Group
further recommended that the Government take steps to
become a party to the International Covenant on Civil and
Political Rights.
45. With regard to the particular case of Dr. Khin Sint Aung,
the Special Rapporteur wishes to recall the previous reports
of his predecessor, Professor Yozo Yokota, to the Commission
on Human Rights (E/CN.4/1994/57) and (E/CN.4/1995/65) in which
the case was mentioned. When Professor Yokota visited Myanmar
in 1993 and 1994, he personally met Dr. Khin Sint Aung in
Insein prison.
46. In 1993, when Professor Yokota met Dr. Khin Sint Aung, he
was accompanied by the prison warden and his staff and by
photographers. Dr. Khin Sint Aung addressed the Special
Rapporteur in the Burmese language, as he clearly indicated he
had been advised to do, although he had done his medical
training in England and spoke English well. Dr. Khin Sint Aung
told the Special Rapporteur that those who met the Special
Rapporteur would have problems and would be likely to be
sentenced to 10 years' imprisonment. He therefore must be
careful how he answered the Special Rapporteur's questions: if
he answered "wrong", his 20-year prison sentence would become
40 years. He also said that the grounds for his imprisonment
were prescribed by existing laws; information in that regard
could be obtained from the Government. He said he had been
tried in a special court, i.e. not an ordinary court. It was
by his own choice that he did not hire a lawyer because he
wanted to defend himself. He had received his sentence
recently and was intending to appeal through the proper
channels. Dr. Khin Sint Aung indicated that he was treated
well in the prison and had even received a new tooth in his
first week there. In concluding, he repeated that he did not
want to be in prison for 40 years, and so he preferred to say
no more.
47. In 1994, Professor Yokota again met Dr. Khin Sint Aung in
Insein prison. He was not allowed to enter the cell where the
prisoner was kept but he was able to speak to him through the
locked grill of the cell door. The prison warden and several
guards recording the interview were also present, as well as
photographers. The interview was very short and the prisoner
seemed nervous but in good health.
Unlike their meeting in 1993, Dr. Khin Sint Aung
addressed the Special Rapporteur in Burmese and English. In
1993, he had indicated that he intended to appeal through the
proper channels. He now informed Professor Yokota that he had
not appealed but did not give any specific reason why he had
changed his mind. In concluding, he repeated that he would
like from the bottom of his heart to serve a democratic
Government.
48. As the Special Rapporteur has had occasion to observe,
there are laws in Myanmar that criminalize the normal exercise
of basic civil and political rights (see A/51/466, annex,
chaps. III and IV). All the persons convicted or detained
under these laws are, in a true sense, political prisoners.
The SPDC should take urgent steps to have those persons
released by proclaiming a general amnesty.
E. Torture and cruel, inhuman or degrading treatment or
punishment
49. The Special Rapporteur continues to receive numerous
allegations of acts of torture committed by soldiers of the
Tatmadaw. The Special Rapporteur has already reported on some
of these cases in his previous reports to the General Assembly
and the Commission on Human Rights.
50. The Special Rapporteur on the question of torture has
also raised with the Government of Myanmar several cases of
alleged torture. By letter dated 21 February 1997, he informed
the Government of Myanmar about reports indicating that the
Myanmar army still uses torture and ill-treatment against
members of ethnic minorities in Shan and Mon states and in
Tanintharyi division. According to these reports, members of
ethnic minorities are forced to serve as porters for the
army. Any person who cannot carry the required load is
allegedly beaten with bamboo sticks or rifle butts.
Deprivation of food, water, rest and medical care is also
reportedly a common method of punishment.
51. In the same letter, the Special Rapporteur also asked the
Government of Myanmar to reply to allegations that a number of
persons had been beaten by the police during student
demonstrations in Yangon in December 1996.
52. On 25 April 1997, the Government of Myanmar replied to
the Special Rapporteur stating that nobody had been subjected
to violence during the December 1996 student demonstrations.
Concerning the allegations of ill-treatment of porters, the
Government of Myanmar stated that the recruitment of civilian
labour to assist the armed forces is regulated by law and
based on three criteria: the person has to be unemployed;
physically fit to work as a porter; and a reasonable wage has
to be agreed upon before recruitment. Furthermore, according
to the Government, porters were never required to accompany
the troops to the battle scene. They were thus not exposed to
danger (see E/CN.4/1998/38/Add.1, paras. 258-267).
III. THE GENDER PERSPECTIVE
53. In its resolution 1997/64, the Commission on Human Rights
extended the mandate of the Special Rapporteur, as contained
in Commission resolution 1992/58, and requested the Special
Rapporteur to keep a gender perspective in mind when seeking
and analysing information.
54. Gender-specific reporting and analysis entail an
examination of gender as a determining factor in respect of:
(a) the form which a human rights violation takes; (b) the
circumstances in which the violation occurs; (c) the
consequences of the violation for the victim; and (d) the
availability and accessibility of remedies.
55. The term "gender" is used as referring to the socially
constructed roles of women and men in public and private life.
It denotes the significance attached within societies and
communities to sex identity. Historically, different cultures
construct gender in different ways so that women's roles, the
value that their particular society places on those roles, and
the relationship with men's roles may vary considerably over
time and from one setting to another. To varying degrees in
all societies, discrimination against women and their unequal
treatment are systematic and reflected in the structure
and functioning of public institutions, de jure and de facto
family relations, access to economic resources, and legal
systems. It is mainly for this reason that the mere enactment
of appropriate laws is not sufficient to eradicate
iscrimination or inequality on grounds of sex. Other measures,
educational, social and administrative, among others, are
particularly necessary to change societal attitudes and
acceptance of traditional values.
A. International norms
56. The Government of Myanmar is bound by a number of
international conventions and declarations to which it is
party to prohibit discrimination against women and to ensure
the effective enjoyment of their human rights. A general
prohibition against discrimination and unequal treatment is
found in article 2 and 7 of the Universal Declaration of Human
Rights, according to which "everyone is entitled to all the
rights and freedoms ... without any distinction of any kind,
such as race, colour, sex ... ." and "all are equal before the
law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection
against any discrimination in violation of this Declaration
and against any incitement to such discrimination." Articles 2
(1), 3 and 26 of the International Covenant on Civil and
Political Rights contain a similar prohibition. A more
elaborate and explicit prohibition of discrimination against
women in all its forms is found in the Convention on the
Elimination of All Forms of Discrimination against Women.
57. The traffic of women and suppression of prostitution is
regulated in the Convention for the Suppression of the Traffic
in Persons and of the Exploitation of the Prostitution of
Others, signed by Myanmar on 14 March 1956 but not yet
ratified.
58. The Special Rapporteur also recalls the Declaration on
the Elimination of Violence against Women (General Assembly
resolution 48/104). Article 2 prohibits violence against women
(a) in the family, (b) within the general community, and (c)
by the State. Article 1 of the Declaration defines "violence
against women" as "any act of gender-based violence that
results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life".
59. The Special Rapporteur welcomes the ratification by
Myanmar of the Convention on the Elimination of All Forms of
Discrimination against Women. Article 1 of the Convention,
which came into force for Myanmar on 21 August 1997, defines
discrimination against women as "any distinction, exclusion or
restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social,
cultural, civil or any other field". The Union of Myanmar is
required under article 18 of the Convention to submit, within
one year, a report to the Committee on the Elimination of
Discrimination against Women on the legislative, judicial,
administrative and other measures it has adopted to give
effect to the Convention and on the progress made in its
implementation.
60. In the absence of a visit to Myanmar, the Special
Rapporteur is unable to report comprehensively on the
situation of women in situ. The following paragraphs highlight
some legal provisions and other material which the Special
Rapporteur has come across in his work.
61. According to article 22 of the Myanmar Constitution of
1974, which was repudiated by the SLORC in 1988, "all citizens
shall be equal before the law, regardless of race, religion,
status or sex." In addition, in article 154 the following
rights of women are explicitly defined: (a) women shall enjoy
equal political, economic, social and cultural rights; (b)
mothers, children and expectant mothers shall enjoy those
rights as prescribed by law; (c) children born of citizens
shall enjoy equal rights; and (d) women shall enjoy the
freedoms and rights guaranteed by laws as regards marriage,
divorce, division of property, succession and custody of
children. It does not appear that, after the repudiation of
the Constitution, any law, decree, or order of a basic
character has been enacted to guarantee the rights of women
provided in the defunct Constitution.
B. Myanmar women in public life
62. As is the case for men, Myanmar women who become
politically active are harassed and arbitrarily arrested,
especially those who belong to parties or movements in
opposition to the regime. There would not appear to be any
women in the SPDC, in the Cabinet, or in the 14-member
Advisory Group referred to in SPDC Notification No. 3/97 of
15 November 1997.
63 . In the note sent by the Permanent Mission of Myanmar
referred to in paragraph 19 of this report, a number of
meetings of the Central Women's Work Committee are reported to
have taken place in the compound of Daw Aung San Suu Kyi
between 11 and 17 December 1997. This is an indication that
women are active in the political field, at least in
opposition.
C. The situation of refugee women
64. The Special Rapporteur has reported on the situation of
Myanmar refugees and internally displaced persons in his
previous reports. According to testimony received by the
Special Rapporteur, many of the refugees reported about in his
report to the General Assembly (A/52/484) fled in order to
escape forced labour, portering and starvation. The situation
of nursing mothers or women with young children is
particularly harsh. There is no doubt that refugee women,
particularly those on their own, are more vulnerable than men
to exploitation and deprivation of rights at every stage of
their flight. The Special Rapporteur expresses his concern
that, according to information received, the flow of refugees
continues. In late October and early November 1997 Karen
refugees in groups of 50-100 people, mostly women, children
and old people, reportedly entered Ban Letongkhu, Ban Thijochi
and Ban Kuilertor in Umphang, about two kilometres from the
border with Thailand. Myanmar troops had started to round up
and send Karen civilians to a controlled area away from
the border.
D. Women and forced labour
65. In recent years, increasing numbers of women, including
young girls and the elderly, have been forced to work on
infrastructure projects and to act as porters in war zones.
Such uncompensated forced labour continues despite Myanmar's
ratification of ILO Convention No. 29 Concerning Forced or
Compulsory Labour. The Special Rapporteur has on several
occasions reported on the use of forced labour for various
development and infrastructure projects. In these projects
women are not spared forced recruitment, even when they are
pregnant or nursing their infants. Those who are too weak for
the strenuous work have to hire another person or face a fine.
On the work site, the forced labourers do not receive
appropriate medical treatment. Further, they are reported to
receive no remuneration and have to provide their own
food. While away the women cannot work on their farms, which
results in food shortages for the family. On the work site
women, like men, risk exhaustion, accidents and lack of
medical treatment. They are also victims of many other serious
human rights violations, such as beatings, rape and murder.
66. The Special Rapporteur has on more than one occasion
reported on forced portering. As porters women are more
vulnerable than men, since they have been reported to have
been used as (a) forced labour to work as porters; (b) human
shields; and (c) entertainment for soldiers, which often ends
in rape. For instance, on 8 June 1997, SLORC troops from
Murngpan allegedly arrested 17 villagers (10 men and 7 women)
at Ter Hung village and forced them to carry military supplies
from Kaeng Twang area to Murngpan. When they reached Murngpan,
the men were released while the women were detained. During
the night all the women were reportedly gang-raped before
being released the next morning.
67. The Special Rapporteur is concerned that real access to
the justice system by the victims is virtually non- existent.
IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
68. The Special Rapporteur regrets that, in spite of his
continuing efforts to obtain the authorization of the
Government of Myanmar to visit the country and in spite of the
encouraging statements made by the Permanent Representative of
Myanmar, both in the Commission on Human Rights and the
General Assembly, he has not so far obtained any response. In
this regard, the criticism levelled by the authorities against
the reports of the Special Rapporteur is, in large part, based
on the ground that the reports rely on information received
from outside the country and do not reflect the actual
situation in Myanmar. It stands to reason that, if the General
Assembly and the Commission are to benefit from an assessment
of that criticism, the agreement of the Myanmar authorities to
a visit by the Special Rapporteur is essential.
69. The Special Rapporteur has observed the beginnings of a
positive attitude with respect to the easing of restrictions
on political parties, especially in relation to the activities
of the NLD and its right to hold meetings. This change on the
part of the authorities is welcome. However, it would appear
that this change is of a purely formal and limited nature
given the virtually complete control which the authorities
seem to exercise on the freedoms of association, assembly and
expression. The Special Rapporteur notes that the absence
of respect for the rights pertaining to democratic governance
continues to be at the root of all the major violations of
human rights in Myanmar insofar as this absence is inherent in
a power structure which is autocratic and accountable only to
itself, thus resting on the denial and repression of
fundamental rights. The Special Rapporteur concludes that
genuine and enduring improvements in the situation of human
rights in Myanmar cannot be attained without respect for the
rights pertaining to democratic governance. In this regard, he
notes with particular concern that the electoral process
initiated in Myanmar by the general elections of 27 May 1990
has still, after seven years, to reach its conclusion and that
the Government still has not implemented its commitment to
take all necessary steps towards the establishment of
democracy in the light of those elections.
70. On the basis of his examination of the situation of human
rights in Myanmar over the past year, the Special Rapporteur
has unfortunately come to the general conclusion that, except
for the apparent easing of restrictions on political
activities as referred to in paragraph 69, there has been no
change in that situation since his last report to the General
Assembly and to the Commission on Human Rights. The
resolutions of the General Assembly and of the Commission have
gone largely unheeded by the Government of Myanmar. The result
is that the conclusions of the Special Rapporteur as contained
in his reports to the General Assembly at its fifty-second
session (A/52/484, annex, paras. 143-151) and the Commission
on Human Rights at its fifty-third session (E/CN.4/1997/64,
paras. 101-107) remain substantially the same, except for the
fact that, according to certain reports, a meeting took place
in mid-July 1997 between a representative of SLORC and an
official of the NLD. There have been suggestions that the
substance of those discussions was political in character but
the Special Rapporteur has no concrete information in this
regard.
71. The well-documented reports, photographs and testimonies
received by the Special Rapporteur lead him to conclude that
extrajudicial, summary or arbitrary executions, the practice
of torture, portering and forced labour continue to occur in
Myanmar, particularly in the context of development programmes
and of counter-insurgency operations in minority-dominated
regions.
72. With regard to arbitrary arrest and detention, the
Special Rapporteur does not doubt that such violations take
place on a wide scale if for no other reason than that an
examination of the laws in place show that such violations are
legal and may easily occur. At the same time, the absence of
an independent judiciary, coupled with a host of executive
orders criminalizing far too many aspects of normal civilian
conduct, prescribing enormously disproportionate penalties and
authorizing arrest and detention without judicial review or
any other form of judicial authorization, leads the Special
Rapporteur to conclude that a significant percentage of all
arrests and detentions in Myanmar are arbitrary when measured
by generally accepted international standards. In this regard,
the Special Rapporteur expresses his deep concern at the
continued detention of many political prisoners, in particular
elected representatives, and the continuing arrests and
harassment of supporters of democratic groups in Myanmar.
73. Because of both visible and invisible pressures, the
people of Myanmar live in a climate of fear in which whatever
they or their family members may say or do, particularly in
the exercise of their political rights, involves the risk of
arrest and interrogation by the police or military
intelligence. The Special Rapporteur notes that NLD leaders
cannot assemble in a group, cannot freely discuss, and cannot
publish or distribute printed or video material. In this
situation it is difficult to assume that open discussion and
free exchanges of views and opinions can possibly take place
in Myanmar, unless they are in support of the military regime.
74. Turning to freedom of movement and residence in Myanmar,
including the right to leave and re-enter one's own country,
the Special Rapporteur concludes that there are clear
violations of those freedoms in both law and practice.
Specifically, severe, unreasonable and, in the case of the
Muslim Rakhine population, racially based restrictions are
placed on travel inside the country and abroad. On the matter
of internal deportations and forced relocations, the Special
Rapporteur concludes that the Government's policy violates
freedom of movement and residence and, in some cases,
constitutes discrimination based on ethnic considerations.
75. In his report to the General Assembly, the Special
Rapporteur analysed the laws relating to citizenship and their
effect on the exercise of civil and political rights. He
raised serious questions of the consistency of those laws with
generally accepted international norms, since those laws
appear to be discriminatory on the basis of ethnicity, fail to
ensure equality before the law, and do not provide special
measures of protection to which children are entitled. In the
short term, this situation produces serious violations of the
rights of both minorities and other persons living in the
country as well as a sense of not belonging to Myanmar. In the
long term, the situation is likely to discourage a sense of
national unity and to encourage and exacerbate secessionist
movements likely to be destructive of a multi-ethnic and
multi-religious nation. Sheer repression following efforts at
ceasefire agreements would not appear to be the answer.
76. The Special Rapporteur welcomes the ratification by
Myanmar of the Convention on the Elimination of All Forms of
Discrimination against Women in 1997. In this regard, he hopes
that the Government of Myanmar will also ratify the Convention
for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others, signed by Myanmar
on 14 March 1956.
B. Recommendations
77. In the light of the foregoing conclusions, the Special
Rapporteur submits the following recommendations.
78. To ensure that the institutions of government genuinely
reflect the will of the people, in conformity with article 21
of the Universal Declaration of Human Rights, steps should be
taken to allow all citizens to participate freely in the
political process, in accordance with the principles of the
Universal Declaration of Human Rights, and to accelerate the
process of transition to democracy, in particular through the
transfer of power to the democratically elected
representatives. The institutions of the Union of Myanmar
should be such as to ensure that the executive authorities are
accountable to the citizenry in a clear and meaningful way.
Furthermore, steps should also be taken to restore the
independence of the judiciary and to subject the executive to
the rule of law and render unjust and unjustifiable actions
justiciable.
79. All necessary measures should be taken to accelerate the
process of transition to a democratic order and to involve in
a meaningful way in that process the representatives duly
elected in 1990. In this regard, genuine and substantive
discussions should take place without further delay between
the present military regime and the leaders of the National
League for Democracy and with other political leaders who
were duly elected in the democratic elections of 1990,
including representatives of the ethnic minorities. Certain
steps taken in July 1997 by the SLORC, and in December 1997 by
the SPDC, to initiate such discussions are a welcome and
positive development, but one which requires to be
intensified. The SPDC should do all it can to ensure
that the character and substance of the discussions are
genuine and are perceived to be so by all the participants and
the people generally. In addition, political parties should be
free to decide the composition of their own delegations for
the purposes of the dialogue.
80. Immediate measures should be taken to put an end to the
harassment of the leaders and the members of the National
League for Democracy, to ensure that the General Secretary of
the National League for Democracy is genuinely free and able
to exercise her functions without fear of attack, and to
ensure that all political parties are able freely to
carry out their activities. In other words, the present
embargo or recess on the exercise of political rights, which
is rigidly enforced by exceptional legal and administrative
machinery, should be ended. Political "détente" should replace
the political embargo by way of a general amnesty or
otherwise.
81. All political detainees, including elected political
representatives, students, workers, peasants and others
arrested or detained under martial law for the exercise of
their normal civil and political rights after the 1988 and
1990 demonstrations or as a result of the National Convention
should be immediately released. The Government should also
ensure that there are no acts of intimidation, threats or
reprisal against them or their families and should take
appropriate measures to compensate all those who have suffered
arbitrary arrest or detention.
82. Constitutionality and the rule of law should be
re-established and orders and decrees should no longer be the
basis of law. All laws rendering violations of human rights
legitimate should be repealed urgently and all laws should be
given due publicity. The laws in Myanmar should be brought
into conformity with international standards regarding the
rights relating to protection of physical integrity, including
the right to life, protection against disappearance,
prohibition of torture and cruel, inhuman or degrading
treatment, providing humane conditions for all persons under
detention and ensuring the minimum standards of judicial
guarantees.
83. Particular attention should be given to conditions in the
country's prisons and all the necessary steps taken to allow
international humanitarian organizations to have access
thereto and to communicate freely and confidentially with
prisoners.
84. Urgent steps should be taken to facilitate and guarantee
the enjoyment of the freedoms of opinion, expression and
association, in particular by decriminalizing the expression
of opposition views and by relinquishing government controls
over the media and literary and artistic works.
85. Restrictions relating to the entry and exit of citizens
into and out of the country, as well as their movement within
the country, should be abolished.
86. All discriminatory policies which interfere with the free
and equal enjoyment of property should cease and adequate
compensation should be paid to those who have been arbitrarily
or unjustly deprived of their property.
87. The Government of Myanmar should fulfil its obligations
under ILO Convention No. 87 concerning Freedom of Association
and Protection of the Right to Organize of 1948. In compliance
with this Convention, it should guarantee by law the right of
trade unions to exist and operate freely. In that respect, the
Government of Myanmar is encouraged to cooperate more closely
with the ILO through a technical cooperation programme so that
the very serious discrepancies between the law and the
practice on the one hand, and the Convention on the other
hand, are eliminated urgently.
88. The Government of Myanmar is urged to comply with its
obligations under ILO Convention No. 29, prohibiting the
practice of forced labour. In this connection, the Government
of Myanmar should urgently take the appropriate measures to
repeal the offending legal provisions under the Village Act
and the Towns Act to halt the practice of forced labour. The
Government of Myanmar is encouraged to cooperate with the
Commission of Inquiry established by the ILO.
89. Urgent steps should be taken to put an end to the
enforced displacement of persons and to create appropriate
conditions to prevent the flow of refugees to neighbouring
States. In the event that the relocation of villagers becomes
necessary in circumstances which are in conformity with
international norms, proper consultations should take place
with the villagers, including the payment of appropriate
compensation, reviewable by independent courts, and the
taking of measures to ensure that food, housing facilities,
proper medical care and social amenities, including
appropriate arrangements for the education of children, are
provided in adequate measure in the interest of the displaced
persons.
90. The Government of Myanmar should refrain from actions
which contribute to insecurity affecting the population, such
as the use of military force and bombardments against civilian
targets along the border with Thailand. In this regard, given
the great number of allegations of summary or arbitrary
executions and other grave human rights violations,
particularly in areas where ethnic minorities live or to
which they are being forcibly displaced, it is of the utmost
importance that the new government conduct a high-level
inquiry with broad terms of reference, specifically to gauge
the extent of the violations and to propose remedial measures.
91. In order to promote repatriation of the Myanmar Muslims
and other minorities, the Government should create the
necessary conditions of respect for their human rights. The
Government should ensure, in law and in practice, their safe
return and resettlement in their villages of origin. To this
end, it should also promote their complete civil, political,
social, economic and cultural participation in Myanmar without
restriction or discrimination.
92. The laws relating to citizenship should be revised in
order to ensure that they have no unfavourable incidence on
the exercise of civil and political rights and to be
consistent with generally accepted norms. In particular these
laws should be substantially revised so as to remove all
discriminatory features based on ethnicity, legal status
and adverse impact on the right of children to have a
nationality. Further, necessary measures should be adopted by
the administration to ensure that citizenship can be obtained
without burdensome and unrealistic administrative procedures
and requirements. These laws should also be brought into
conformity with the principles embodied in the 1961 Convention
on the Reduction of Statelessness. Consideration should also
be given by Myanmar to ratify that Convention as well as the
1951 Convention relating to the Status of Refugees and its
1967 Protocol.
93. Military and law enforcement personnel, including prison
guards, should be thoroughly trained and informed as to their
responsibility to treat all persons in full accordance with
international human rights norms and humanitarian law. Such
standards should be incorporated in Myanmar law, including the
new constitution to be drafted.
94. Given the magnitude of the abuses, the Government should
subject all officials committing human rights abuses and
violations to strict disciplinary control and punishment and
put an end to the culture of impunity that prevails at present
in the public and military sectors.
95. The Government of Myanmar is urged to fulfil in good
faith the obligations it has assumed under Articles 55 and 56
of the Charter of the United Nations to take joint and
separate action in cooperation with the Organization for the
achievement of universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as
to race, sex, language or religion. In this respect, the
Special Rapporteur wishes to encourage the Government of
Myanmar to adopt, as one of the basic constitutional
principles, the provisions of the Universal Declaration of
Human Rights, a copy of which should be made widely available
in the main languages spoken in Myanmar.
96. The Government of Myanmar should consider accession to
the International Covenants on Human Rights, the Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and the two Protocols Additional to
the Geneva Conventions of 1949. In the meantime, it should
ensure that the principles proclaimed in those international
instruments are applied, in order to evidence a firm
commitment to the promotion and protection of human rights
without discrimination of any kind.
97. The Government of Myanmar should take early steps to
amend all existing laws, orders or decrees in order to ensure
that its international obligations with regard to the rights
of women are effectively implemented, including by the
adoption of administrative and other measures as well as the
allocation of sufficient funds. In addition, in the drafting
of a new constitution, steps should be taken to ensure that
the rights of women with regard to equality and non-
discrimination are guaranteed by the enactment of basic
provisions.
Copyright 1998
Office of the United Nations High Commissioner for Human
Rights, Geneva, Switzerland
************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
UNITED NATIONS
Economic and Social Council
Distr. GENERAL
E/CN.4/1999/35
22 January 1999
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty fifth session
Item 9 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS IN ANY PART OF THE WORLD
Situation of human rights in Myanmar
Report of the Special Rapporteur, Mr. Rajsoomer Lallah, submitted in
accordance with Commission on Human Rights resolution 1998/63
CONTENTS
Paragraphs
Introduction 1
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR 2 - 7
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS 8 - 24
A. Measures adversely affecting democratic governance 8 - 19
B. Prison conditions 20 - 24
III. MISSION TO THAILAND 25 - 72
A. The problem of displacement 27 - 29
B. The main cause of displacement 30 - 53
C. Patterns and consequences of displacement 54 - 72
IV. CONCLUSIONS AND RECOMMENDATIONS 73 - 83
A. Conclusions 73 - 79
B. Recommendations 80 - 83
Introduction
1. The present report is submitted pursuant to paragraph 5 of Commission
on Human Rights resolution 1998/63, adopted without vote on 21 April 1998,
in which the Commission on Human Rights requested the Special Rapporteur to
submit a report at its fifty fifth session.
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
2. The Special Rapporteur wishes to recall that, since his appointment in
June 1996, he has yet to be allowed by the Government of Myanmar to see the
situation on the ground, despite the repeated requests of the General
Assembly and the Commission on Human Rights that he have direct access to
the Government and people of Myanmar.
3. In the meantime, the Special Rapporteur, through his missions and
consultations, has received much assistance and information from
governmental, intergovernmental and non-governmental sources. He has
further received information from individuals who have personal knowledge
of the situation in Myanmar. He has also received several well-documented
reports describing the situation in Myanmar, particularly in relation to
the matters over which the General Assembly and the Commission on Human
Rights have expressed concern.
4. The Special Rapporteur submitted an interim report (A/53/364, annex)
to the General Assembly at its fifty-third session.
5. While at Headquarters to present his report, the Special Rapporteur
met with several representatives of Governments and non-governmental
organizations and also private individuals who imparted their views and
information on the situation of human rights in Myanmar.
6. In his continuing effort to obtain the most accurate and up-to-date
information on the situation of human rights in Myanmar, the Special
Rapporteur visited Thailand in December 1996 to assess that situation in
the light of information gathered from newly displaced persons from Myanmar
living in refugee camps along the Thai-Myanmar border. The findings of the
mission are reflected in section III of this report.
7. The present report is based upon information received by the Special
Rapporteur through 31 December 1998. The report is to be read in
conjunction with the Special Rapporteur's report to the General Assembly;
it updates certain matters discussed before the General Assembly while
treating some issues not addressed there.
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS
A. Measures adversely affecting democratic governance
8. In his report to the fifty-first session of the General Assembly
(A/51/466), the Special Rapporteur stated that the repressive political
climate in Myanmar since 1990 had made it virtually impossible for
opposition parties to function and they had been severely hampered through
constant repression and arrests, with a number of members of Parliament in
prison and others in exile. Two years later, the Special Rapporteur
continues to receive reports indicating that in Myanmar political parties
in opposition continue to be subjected to intense and constant harassment by the regime with a view to restricting their activities.
9. This harassment and the arrests increased during September 1998 when
200 representatives of the National League for Democracy (NLD) and elected
representatives from various constituencies and more than 650 party members
were arrested by the authorities following NLD's attempts to convene a
parliament comprising representatives of the country's various ethnic
groups in accordance with the results of 1990 general election.
10. On 6 October 1998, the United Nations High Commissioner for Human
Rights issued a press release in which she stated the following:
"I have been following with increasing concern the intensification of
repression against Myanmar's political opposition over the last
few weeks. Recently, over 200 members of the National League for
Democracy (NLD) have been arrested or detained, while NLD leader Aung San
Suu Kyi has been subjected to repeated harassment. Further, conditions of
detention in the country fall far short of international standards, and a
number of prisoners are reported to have died while in custody.
"It is clear from the Commission of Inquiry established by the
International Labour Organization that forced labour continues in
Myanmar. Meanwhile, there also appears to be an official policy of forced
displacement of ethnic minorities, which has resulted in large numbers of
internally displaced and refugees in neighbouring countries.
"I raised these issues with the Foreign Minister of Myanmar, U Ohn Gyaw,
during a meeting in New York on 23 September but received no satisfactory
response. I take this opportunity to call on the Government of Myanmar to
guarantee the rights of freedom of movement and association of all citizens
and to accelerate the process of national reconciliation leading to the
enjoyment of all human rights. I hope the people arrested or detained for
political reasons will be released and allowed to express freely their
views and opinion and demonstrate peacefully.
"I urge the Government to establish a constructive dialogue with the
United Nations system, including the human rights mechanisms, in the
effective promotion and protection of human rights in the country.
Regrettably, the authorities have failed to respond to consistent requests
to allow the Special Rapporteur on the situation in Myanmar, Rajsoomer
Lallah, to conduct a field mission. I reiterate my support for Mr.
Lallah's efforts to fulfil his mandate and again request the Government to
cooperate with him and allow him to have direct contacts with the people of
Myanmar."
11. On 7 October 1998, one day following the High Commissioner's
statement, the State Peace and Development Council (SPDC) continued its
policy of restricting the legitimate activities of members of political
parties by arresting 54 NLD members. According to a statement made the
same day by Myanmar authorities, the 54 persons were distributing leaflets
calling for the convening of the parliament and support for the NLD.
According to the authorities, these groups were also in collusion with
illegal organizations within the country and abroad.
12. On the same day, the High Commissioner for Human Rights issued a
second statement stating the following:
"The latest detentions of opposition activists in Myanmar are very
worrying, indicating that the Government continues to ignore basic human
rights standards and the concern of the international community.
"Yesterday I deplored the intensifying wave of repression against Myanmar's
political opposition. I reiterate in the strongest possible
terms my call to the Government of Myanmar to release all political
prisoners and to guarantee its citizens all fundamental human rights.
I also urge the Government to undertake a process of reconciliation with
the opposition and to cooperate fully with the human rights
mechanisms of the United Nations."
13. On 23 October 1998, the Chairman-Rapporteur of the Working Group on
Arbitrary Detention together with the Special Rapporteur on torture of the
Commission on Human Rights addressed a letter to the Minister for Foreign
Affairs of Myanmar in which they referred to the specific case of Dr. U Saw
Mra Aung. The letter states the following:
"We wish to draw Your Excellency's attention to information we have
received concerning the situation of Dr. U Saw Mra Aung, an 80-year old
medical doctor and an elected member of Parliament, who was allegedly
arrested on 6 September 1998. In view of his old age, the source is
particularly concerned about his health while in detention.
It is also reported that on 7 October 1998, the State Peace and Development
Council announced that 54 people had been arrested in connection with a
conspiracy to 'incite unrest' by members of the National League for
Democracy and students said to be allied with foreign organizations. It is
alleged that some of those detained before the 7 October press conference
were severely beaten during interrogation, and that they may not be
receiving such medical assistance as they might require as a result."
14. On 3 December 1998, the Permanent Representative of Myanmar to the
United Nations Office at Geneva responded to the letter by stating the
following:
"I have since been informed by the authorities concerned in Myanmar that
the person under reference in your communication, Dr. Saw Mra Aung, was not
arrested as alleged. He is comfortably accommodated at the government
guest house where he is accorded due courtesy and respect. Dr. Saw Mra
Aung has unlimited access to his family. On 26 October 1998 and again on
10 November 1998 he was chauffeured to his residence for overnight reunions
with his family."
15. Myanmar officials claimed in numerous interviews and press statements
that the elected members of Parliament and other NLD members were not
arrested but were instead called for questioning and were treated as guests
in government gust houses. In a news briefing held in Yangon on 22
November 1998, Lieutenant Colonel Hla Min stated that "arrangements were
made for NLD party members and elected representatives from various
constituencies to take up temporary residence at State guest houses in
their respective areas from 6 September onwards. A total of 200 NLD
representatives and 651 party members were included in these arrangements."
16. According to the same article, 63 NLD representatives and 321 party
members who undertook not to participate in such "illegal activities" were
returned to their homes. However, the Special Rapporteur has no
information on the fate of the remaining over 400 NLD representatives and
party members, their place of custody and health situation.
17. Since November 1995, when the NLD leaders withdrew from the National
Convention, there has been increasing harassment of the party by the
military regime, including arrests of hundreds of party members over the
last six months. In December 1998, almost all of the members of the
organizing committees in the states, divisions, townships, wards and
villages have been taken into custody illegally for no apparent reason and
they are unable to fulfil their obligations and duties. Most of these
elected parliamentarians have added responsibilities as either chairman or
secretary of the organizing committees in the townships. The Special
Rapporteur observes that the SPDC is illegally arresting and detaining
numerous members of the NLD, including elected representatives who have in
no way violated any law. The Special Rapporteur further wishes to note
that keeping people in so-called "guest houses" against their will or under
the threat that their detention will continue unless they desist from
political activities or abandon membership of the party or of their seat in
Parliament is no more than a euphemism for arbitrary imprisonment in
violation of article 9 of the Universal Declaration of Human Rights, as
more fully elaborated in article 9 of the International Covenant on Civil
and Political Rights.
18. Aside from the arbitrary arrests, NLD members have been subjected to
intense and systematic harassment. It is reported that over the last six
months, members of the party have been constantly intimidated by local
authorities as well as by armed forces personnel. Their houses are under
constant surveillance. Many members of political parties have reportedly
been evicted from State owned apartments where they had lived for many
years. The harassment of the NLD and the pressure under which its members
are living have led some of them to resign. Such resignations are
publicized in the Government-controlled newspaper, New Light on Myanmar.
As a further form of harassment, a concerted effort was made by local
authorities to remove all signs of an NLD presence on main roads or at any
place where they might be exposed widely to the public. As a result of all
these repressive measures, virtually all the branch offices are closed.
19. The resignations of NLD members and closures of NLD offices are
widely disseminated in the media, in terms that are almost identical in
nature and matter except for the particulars regarding the address,
department, and number of people. The following are some examples:
"It has been learned that the entire township Executive Committee [EC] and
members of the National League for Democracy [NLD] party of Ponnagyun
Township [in Arakan State] have resigned and the township branch of the NLD
was dissolved at their own request on 16 October 1998."
Source: Rangoon TV Myanmar Network in Burmese, 1330 GMT, 11 November 1998.
"It has been learned that the Executive Committee [EC] members and all
members of Minbya Township National League for Democracy [NLD] in Arakan
State have tendered their resignations and dissolved the township NLD out
of their own volition on 11 November 1998."
Source: Rangoon TV Myanmar Network in Burmese, 1330 GMT, 25 November 1998.
"All members of the Executive Committee [EC] of the National League for
Democracy [NLD] in Kyunhla Township, Sagaing Division, have resigned of
their own volition and disbanded the NLD office in Kyunhla on 27 November
[1998]."
Source: Rangoon TV Myanmar Network in Burmese, 1330 GMT, 3 December 1998.
"All Executive Committee [EC] members of Mong Yawng Township National
League for Democracy [NLD] in Eastern Shan State resigned from the party
and the township office of the NLD was dissolved on 30 November."
Source: Rangoon Radio Myanmar in Burmese, 1330 GMT, 9 December 1998.
B. Prison conditions
20. The current Special Rapporteur has not been able to visit Myanmar.
Given the fact that the former Special Rapporteur was denied access to
prison cells and could not meet with any detainee while visiting Myanmar,
and given the fact that the Government of Myanmar rejected the
International Committee of the Red Cross (ICRC) standard requirements for
visits to places of detention (i.e. that it meet prisoners in private, have
access to all prisons and be assured of repeat visits), the Special
Rapporteur can only rely on the complaints of former detainees such as
those with whom he met while in Thailand in the course of his recent visit.
The testimonies gathered from three former detainees strongly indicate
that Myanmar authorities are unwilling to open their jails to public
scrutiny and that prison conditions fall far below minimum international
standards established by the United Nations.
21. Prisoners are said to be denied adequate food (in amount and quality)
and health care, to be housed in unsanitary and degrading conditions and
subjected to cruel disciplinary practices or torture.
22. Numerous allegations, often in considerable detail, have been
received alleging that members of the Myanmar military, intelligence and
security services and police continue to torture persons in detention or
otherwise subject them to cruel, inhuman or degrading treatment and
punishment. Such treatment seems to be routinely employed during the
interrogation of persons who have been arbitrarily arrested. Many former
political detainees testified to having been put into leg irons and beaten
with canes, sometimes to the point of unconsciousness. Testimonies from
reliable sources indicate that detainees are very often forced to sleep on
cold cement, and that many of them suffer from sickness and serious
diseases. Cells are often overcrowded and prisoners are provided with
inadequate hygiene or medical care.
23. Bribery and corruption are said to be a major problem in Myanmar
prisons. Although families can bring food and medicines to their
relatives, such supplies are reportedly often confiscated by the prison
authorities.
24. The Special Rapporteur was told that hundreds of prisoners have been
forced to work under extremely harsh conditions on infrastructure projects
without being released at the completion of their duties. It has also been
alleged that convicts are taken from prison to serve as porters, often
shortly before their sentences are to expire, and then forced to work under
very poor conditions long after they should have been released from prison.
Apparently, prisoners can avoid going to such camps if they pay large
bribes to the prison authorities. Persons released from prison stated that
during their detention they were not allowed to have any reading material,
including the State-run newspaper, or material with which to write, or
non-political literature; they were reportedly also denied access to
radios.
III. MISSION TO THAILAND
25. The Special Rapporteur has previously addressed the situation in the
ethnic minority States, especially those along the Myanmar/Thai border, in
his reports to the General Assembly (A/51/466, annex, paras. 37-51 and
A/52/484, annex, paras. 69 142) and to the Commission on Human Rights
(E/CN.4/1997/64, paras. 65-100). His initial concern related to reports of
military attacks and looting on civilian settlements, forced relocation of
the ethnic groups, forced labour for development and industrial projects
and portering for military operations. In his last report to the
Commission on Human Rights, the Special Rapporteur called upon the
Government of Myanmar to take immediate steps in order to put an end to the
forced displacement of persons, to prohibit the practice of forced labour
and forced portering and to prevent arbitrary killings, and confiscation of
property in the ethnic minority areas.
26. The Special Rapporteur visited Thailand in order to inquire into the
current situation of the displaced persons on the border of Myanmar with
Thailand, and on the human rights violations committed against ethnic
minorities and others who had been subjected to various forms of repression
by the Government. The itinerary of the Special Rapporteur included
Bangkok, Kanchanaburi, Mae Sot, Chiang Mai, Mae Hong Son and camps in the
Tak province with large populations of displaced persons. During these
visits he was received by representatives of the Thai authorities and met
with representatives of international non governmental organizations and
representatives of several ethnic groups. During his visit, the Special
Rapporteur received the testimonies of a total of 50 persons selected from
among newly arrived persons from Myanmar, mostly Karen, Shan and Karenni.
The information and views obtained in the course of his visits are
reflected below under the relevant subject headings.
A. The problem of displacement
27. Internal displacement in Myanmar represents a particular case of
human tragedy resulting from conflict between the Government and different
ethnic groups. It is estimated that over half a million displaced
persons, living in Mon, Karen, Shan and Karenni States, are in need of
humanitarian assistance. Since the independence of Myanmar in 1948, the
country has suffered from unresolved conflicts between most of the ethnic
minorities and the central authorities in spite of a number of ceasefire
agreements. These conflicts precipitated insurgencies in several parts of
the country which have resulted in large numbers of internally displaced
persons and a considerable number who have sought refuge in neighbouring
countries, particularly Thailand, Bangladesh and India.
28. The Special Rapporteur is not in possession of independently verified
statistics on the number of displaced persons in Myanmar, but local and
international NGOs estimate the number in Karen State to be between 100,000
and 200,000. Unofficial estimates place the current number in Shan State
to be over 300,000 and in Karenni State, 70,000. Finally, there are
reportedly about 40,000 persons displaced in Mon State.
29. By the end of June 1998, the refugee camp caseload of displaced
persons from Myanmar living in Thailand was 112,841. The breakdown by
ethnic group was as follows: 86,823 Karen, 12,665 Mon, 13,353 Karenni. In
addition, there were a number of Shan displaced persons who were not living
in refugee camps but were scattered mainly throughout the north of
Thailand. It is generally believed that tens of thousands of people from
Myanmar have entered Thailand during the last three years.
B. The main causes of displacement
30. The problem of displacement in Myanmar is complex and open to so many
different interpretations that a comprehensive assessment is difficult. The
causes of displacement are numerous and differ from one region to another,
although certain common features and trends can be discerned.
31. The role of the army, in this context, is paramount. Since
independence, it has exercised a strong influence over the governing of the
ethnic states. Many Karen, Karenni and Shan do not perceive the army as a
national army, and soldiers, particularly ethnic Burmese, generally behave
towards the local population as if they were enemies.
32. Violence against civilians would appear to have been a fundamental
component of the overall military strategy of the Myanmar army. That
strategy is designed first to secure resources from the local population,
in particular food, combatants and workers, and second to weaken the
resource base of insurgent groups and their capacity to govern. To this
latter end, the army not only has undertaken systematically to destroy most
of the villages but also, as the local economy is largely based on
agriculture, forcibly to displace the rural population so as to disrupt
agricultural production.
33. In flagrant violation of the basic rules of humanitarian law,
civilians living in rural settlements have been attacked. In some cases,
this has resulted in massacres, in others in disorderly flight to safety,
often separating families. Those who are captured are often subjected to
rape and arbitrary killing, or are held captive to grow food for the army,
or made to provide forced labour or portering for the army.
34. After these general observations, it is appropriate to specify the
main causes of displacement. These are counter insurgency operations,
forced labour and portering restrictions on farmers and land confiscation.
Each is discussed separately below. Displacement is also attributed to
major development projects undertaken by the Government in the process of
which large numbers of persons are removed from the lands designated for
the projects without being assisted in relocation or being appropriately
compensated.
1. Counter insurgency operations
35. Counter insurgency operations by the army have had an important
impact on the displacement of the population, both with regard to the
number of persons displaced and the methods employed. These operations
have also contributed to the massive uprooting of the rural population by
deliberately relocating large numbers of civilians from numerous villages
as part of the military strategy against the insurgents. Despite a number
of ceasefire agreements signed by the Government and representatives of
ethnic groups, the army is still engaged in counter-insurgency operations
in Karen, Shan and Karenni States.
36. Although the practice of forced relocations by the military as a
means of controlling the population in the ethnic regions is not new, the
scale of the relocations increased significantly after 1996. The victims
of displacement are mostly peasants, including members of ethnic groups
such as the Karen, Karenni, Shan and Mon, who live in areas of insurgency
and are victimized by counter-insurgency activities or are caught in the
crossfire between the army and the insurgents.
37. Numerous testimonies received by the Special Rapporteur indicate that
the civilian population living in or near the combat zone is generally
forced to move: in these "grey zones" (zones controlled or influenced by
the insurgents) the armed forces often resort to searches, destruction and
burning of houses, and confiscation of property and food to force the
people to move, temporarily or permanently. Testimonies indicate that no
distinction between insurgents and non-combatants is generally made and
that the inhabitants of these zones are subjected to indiscriminate
torture, beatings and arbitrary arrests by the army.
38. In order to cut the main links between the insurgent groups and the
civilian population, entire communities living in the border area between
Myanmar and Thailand are moved to relocation sites which are subject to
strict military control. Expulsion orders are issued by the army coupled
with the warning that anyone trying to remain in their homes will be shot
on sight.
39. The following information provided to the Special Rapporteur is
illustrative of the widespread recourse to forced relocation and the
consequent violation of most basic rights. Central Shan State has
witnessed one of the largest forced relocation programmes, which still
continues. From March 1996 the army has ordered village after village in
eight townships (Larng Kher, Murng Nai, Nam Zarng, Lai Kha, Murng Kerng,
Kun Hing, Ke See and Murng Su) to move to a total of 45 relocation sites.
The estimated number of people relocated is over 100,000 from over 600
villages. When relocated, the population is left to fend for itself to
find work, food and sanitary and education facilities. In Karenni State,
throughout June and July 1996, orders were given to more than 100 villages
located between the Pon and Salween Rivers instructing villagers to move to
relocation sites near army camps in Sha Daw and Ywa Thit townships. The
estimated number of people affected was 20,000-30,000, most of them ethnic
Karenni. The army's purpose is apparently to isolate the population in
that area from Karenni insurgents of the Kayinni National Progressive Party
(KNPP). Army officers are reported to have warned that those who remained
in the deserted villages would be considered insurgents or "enemies".
40. In addition to displacement caused by deliberate action, many persons
are said to have left for fear of being attacked when the military fronts
move close to their places of residence. To avoid losing their homes and
sources of livelihood, many communities have resisted displacement as long
as possible and have developed different strategies for survival. Several
displaced persons living in camps in Thailand described to the Special
Rapporteur how people in their village would hide in the forest and return
when it was safe to tend to their farms. As the situation worsened, many
families fled the village. Since fighting was spreading to different parts
of the district, they did not know where to go to find shelter and after
one week they returned. The village was finally attacked and the houses
destroyed.
2. Forced labour and portering
41. The second reason has to do with the particular phenomenon of forced
conscription of civilians into compulsory labour duties for the military
authorities. No pay is given for such labour and the period of service can
last for months. This practice disrupts family life and prevents people
from carrying on their daily work in order to earn a living.
42. The Special Rapporteur received reports that villagers throughout
Shan State are being forced by the SPDC to work without payment. The
people most seriously affected are those who have been forcibly relocated,
as they have been forced to leave their land and become wage labourers and
thus cannot afford to work without pay for the military.
43. It is common practice for the military to force villagers to go and
work on military bases, either for constructing or maintaining barracks,
bunkers or fences, or performing menial tasks like cleaning, weeding, and
fetching firewood or water. Even children are forced to do this kind of
work: on 29 May 1998, SPDC troops are reported to have forced 10-15 boys
between the ages of 14 and 16 to work at the military bases of LIB 524 and
IB 246. They were not fed, and were even beaten up by the soldiers.
44. The Special Rapporteur has received reports that villagers are being
forced to grow food for the army. In June 1998, villagers in Kengtung are
reported to have been forced by the SPDC to grow chili peppers, beans and
garlic on land that was confiscated from them. And on 11 July, SPDC base
LIB 102 apparently ordered the civilian population to provide labourers for
weeding soya bean and corn farms owned by the military in Murng Pan. Ten
persons from each village, from some 15 villages each day, had to bring
their own food and tools. Villagers of Kengtong, Murng Nai, said they had
been forced in September 1998 to plant yellow beans for the army, then tend
the plots and do weeding and fencing for troops at local bases.
45. Throughout 1998, The Special Rapporteur received reports of villagers
from Murng Pan, Larng Khur, Murng Nai, Murng Ton and Nam Zarng being forced
to work for the army for periods of up to two weeks splitting rocks near
the Salween River crossing of Ta Sarng in Shan State. The battalions
concerned were IB 225, IB 64, IB 65 and LIB 333. The rocks were conveyed
by the army to big cities like Yangon where they were sold for 12,000-15,000 kyats per truckload.
46. Since 4 July 1998, villagers from the Kengtong area are reported to
have been forced to drive their oxcarts to carry teak lumber from Kengtong
to the SPDC military base of IB 43 at Kunhing. During July and August 427
oxcarts were used.
47. Since April 1998, villagers in 21 villages in the Nam Kham area of
Northern Shan State, bordering on China, are reported to have been forced
to work on a dam over the Nam Mao River.
48. Throughout 1998, the SPDC military are reported to have been taking
porters from the main towns throughout central and southern Shan, where the
Shan resistance is operating. The SPDC had been sending out regular
military patrols from its bases around the area, each time demanding groups
of porters from the civilian population. The households provided porters
on a rotation
basis, and if someone could not go, they were made to pay 8,000-10,000
kyats to hire a replacement.
3. Restrictions on farmers
49. Because of the massive displacement of the population, farming has
apparently been drastically reduced. This has led to food shortages among
the rural population generally and has provoked voluntary displacement to
other areas in search of assistance and security.
50. The army is reported to be increasingly placing restrictions on the
kinds of crops grown by the local farmers, forcing them to grow crops for
the troops which they will either consume themselves or sell. On 4 May
1998, in Murng Pan, IB 66 is reported to have ordered farmers to grow no
more than a small amount of garlic, whereas farmers had traditionally grown
this crop for export to Thailand. They were told they had to grow soya
beans for the army instead. On 23 June, IB 286 in Kaesee told villagers
from Murng Nawng and Murng Nang (who had been forcibly relocated) that they
needed licences to grow rice and if licenced, they had to give half their
rice crop to the army. If they had no licence, their rice fields would be
confiscated. On 2 July, SPDC IB 99 in Larng Khur is reported to have
ordered all sugarcane farmers to clear two thirds of their sugarcane farms
and grow soya beans and yellow beans for the army instead. One farmer who had apparently been granted permission to continue farming as usual was reported to have been beaten, kicked, tortured and then shot to death on 3 August 1998. In September, the villagers of Kengtong, Murng Nai, were said to have been forced to cultivate yellow beans for the SPDC troops at local bases.
4. Land confiscation
51. Another important cause of displacement relates to land confiscation.
The majority of the population lives by agriculture. Farms tend to be
small and constitute the only income for families. Moreover, land is
culturally part of a person's identity. The Special Rapporteur was told
that very few legal titles to land exist. This permits the military to
confiscate the land that had traditionally belonged to peasants and farmers
living in Karenni, Karen and Shan States and to redistribute it to military
officials and soldiers.
52. Since June 1998, the authorities are reported to have issued orders
for the confiscation from the people in Tachilek of 1,000 acres of land
stretching along the Tachilek-Kengtung main road. The confiscated land has
been bulldozed, divided into small patches and sold to those who can afford
it. People from nine villages have been affected. On 4 June 1998, the
Golden Triangle Military Command Commander ordered LIB 422 to confiscate 13
plots of land and rice fields owned by villagers of King-Ka in Zone 2 in
Kengtung to expand the military base. The villagers were given a small
plot of land each to build a house on, but they had to buy it. They were
still forced to pay their rice quota to the SPDC even though their land had
been taken from them.
53. While development and industrial projects such as railway
construction, and the creation of tourist attractions are being carried out
in areas inhabited by minorities, many people are having their lands
confiscated without any compensation and are forced to move to designated
sites.
C. Patterns and consequences of displacement
54. The Special Rapporteur has ascertained from his contacts with those
who have sought refuge in the camps on the Thai side of the Thai Myanmar
frontier that since 1996, there are two distinct categories of internally
displaced persons in the ethnic States: the "displaced" and "dispersed".
The first category consists mostly of families who were forced to go to
relocation sites or army camps, while the second category includes persons
who instead fled to the mountains or the jungle, trying to avoid the main
roads and to hide from the military. It is much more difficult to identify
the dispersed, since they are not concentrated in a group but are literally
dispersed throughout the country. While visiting the camps, the Special
Rapporteur spoke with both categories of displaced persons who subsequently
fled to Thailand, and in the context of the present report the term
"internally displaced" implies both categories.
55. Testimonies received by the Special Rapporteur, as well as
observations made by representatives of non-governmental organizations,
indicate that the victims of displacement are mostly villagers and farmers
who were living in remote areas of Karen, Shan and Karenni States. Most of
them have not been officially registered and do not possess any
identification cards or other documents.
56. Cases of forced evictions seem to occur with great frequency and as a
matter of policy. All the people interviewed by the Special Rapporteur
stated that they were given at most one week's notice to move and were told
that they would be shot if they did not comply. They were forced to leave
their land, their crops and most of their animals. Much of the property
was reportedly immediately stolen or confiscated by the army. In some
cases, there was adequate time to prepare for departure, so that families
or even entire communities could leave together. If not, or if attacked,
they had to flee in a disorderly manner, sometimes with the husband, wife
and children going in different directions.
57. The internally displaced persons in Myanmar rarely flee in large
numbers. They usually move in small groups of a few families or
individuals. The areas of expulsion are numerous and spread throughout the
country, including in the border areas with Thailand. The displaced's own
perceptions of where food and security might be found are determining
factors in deciding upon the destination of their flight. The displaced
usually move to neighbouring rural areas or to the jungle; others go
directly to relocation sites and from there to camps located in Thailand,
or directly to Thailand where they often join relatives or friends from the
same area. In this regard, the Special Rapporteur was often told during
the mission that the army is planting landmines in order to prevent the
population from using the routes which take them to their paddy fields or
to the Thai border. According to information received, each battalion in
the front line area (along the Myanmar Thai border) was issued with about
200 landmines and ordered to plant them.
58. The two main considerations which led people to flee were security
concerns and the need to have a source of livelihood. These could at times
be contradictory concerns. On the one hand, fear of losing one's land
constituted a motive for staying if the harvests were sufficient, while on
the other hand, fear of attacks was a motive for departing. Conversely,
the need to find a source of subsistence had to be weighed against the fear
of being caught by the army after having been ordered to move to a
relocation site.
59. Another problem affecting the displaced is the disintegration of
families and communities. The Special Rapporteur noticed a large number of
widows and orphans among the displaced in camps in Thailand. However,
numerous communities have remained more or less together in spite of
displacement and have maintained many of their cultural traditions. This
helps to alleviate to some extent the acute problems of displacement and
would no doubt facilitate the process of return to the areas of origin.
However, very few returns to areas of origin seem to be taking place.
Continued insecurity coupled with destroyed infrastructure suggest that
displaced persons had compelling reasons for wanting to remain in the camps
in Thailand.
60. As far as the security situation in the areas of return are
concerned, reports continuously reaching the camps speak of, for example,
forced labour and portering, arbitrary arrests, detentions and executions
by the Myanmar military of persons suspected of sympathizing with
insurgents, with no recourse to formal judicial proceedings. In addition,
returnees were finding their homes destroyed and their land either burnt or
occupied by the army. In such cases, the returnees had no recourse to
justice, either because the judicial system did not exist or because it was
not functioning independently. The displaced, moreover, had very few
resources and means by which to return home. The infrastructure of entire
villages had been destroyed and many homes levelled by warfare and looting.
Finally, it would seem that the local authorities had no intention of
dealing with the assistance and protection problems of the returnees.
61. The Special Rapporteur was told that, for the peasants who had lost
their land, either because they had to sell it very cheaply before they
fled or because it was destroyed or taken by the army, return is not
possible. Where the armed conflict is continuing, return is also not an option.
1. The situation of the dispersed in the jungle
62. Following orders to leave their homes, many villagers avoid moving to
relocation sites and usually move first to a nearby rural area or go to the
jungle, trying to work in their fields during the day and returning for
safety at night. They can remain in hiding for several months as long as
they are able to find sufficient food to survive. These villagers live in
fear that the soldiers will find them, especially in the dry season. It
was reported, for example, that at the start of the dry season in 1998,
local army troops shot on site at villagers hiding in the Mi Chaung Theit
area.
63. Apart from the lack of security, the lack of food is clearly the main
problem facing families living in the jungle. Families supplement their
rice porridge by eating wild roots, leaves and fruit. Many families
interviewed said that they could not cultivate their crop safely and that
when they were discovered their fields and paddies were burned. As a
result, without any source of income and without enough food to survive,
they try to find their way to Thailand. In addition, people living in the
jungle have limited access to health care. They have to rely on an
insufficient and informal health-care network in the form of "mobile health
teams", which provide medicines and vaccinations. However, it was reported
that these mobile teams could not cover all the areas where the displaced
hide and live.
2. The situation of the displaced in relocation sites
64. According to testimonies received, relocation sites, as well as the
living conditions in the sites, may vary from one place to another.
Displaced persons in refugee camps in Thailand describe the sites as
either a large, empty stretch of land surrounded by fences or barbed wire
and near a military camp or as the centre of a large village where the army
has forced villagers to congregate. The military outpost is normally in
the centre of the village.
65. No particular arrangements are made by the authorities to receive the
new forced arrivals. There seems to be a food and a health crisis and a
general lack of adequate housing and basic services. Villagers have to
build their own makeshift huts and provide their own food. Family members
living in the relocation sites are often requested to do various tasks for
the army. Each family also has to provide one person to work for the army.
They perform various duties such as building the fences, cleaning the
compound or guarding the site. The interviews did not make clear to what
extent facilities for education and access to health care, especially for
children, are available. Unemployment is a major problem in the relocation sites. The displaced are
used to working their own land and it is difficult to start any sort of
work to generate income. When they are able to find work, they are easily
exploited. According to testimonies received, many displaced persons,
including children, work as daily workers (porters), whose salaries are
around US$ 2 per week, for 12-hour working days. Others work in
construction.
Those who find such jobs are considered to be fortunate, since they have an
income.
66. The villagers are not entitled to leave the compound without a pass,
for which they have to pay. Their freedom of movement is extremely limited
and, in all cases, subject to authorization from the local military
battalion.
Attempting to flee is said to be interpreted by the authorities as proof of
participation in or sympathy with the insurgency and of an intention to
report on the abuses committed by the army. Some are required to obtain
safe conduct passes or pay high fees at checkpoints for a "permission" to
leave. Other sources have reported incidents of women and children being
shot at while fleeing in areas near the border with Thailand.
3. Special problems affecting women and children
67. Many of the displaced, in particular women and children, reported
that they had been terrorized and subjected to inhuman treatment before
taking refuge in Thailand. It was reported that Myanmar soldiers raped and
abused women during incursions into the emergency zones or in the
relocation sites.
In some areas, women who work in the fields still face significant risks of
being targeted and victimized.
68. The Special Rapporteur has noted the serious psychological problems
facing women and children affected by the crisis. Abuses against women,
especially in the course of violent events, reportedly ranged from having
seen their children or husband killed to being raped and losing their home
and means of subsistence. Interviews held in the course of a short visit
to a village revealed that many had suffered from such abuses. It should
be mentioned that cultural inhibitions linked to subjects such as sex and
the serious social implications of rape and assaults on women compound the
problem of lack of outlets for expression and foment deep hatreds.
69. Female-headed households were less able to become self-reliant and
were therefore more in need of assistance. In some cases, they were
assisted by other families, for example, in setting up shelters. The
numerous children who had been orphaned or separated from their families
constituted a particularly vulnerable group. In general, there was a
willingness on the part of local families or other displaced persons to
adopt the children, at least until their parents could be traced if they
were still alive.
70. Some of the most serious problems the displaced and dispersed
populations face are in the health domain, largely because of the lack of
health services. Children are particularly affected by chronic
malnutrition, malaria, diarrhoea and dysentery. The right to health is
seriously jeopardized in those circumstances.
71. Displaced children living in the jungle suffer high mortality and
malnutrition rates and their flight from their homes often puts them beyond
the reach of any assistance or protection. Frequently, displaced children
have witnessed the murder of their parents or the destruction of their
homes.
As a consequence, many children suffer from fear and parents, caught in the
day-to-day struggle for survival, often have little energy to devote to
caring for them.
72. Rather than attending school, many displaced children have had to
help support their families. In any event, many schools are reported to
have been destroyed or closed. Public education is officially free;
however, many schools are under funded and parents have to pay tuition so
that the school can operate. Many displaced children do not speak Burmese
and have difficulties in communicating with their teachers. Many children
who used to go to school in their native village and learned their native
language have to restart their schooling upon arrival in the relocation
sites because they are prevented from learning in their own language. This
is not only a negation of sound pedagogical principles but a violation of
the right to freedom of expression which includes the right to receive and
impart information so necessary in the educational field.
IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
73. The Special Rapporteur has previously reported that Myanmar law and
orders of the State Law and Order Restoration Council (SLORC) themselves
violate basic freedoms, including the freedoms of expression and
association. The Government of Myanmar continues to intimidate its citizens
and prevents them from exercising their fundamental rights to freedom of
association and expression by prosecuting persons for criminal and
treason-related offences.
The Special Rapporteur notes that many citizens are still being arrested
for peaceful expression of their ideas. As mentioned above, political
party leaders and their members are being held, for an undetermined period,
against their will and without any charges being brought against them.
Moreover, it is evident that the total State domination of the media,
together with the existence of a wide range of SLORC orders criminalizing
freedom of expression, seriously undermines the exercise of this right as
well as the right to freedom of association.
74. Conditions in Myanmar prisons fall short of international standards,
i.e. the Standard Minimum Rules for the Treatment of prisoners, the Basic
Principles for the Treatment of Prisoners and the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment.
75. The non-acceptance by Myanmar of the customary ICRC procedures for
visits to places of detention is highly prejudicial to the amelioration of
conditions of detention in Myanmar.
76. The phenomenon of displacement would appear to be limited largely, if
not exclusively, to ethnic minorities. The problem is not new and
originates mainly from the absence of a political solution dating back to
colonial times and before. The ceasefire agreements concluded in recent
years are a beginning to a solution but are likely to be fruitless until
serious and meaningful measures are taken to engage in a political dialogue
which includes the ethnic minorities.
77. The army has been implicated in human rights abuses resulting in
displacement. This is partly attributable to the fact that the armed
forces constitute the only institution vested with law enforcement. The
armed forces are occasionally involved in restoring public order, although
no specific training is given for this task and those involved in such
operations merely resort to the use of military equipment and military
tactics. In such cases a number of provisions of international
humanitarian law, such as article 17 of Protocol II Additional to the
Geneva Conventions, which prohibits the displacement of civilian
populations for reasons related to the conflict, are relevant and must be
observed.
78. Impunity remains a very serious problem. Retaliatory massacres of
villagers and massive human rights violations of civilians have occurred.
In all these instances the right to life and security of the person, in
particular of women and children, are violated. In addition, corruption,
which is on the rise, is a serious problem particularly as law enforcement
and the administration of justice are casualties of military rule.
79. As observed earlier, none of the displaced persons living in Myanmar
itself or in Thailand will be able to return home immediately, as their
houses and land have been destroyed or others have moved onto their land.
Deeply embedded insecurity and fear also prevent return. Where return to
the home areas becomes impossible, alternative solutions are required to
ensure the basic rights to life, protection of personal security and from
cruel, inhuman or degrading treatment, health, education and family unity,
among others.
B. Recommendations
80. Since the situation of human rights in Myanmar is worsening and the
repression of civil and political rights continues unabated, the Special
Rapporteur feels bound to renew the detailed recommendations he made in
paragraphs 7 to 97 of his last report to the Commission on Human Rights
(E/CN.4/1998/70) and in paragraphs 61 to 63 of his interim report to the
General Assembly (A/53/364).
81. In addition, in view of the ever growing humanitarian crisis in Shan,
Karen and Karenni States, in particular, assistance to the displaced and
other conflict-affected persons should become a priority for the
Government.
82. Because the displaced and other conflict-affected persons have a wide
variety of urgent needs, the Government should seek the assistance of the
international community, through the United Nations system and its
specialized agencies, governmental and intergovernmental organizations, as
well as non governmental organizations, in assessing the nature and extent
of the assistance needs and in responding to those needs in a rapid and
flexible manner.
83. Clearly, the military solution that has been adopted by the
Government in the ethnic areas has become a serious problem rather than a
solution. A political solution in the ethnic areas in the context of the
political dialogue recommended in paragraphs 79 of the Special Rapporteur's
last report to the Commission has become urgent in order to prevent a
worsening of the present humanitarian disaster.
----------------------------------------------------
Notes
1/ "Forgotten victims of a hidden war: internally displaced Karen in
Burma", published by Burma Ethnic Research Group and the Friederich Naumann
Foundation, April 1998
2/ "Dispossessed : forced relocation and extrajudicial killings in Shan
State", Shan Human Rights Foundation, April 1998
3/ Burmese Border Consortium, "Refugee relief programme - Programme report
for the period January to June 1998", July 1998
4/ Ibid.
************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
UNITED
NATIONS E
Economic and Social Council
Distr.
GENERAL
E/CN.4/2000/38
24 January 2000
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-sixth session
Item 9 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS IN ANY PART OF THE WORLD
Situation of human rights in Myanmar
Report of the Special Rapporteur, Mr. Rajsoomer Lallah, submitted in
accordance with Commission on Human Rights resolution 1999/17
CONTENTS
Paragraphs
Executive summary
Introduction 1
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR 2-6
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS 7-29
A. Measures adversely affecting democratic governance 7-14
B. Extrajudicial, summary or arbitrary executions 15-16
C. Freedom of association 17
D. The administration of justice 18-29
III. THE EXERCISE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS 30-49
A. Background 30-31
B. Poverty 32-35
C. Food security 36-37
D. AIDS/HIV epidemic 38-41
E. State of education 42-43
F. Forced labour 44-49
IV. THE GENDER PERSPECTIVE 50-58
A. Violence against women 50-56
B. Forced labour 57
C. Arbitrary detention 58
V. CONCLUSIONS AND RECOMMENDATIONS 59-65
A. Conclusions 59-64
B. Recommendations 65
Executive summary
Political repression and the lack of real engagement in a political dialogue with opposition groups continue to be the main sources of measures adversely affecting democratic governance in Myanmar. The policy of large-scale displacement of certain ethnic groups, the continued practice of forced labour for military camp work and portering, and related human rights violations remain the main cause of refugee movements.
The Permanent Representative of Myanmar to the United Nations indicated at the General Assembly last November that the authorities in Myanmar were giving serious consideration to a visit by the Special Rapporteur. To date no concrete steps have materialized.
Myanmar's ethnic and religious minorities, such as the Karen, Karenni, Shan and Rohingyas, continue to suffer severe abuses, including arbitrary arrest, killings, forced labour in the army and trafficking of women.
The administration of justice continues to operate under the effective control of a military regime where the exercise of the basic freedoms of expression, association, assembly and movement are criminalized under the law itself. Vaguely worded laws, such as the 1950 Emergency Provisions Act and the 1975 State Protection Law, continue to be used to arrest and sentence persons for their peaceful political activities. It is estimated that in 1998 there were approximately 800 political prisoners in Myanmar.
According to reliable studies of the economic and social situation in Myanmar, the country is riddled with abject poverty. Child mortality rates are relatively high for a country with Myanmar's level of gross domestic product per capita. Poverty rates are approximately the same in urban and rural areas, but most of the poor (71 per cent) live in rural areas. Flawed policies and inefficient mechanisms for rice procurement are largely responsible for the high level of malnutrition and infant and maternal mortality. Government budgetary priorities that in effect limit expenditure on social services have exacerbated the current situation.
The adoption by the Government of Myanmar of military solutions to political problems, while seeking military and financial inputs from outside the country to impose its order on the people, continues to generate a pattern of gross and systematic human rights violations.
Unless the regime moves away from military solutions and engages instead in an all-inclusive political dialogue with the political opposition, including representatives of the ethnic groups, and addresses the concerns of the international community, the pattern of human rights violations which has characterized the last decade in Myanmar will continue and no significant progress can be expected towards realizing the country's economic potential and achieving the levels of human welfare and prosperity enjoyed by the rest of South-East Asia.
Introduction
1. The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar has been described in each of the Special Rapporteur's previous reports to the General Assembly (annexes to documents A/47/651, A/48/578, A/49/594 and Add.1, A/50/568, A/51/466, A/52/484, A/53/364 and A/54/440) and to the Commission on Human Rights (E/CN.4/1993/37, E/CN.4/1994/57, E/CN.4/1995/65 and Corr.1, E/CN.4/1996/65, E/CN.4/1997/64, E/CN.4/1998 and E/CN.4/1999/35). The mandate was extended for a further year by resolution 1999/17 of the Commission on Human Rights, which requested the Special Rapporteur to submit an interim report to the General Assembly at its fifty-fourth session and to report to the Commission at its fifty-sixth session, keeping a gender perspective in mind when seeking and analysing information (para. 8).
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
2. On 4 October 1999, the Special Rapporteur presented his interim report on the situation of human rights in Myanmar to the fifty-fourth session of the General Assembly (A/54/440) and made an introductory statement. While in New York, he had discussions with representatives of various Governments and non-governmental organizations as well as individuals who provided him with information on the situation of human rights in Myanmar.
3. It should be recalled that, since his appointment in June 1996, the Special Rapporteur has yet to be allowed by the Government of Myanmar to examine the situation in situ and to meet with government officials and other persons relevant to the effective exercise of his mandate.
4. It should be noted that, in response to the submission of his last interim report to the General Assembly, the Permanent Representative of the Union of Myanmar to the United Nations reiterated his Government's rejection of the appointment of the Special Rapporteur, on the ground that it constituted an interference in the internal affairs of Myanmar. He expressed, as on previous occasions, his disagreement with the contents of the Special Rapporteur's report. He stated however, that his Government did not rule out a visit by the Special Rapporteur. Similar indications had, year after year, been given in the General Assembly and the Commission by the Permanent Representative of Myanmar. To date no positive steps have been taken to allow such a visit. The Special Rapporteur reiterates his regret that in the nearly four years since his appointment, the Government of Myanmar has not responded to the repeated calls of the General Assembly and the Commission on Human Rights for cooperation with the Special Rapporteur and to authorize his visit. In spite of the lack of cooperation from the authorities in Myanmar, and as in previous years, the Special Rapporteur has received considerable assistance and information from governmental, intergovernmental and non-governmental sources. He has also received relevant information from individuals about the human rights situation in Myanmar.
5. The Special Rapporteur has proposed to visit two neighbouring countries in order to conduct interviews of refugees and other displaced persons from Myanmar in those countries. The Special Rapporteur expects that the mission could take place in the course of this year.
6. The present report is based upon information received by the Special Rapporteur up to 15 December 1999 and is to be read in conjunction with his interim report to the General Assembly.
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS
A. Measures adversely affecting democratic governance
7. In his report to the fifty-fourth session of the General Assembly (A/54/440), the Special Rapporteur indicated that opposition political parties continued to be subject to intense and constant monitoring by the regime and to severe restrictions on their activities; their members have been prohibited from leaving their localities and subjected to intimidation, personal harassment and harassment of their families, and arrest and imprisonment, particularly in the case of members of the National League for Democracy (NLD), the object being to procure the resignation of those members.
8. The Special Rapporteur continues to receive reports indicating that the campaign of harassment and intimidation continues to be conducted against high-ranking members of NLD in general and the rank and file membership in particular for the purpose of procuring their resignations. It would appear that Aung San Suu Kyi and other NLD leaders are able to meet but always subject to restrictions and close monitoring. Public meetings are not allowed. As a result of forced resignations, particularly among members of executive committees, a number of NLD branch offices have closed down or were forced to close. By March 1999 there had been over 50 branch closures. Moreover, a number of sources reported in September 1999 that many members of the NLD, including MPs-elect, and other activists (in the hundreds) were still in prison or were under arrest or some form of detention while others were subject to restrictions on their freedom of assembly and movement and to systematic monitoring.
9. Restrictions imposed by the regime on ethnic opposition parties are reported to continue unabated. For instance, two senior members, Naing Tun Thein (82) of the Mon National Democratic Front and Kyin Shin Htan of the Zomi National Congress, two of the ethnic opposition parties in Myanmar, were arrested shortly after they met with the Special Envoy of the United Nations Secretary-General, Mr. Alvaro de Soto, during his visit to Myanmar from 14 to 18 October 1999. No official reason has been given for their detention. Another ethnic leader, Doo-wah U Zaw Aung, of Myanmar's Kachin nationality and the MP-elect for the township of Waingmaw, disappeared at the beginning of August. It is reported that his fate or whereabouts remain undetermined.
10. Reports indicate that three ethnic leaders were arrested in September 1998 for supporting the Committee Representing the People's Parliament formed by NLD to speak on behalf of Myanmar's elected parliamentarians. Two of them were subsequently released in order to receive medical treatment, but the third, Saw Mra Aung (82) from the Arakan League for Democracy, has remained under arrest for more than a year.
11. According to news bulletins received by the Special Rapporteur, the authorities in Kachin State ordered the branch of the Shan National League for Democracy (SNLD) in Waingmaw township to close down in November . No official reasons were given. It is further reported that in August two MPs-elect from Labutta township, U Kyi Win, a Supreme Court lawyer, and Aye Kyu, along with two other township officers of the NLD, were sentenced to two years in prison in Myaung Mya for their efforts to secure the release of four other township branch members. The four were sentenced to five years' imprisonment.
12. Regular "resignations" of NLD members continue to be announced in The New Light of Myanmar, Myanmar TV and other media channels, all controlled by the regime, in furtherance of its systematic policy of intimidation and repression directed against NLD and its supporters. According to sources inside Myanmar, about 48,000 NLD members have been reported as resigning since the campaign began a year ago. A large majority of these resignations are reported to have been registered in Irrawaddy, Mandalay and Pegu Divisions.
13. The Special Rapporteur has also been apprised of daily features published in the Government-controlled press belittling and vilifying the leadership of NLD, in particular Aung San Suu Kyi, inciting the public to treat them as enemies and to destroy them, presenting them as stooges of foreign Powers, jeopardizing stability and progress, and as being destructive agents.
14. The Special Rapporteur wishes to recall the pledge made by the authorities of Myanmar since 1990 after the general elections, in particular in Declaration No. 1/90 (see A/51/466, chap. III.C), and similar subsequent assurances often repeated in international forums. With a view to redeeming that pledge, to achieving national reconciliation and to enabling Myanmar to fulfil its obligations under the Charter of the United Nations and the Universal Declaration of Human Rights, the authorities should respond to the calls of the General Assembly and the Commission, put an end to the hostile policy they have carried on against their own people and engage in a substantive dialogue with the political leaders in the opposition, including Aung San Suu Kyi, and representatives of the ethnic groups.
B. Extrajudicial, summary or arbitrary executions
15. The Special Rapporteur on extrajudicial, summary or arbitrary executions has, during the last reporting period (November 1998-October 1999), transmitted three communications to the Government of Myanmar regarding 11 allegations of violations of the right to life of individuals, most of whom were reportedly porters killed by troops of the State Peace and Development Council (SPDC).
16. More specifically, one of the communications concerned a group of women who were allegedly raped and shot by an SPDC commander near the villages of Wan Wawn and Wan Ek, Nawng Kaw Tract, Nam-Zarng Township, in January 1999. Further, it is also reported that when a civilian porter who witnessed the scene tried to intervene, the commander shot him as well. Another communication concerned a number of porters who were allegedly executed by SPDC troops on 4 December 1998 in Kae-See Township. In the third communication, information was transmitted to the Government regarding allegations of two executions on 5 December 1998 of porters who were kicked and beaten, and finally shot, by SPDC troops because they became too weak from exhaustion and lack of food over a period of days to carry equipment.
C. Freedom of association
17. On 15 November 1999, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression sent a communication to the Government of Myanmar on behalf of nine persons, two of whom are NLD MPs-elect, namely, Saung Win Latt, U Hla Pe, U Zeya, U Moe Thu, U Win Tin, U Myo Mynt Nyen, U Sein Hlaing and U Aung Tin and U Boe Thin, requesting information about the legal basis of the charges and offences of which they were convicted.
D. The administration of justice
18. According to a recent study conducted by the Centre for the Independence of Judges and Lawyers (CIJL) of the International Commission of Jurists (ICJ) and published in its annual report, Attacks on Justice, the rule of law in Myanmar has malfunctioned since the military Government began its rule in 1988, as the Special Rapporteur and his predecessor have found in their reports over the past several years.
19. The study recalls that in September 1988, Law No. 2/88, the Judiciary Law, was enacted by the regime. Under that law, a Supreme Court was established, composed of a Chief Justice and "not more than five Judges". Lower courts, the state or division and township courts, are established by the Supreme Court. Military tribunals, established in 1989 for the purpose of trying martial-law offenders under special summary procedures, were abolished in September 1992.
20. The military regime appoints the Judges of the Supreme Court. The Supreme Court selects judges for the lower courts, but requires the approval of the regime. The Supreme Court is further in charge of supervising the lower courts. The Judiciary Law does not contain any provisions on the security of tenure of judges and their protection from arbitrary removal, thus leaving such issues entirely in the hands of the military regime and, what is worse, without any guarantees provided by law by which the military regime is bound.
21. In this regard, according to the CIJL study, five Judges of the Supreme Court, namely U Kyaw Win, U Aung Myin, U Than Pe, U Tin Ohn and U Tin Htut Naing, were "permitted" by the regime to retire by Order No. 5/98. No reasons were given. It is widely believed that, because cases submitted by NLD were pending and the regime was uncertain as to how those Judges would decide the outcome, they were forced to retire.
22. The administration of justice is greatly marked by constraints which are inconsistent with judicial independence and characteristic of a military dictatorship. According to section 2 (a) of Law No. 2/88, justice is required to be administered "independently, according to law". In reality, however, the judiciary is far from independent. This situation results from the suspension of the Constitution and the numerous decrees made by the regime the object of which is to arrogate to itself complete control over the whole political life of the nation and to restrict all civil freedoms that are likely to interfere with that objective.
23. In addition to the military Government's unrestricted powers in the appointment of judges, the courts are powerless to protect the rights of victims of oppression. This is so because a great number of decrees have been promulgated by the regime for the purpose of repressing political activity and freedom of thought, expression, association and movement, among others. Moreover, emergency laws are still resorted to. These, in Myanmar, are similar to those devised in colonial times, long before the adoption of the Universal Declaration and the human rights treaties which have since followed. The courts have no jurisdiction to challenge or to discard this repressive legal arsenal. For this reason, the courts have become a mere instrument to provide formal and apparent, but clearly not substantive, legitimacy to the regime's systematic repression of the civil and political rights which constitute the very basis of the rule of law, democracy and democratic governance.
24. Basic guarantees of due process and judicial control over detention do not in practice exist, even in cases involving violations of the provisions of the law that criminalize political activity and the exercise of civil rights for that purpose. For example, without the permission of the intelligence organs, judges cannot even let the family and counsel of the accused know what sentence has been passed. In many cases, the accused is kept in ignorance of the section of law under which he is charged. There have been reported instances where Military Intelligence has passed sentences orally at the time of arrest, before any trial had taken place. More often than not trials are held in camera.
25. According to the CIJL study referred to above, since the assumption of power by the regime in 1988, the freedom of individual lawyers to exercise their profession and defend political opponents of the regime has in practice been severely suppressed. The Lawyers' Associations, the voice of the profession, have been silenced. The Bar Council has not been independent since 1989, and is instead supervised by the Attorney-General and is staffed by government officials.
26. Many of the decrees promulgated by the State Law and Order Council (SLORC), as it then was, remain in force today, including Order No. 2/88 which prohibits public gatherings of more than five people and No. 8/88 which, in its effects, prohibits debate and criticism.
27. In cases other than those involving political activity, some basic due process rights, including the right to a public trial and to be represented by a defence attorney, are generally respected. Defence attorneys are permitted to call and cross-examine witnesses, but their primary role would, in practice, be to bargain with the judge to obtain the least severe sentence possible for their clients.
28. During the past few years many lawyers have had their licences withdrawn for involvement, alleged or real, in politics. Lawyers who may have been arrested, imprisoned or released prior to 1997 reportedly remain unable to practise their profession. For example, according to CIJL, Myint Aung (lawyer, licence No. 3277) was arrested and charged under section 2 (1) (a) of the Arms Act. His trial was heard on 16 and 17 May 1990 at Yangon Division Joint Magistrates Court No. 12 and he was sentenced to two years' imprisonment with hard labour. He was prevented from practising law as of 4 November 1993, and his licence to practise was withdrawn. A similar fate befell U Toe Aung (lawyer, licence No. 1049). He was charged under the notorious article 5 (j) of the Emergency Act 1950 and sentenced to five years' imprisonment on 7 February 1991. His licence too was withdrawn.
29. CIJL reports that some 50 lawyers are unable to practise their profession owing to similar treatment by the regime. It also reported that lawyers are often reluctant to take on cases involving human rights abuses by Military Intelligence (MI) Officers or soldiers for fear of arrest, retaliation or harassment by the authorities and the removal of their right to practise.
III. THE EXERCISE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
A. Background
30. The exercise of economic, social and cultural rights has been greatly marked by the ethos of militarism inherent in the very nature of a military regime. The regime has constituted for itself a highly centralized system of decision-making and enforced execution with no representative or public participation in the decision making process, whether with regard to policy or implementation. The only organization which participates in implementation is the Union Solidarity and Development Association (USDA) which is, however, under the complete direction and control of the military and for the purposes for which the military alone decides to use it.
31. In particular, and above all else, budgetary allocations are largely determined by military considerations and objectives. Thus, high and growing military spending contrasts with diminishing allocations to basic social services such as health, education and essential services, all necessary not only to translate growth, however modest, into human development and welfare but also to sustain growth.
B. Poverty
32. According to a recent economic and social assessment of Myanmar by the World Bank which is soon to be published, the country is "trapped in abject poverty despite its rich resources base. Although there has been notable moderate growth in the economy, the trickle-down effect of this growth did not reach the poor. The country's poverty and development indicators have lagged behind those of its neighbours". Flawed government policies are considered to be responsible for these outcomes.
33. The study adds, with regard to prospects for the future:
"The recent slowdown in economic activity, the sharp worsening of foreign reserves and severe contraction of public expenditure on basic services, are inflicting further hardship on the poor. If the present policies are maintained, the people of Myanmar are unlikely to benefit substantially from a resumption of growth in the region ... Continuing lackluster economic performance that fails to improve living standards for the majority of the population could have devastating consequences for poverty, human development and social cohesion in Myanmar."
34. The World Bank study concludes that if Myanmar is to enjoy broad-based economic growth and create significant gains in human welfare on a par with those enjoyed in other countries in South-East Asia, it must consider a comprehensive review of the Government's role in the economy with a view to abandoning inefficient policies and reforming budgetary priorities that squeeze expenditure on social services and infrastructure. If the country is to meet its full economic potential, it will be necessary both to establish domestic incentives and capable institutions, and to attract high-quality foreign investment. However, in order to receive the support of the international community, Myanmar must demonstrate a commitment to a broad-based policy that would not only address the economic and social issues elaborated in the Bank's report, but also the other concerns of the international community, in particular United Nations resolutions concerning political and civil rights.
35. Yet a different study of July 1998, provided to the Special Rapporteur, has concluded that data concerning the ability to lead a long healthy life, to be educated, and to have command over resources needed for a decent living indicate that Myanmar's 46 million people are generally poor. Further, the same study points to the low levels of achievement and slow progress in several critical areas of human development in Myanmar.
C. Food security
36. According to the World Bank study, "the level and depth of hardship among families in Myanmar is vividly reflected in high rates of malnutrition among pre-school-aged children. Even based on official statistics, far too many of Myanmar's children suffer from wasting and stunting. Moderate wasting affects almost 3 out of 10 children under 3 years of age, and 1 in 10
is severely malnourished. This has been described elsewhere as a 'silent emergency' in Myanmar. It has also been noted that deprivation on this scale indicates not only immediate need, but also adverse long-term repercussions for the health and intellectual development of the affected children".
37. In a recent report submitted to the Special Rapporteur, entitled "The People's Tribunal on Food Scarcity and Militarisation in Burma, October 1999"1, the authors received testimonies from a large number of witnesses upon which the following conclusions were reached:
"1. There exists hunger and food scarcity in both the civil war and non-civil war areas of Myanmar, in particular the Karen, Karenni and Shan states, and the Delta region;
"2. The situation of hunger is spreading both geographically (to more regions of Myanmar) and demographically (affecting people from more varied walks of life);
"3. The causes of this situation are as follows:
"3.1 the destruction of staple crops which provide the local food supply.
"3.2 uncompensated conscription of people to work on State projects which do not leave enough time for them to work their fields.
"3.3. uncompensated conscription of people to do portering to areas far from
their home villages, resulting in not being able to have time to grow food.
"3.4. forced relocation of people to areas where rice is difficult to grow, or to unfamiliar terrain making it difficult to find enough food.
"3.5 a quota system of the amount of rice to be supplied to the government substantially below market price, which must be supplied whether or not the harvest was adequate. This often leaves the people in debt and without any rice of their own to eat."
D. AIDS/HIV epidemic
38. The economic deterioration and the widespread human rights abuses that
accompanied the rule of SLORC since 1988 and later, in 1997, SPDC, has had a dramatic effect on the health status of the people of Myanmar, a situation that is compounded by limited access to health care, particularly in the ethnic-minority regions. According to the World Bank study mentioned above, the last 10 years have been characterized by a sharp decline (80 per cent) in the usage of public hospitals and dispensaries. This is mainly due in principal to the low level of public spending on health (about 0.2 per cent). The widespread campaigns of forced relocation and wholesale transfers of communities such as the Karen and other minority groups, arbitrary arrests, slave labour coupled with the use of civilians as human minesweepers have further deteriorated the health situation in the country. Furthermore, about 1 million children are malnourished. The health of the people of Myanmar is further jeopardized by another threat: the increasing use of heroin and the alarming spread of HIV/AIDS. According to the World Bank report on Myanmar, "there are over 1 million HIV/AIDS cases".
39. It is further reported that the availability of heroin in Myanmar has encouraged its local cultivation, especially for the consumption of intravenous drug users. This is considered to have contributed to a marked increase in HIV infection throughout the region. While government statistical estimates are conservative, the United Nations Drug Control Programme and non-governmental organizations that work in the health sector estimate the number of addicts to be between 400,000 and 500,000. The Joint United Nations Programme on HIV/AIDS (UNAIDS) published estimates for the end of 1997 indicating the number of adults and children living with the HIV/AIDS virus to be around 440,000.
40. UNAIDS reports that the Government of Myanmar began HIV screening in 1985 of high-risk populations and blood donors and in 1989, the National AIDS Technical Committee was formed and later restructured, within the National Health Committee, to the multisectoral National AIDS Committee, with a vertical structure of divisional, district and township AIDS committees. Further, the National Health Committee has established guidelines for the Government's AIDS policy since then. Although the Government was reluctant to acknowledge the existence of an HIV/AIDS problem when it was first discovered in 1985, recent efforts show a change in attitude. However, resources made available to combat HIV/AIDS would appear to have been limited. The impact of these resources, meagre in comparison with the magnitude of the problem, is judged to have been limited by the Government's reluctance to permit international non-governmental organizations to work in collaboration with community-based organizations. Permits to visit patients are difficult to obtain and access to high-risk groups and vulnerable groups is restricted.
41. Other significant factors impeding the measures taken to date to address the situation are said to be the lack of "social marketing" crucial in prevention efforts and the lack of behavioural research and assessment of prevention interventions. Equally important, little intervention has targeted women. There would also appear to be a lack of political will to tackle the HIV/AIDS problem as well as of resources at a level required for a successful HIV/AIDS care and prevention programme. Indeed, earlier this year UNAIDS warned of a growing epidemic in Myanmar and indicated that the regime was largely ignoring it. The Special Rapporteur shares this concern and urges the Government to recognize the problem and allocate sufficient resources to address the epidemic, which might quite easily affect neighbouring countries as well.
E. State of education
42. Universities are still closed. The authorities still fear that the demand of the students to have a say in structuring their own education might lead, as in 1988, to demands for the restoration of democracy. A whole generation, and the country itself, is being deprived of the knowledge, intellectual development and expertise which a country badly requires for its own development and human welfare.
43. Available data indicate a trend of declining expenditure on education by the Government, accounting for 1.1 per cent of GDP in 1995-1996, from 2.6 per cent in 1991-1992. The World Bank study referred to above corroborates these estimates, adding that it is impossible to provide good quality education services with the substantial erosion in education spending that has occurred over the past decade, and that "current Government spending in education as a share of national income is among the lowest in the world".
F. Forced Labour
44. In his report to the General Assembly (A/53/364), the Special Rapporteur provided details on the work of the Commission of Inquiry established by ILO to examine complaints lodged by the international Confederation of Free Trade Unions concerning the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), as well as the observations made in the Director-General's report (see A/54/440, paras. 21-30).
45. The Commission of Inquiry submitted its report in July 1998. Its findings were updated in subsequent reports of which the most recent was published in November 1999 for the 276th session of the ILO Governing Body. This report (document GB.276/6) presented comprehensive information on such measures as had been taken by the Government of Myanmar following the recommendations of the Commission of Inquiry and action taken in that regard by ILO. The report, inter alia, notes that in spite of the Commission's recommendations, the exaction of forced or compulsory labour by the authorities continued and the attention of the Government was drawn to the "relevant and consistent evidence of the persistence of forced labour" in Myanmar.
46. The evidence presented to the ILO Governing Body also shows that a considerable number of orders addressed to village heads were issued by military officers demanding the supply, without fail, of a number of "servants", "rotation servants" or "volunteer workers". Further, the report indicates that it is often specified that if the village head fails to comply, it would be entirely his or her responsibility and would be severely punished. While the focus of the report of the Commission of Inquiry was on forced labour, it highlighted the human rights violations suffered by the various ethnic groups in Myanmar in general. The human rights violations recorded include extrajudicial killings, rape, torture, ill-treatment and forced relocation.
47. With respect to the right to form and join trade unions, although Myanmar ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) in 1955, the competent organ of ILO reports that workers and employers in Myanmar do not enjoy the right to join organizations of their own choosing. Furthermore, such organizations do not have the right to join federations and confederations or to affiliate with international organizations without impediments.
48. The issue of freedom of association and protection of the right to organize has again been discussed before the ILO Committee on the Application of Standards and the Committee of Experts. Both committees have deplored the absence of any progress towards the application of this fundamental Convention despite their repeated calls upon the Government for over a decade.
49. In the absence of genuine cooperation on the part of the Government and the total absence of progress in the application of this convention, the Committee on the Application of Standards has noted in a special paragraph of its report the continued failure of the Government of Myanmar to implement the Convention. Both the Committee on the Application of Standards and the Committee of Experts have strongly urged the Government of Myanmar to adopt, as a matter of urgency, the measures and mechanisms necessary to ensure, both in legislation and actual practice, the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organizations concerned, first-level unions, federations and confederations of their own choosing for the furtherance and defence of their interests and to ensure the right of such organizations to affiliate with international organizations. The Government of Myanmar was invited by the Committee on the Applications of Standards to consider appropriate forms of ILO assistance to ensure that real progress was achieved by 2000 in the observance of its obligations under this fundamental convention.
V. THE GENDER PERSPECTIVE
A. Violence against women
50. In a previous report (E/CN.4/1999/35) the Special Rapporteur identified some of the problems that affect especially women and children in Myanmar and expressed his concern over the situation. Because rape and abuses are a regular feature in the mode of operation of the army in its campaign of incursions into the insurgency zones or else in the relocation sites, women and children continue to seek refuge within and outside the country. As those abuses continue to devastate the lives of many, they migrate. Many women are reported to fall through the safety net of refugee camps along the borders and into the hands of traffickers or become victims of other forms of exploitation. Recent reports received by the Special Rapporteur indicate that such abuses and their consequences afflict women from several ethnic groups in general and the Rohingyas in particular.
51. As an ethnic group, it is said that the Rohingyas continue to suffer from the consequences of discrimination and gross abuses. They practice Islam. Many generations ago they migrated from East Bengal. They are denied citizenship, as explained in the Special Rapporteur's previous reports. While Rohingya women, men and children are all affected, the women are at particular risk of exploitation by traffickers luring them into becoming sex workers or to "sweatshops" working as underpaid labour .
52. The Special Rapporteur's attention has been drawn to the interview of a 19-year-old educated Rohingya woman who complained that "the major problem is rape. Rape is very common. We are not respected. That is why women are too afraid to leave their homes and even work outside. Often the military kidnap girls and take them to their camps. They are only released after being gang raped ... and assaulted."
53. According to the Office of the United Nations High Commissioner for Refugees (UNHCR), six major circumstances constituted the "push factor" for the outflow some years ago of the Rohingyas from Myanmar: (1) the lack of citizenship and, by extension, nationality rights; (2) imposed restrictions on movement by the Myanmar authorities; (3) forced labour and portering for the army; (4) compulsory food donations, extortion and arbitrary taxation; (5) land confiscation or relocation; and (6) deliberate food (rice) shortages in combination with high prices. These factors, coupled with systematic human rights violations and imposed underdevelopment, led to the mass exodus of Rohingyas.
54. The General Assembly, in resolution 49/166, defined the practice of trafficking as the "illicit and clandestine movement of persons across national and international borders, largely from developing countries and some countries with economies in transition, with the end goal of forcing women and girl children into sexually or economically oppressive and exploitative situations from the profit of recruiters, traffickers and crime syndicates, as well as other illegal activities related to trafficking, such as forced domestic labour, false marriages, clandestine employment and false adoption".
55. The Special Rapporteur on violence against women, its causes and consequences, transmitted to the Government of Myanmar last June information on alleged instances of violence against women and, in particular, alleged violations of the Convention on the Elimination of All Forms of Discrimination against Women, the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, and Protocol II Additional to the Geneva Convention.
56. Examples of the cases that have been brought to the attention of the Government of Myanmar by the Special Rapporteur on violence against women, include the following: Naw May Oo Paw, who was forced to pay soldiers with rice and other food to avoid working as a porter; the wives of Bo Pha Palaw Pho and Bo Kyaw Hair, two Karen National Union leaders, forced to carry extra-heavy loads for the army to the point of becoming unconscious; Nam Nu, who was allegedly kidnapped by MI officers and later beaten during interrogation; and Mugha Lwee Paw, who was allegedly arrested twice by soldiers and tortured.
B. Forced labour
57. There are many reports of forced labour of women. Women are said to be regularly taken from their homes and forced to undertake manual labour for the army. This labour involves cooking, cleaning, digging ditches, building bridges and roads, and carrying heavy loads. Moreover, they are allegedly beaten if they are unable to work or become tired; they are left behind in the jungle if they become unconscious from beatings or fatigue and are malnourished.
C. Arbitrary detention
58. Many reports indicate that police and intelligence officers use rape and sexual harassment in order to extract information from women in detention. Women are allegedly beaten, starved, and kept in solitary confinement while in detention.
V. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
59. The Special Rapporteur, as in his previous reports to the General Assembly and the Commission on Human Rights, regrets that in spite of the Government's recent indications that "serious consideration" would be given to a visit by him, he has not so far been given permission to enter the country. He therefore has to rely on his personal interviews with refugees or other displaced persons as well as valuable information given to him by various organizations and institutions, both governmental and non-governmental, as well as by individual Governments.
60. A most welcome feature has been the resumption of cooperation by the Government in relation to the valuable work of the International Committee of the Red Cross (ICRC) which is now able to operate in accordance with its own procedures, as the Special Rapporteur has already been able to highlight in his last interim report to the General Assembly.
61. No concrete progress, most unfortunately, can be reported on the general situation of human rights in Myanmar. On the contrary, repression of political and civil rights continues in Myanmar, including summary or arbitrary executions, abuse of women and children by soldiers and the imposition of oppressive measures directed in particular at ethnic and religious minorities, including the continuing use of forced labour and relocation.
62. Persecution of the democratic opposition, in particular members of the NLD, continues as in previous years, including long prison sentences and the use of intimidation and harassment.
63. Well-documented reports and testimonies continue to be received by the Special Rapporteur which indicate that human rights violations continue to occur, as in the last decade.
These include extrajudicial, summary or arbitrary executions, torture, portering and forced labour, particularly in the context of the "development" programmes and of counter-insurgency operations in ethnic areas.
64. With regard to the exaction of forced or compulsory labour, the Special Rapporteur reiterates, as in his previous reports, that information he has received from refugees and displaced persons indicates that the practice of forced labour continues, although there is an official order directing that the offending provisions of the the Village Act and the Town Act should not be enforced. No law has been passed to make forced labour an offence and no prosecution against those exacting forced labour is possible. Impunity remains a serious problem.
B. Recommendations
65. As no concrete progress can be discerned from the totality of the information provided to the Special Rapporteur, he considers it necessary to reiterate the recommendations he made in paragraphs 80 to 83 of his last report to the Commission on Human Rights (E/CN.4/1999/35) and paragraphs 50 to 55 of his last interim report to the General Assembly (A/54/440).
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1 The report has been compiled by the Asian Human Rights Commission (AHRC) on the basis of the work of a tribunal established to assess evidence of human rights violations, particularly concerning the right to food, committed against the people of Myanmar by their Government.
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In 2001 the newly-appointed Special Rapporteur did not submit a written report to the Commission.
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UNITED NATIONS
Economic and Social Council
Distr. GENERAL
E/CN.4/2002/45
10 January 2002
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-eighth session Item 9 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ANY PART OF THE WORLD
Report on the situation of human rights in Myanmar, prepared by Mr. Paulo Sergio Pinheiro, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 2001/15
CONTENTS
Paragraphs
Executive Summary
Introduction 1-2
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR 3-16
A. Fact-finding mission 3-12
B. Other activities 13-16
II. HUMAN RIGHTS-RELATED DEVELOPMENTS 17-94
A. Activities of the governmental Committee on Human Rights 19-23
B. Civil and political rights 24-78
1. Freedom of political association 24-29
2. Freedom of expression and information 30-33
3. Political prisoners 34-47
4. Conditions in prisons 48-63
5. Freedom of religion 64-69
6. Forced labour 70-78
C. Economic, social and cultural rights 79-94
1. Tertiary education 79-91
2. HIV/AIDS 92-94
III. OTHER ISSUES 95-113
A. Ceasefires 95-97
B. Refugees and internally displaced persons 98-101
C. Child soldiers 102
D. Violence against women 103-107
E. Humanitarian aid 108-113
IV. CONCLUDING OBSERVATIONS 114-115
Annexes
I.Programme of the fact-finding mission of the Special Rapporteur
II. List of humanitarian cases
III. List of persons who reportedly received prison terms for communicating, trying or intending to communicate, or being suspected of communicating human rights information to the United Nations
IV. List of persons interviewed by the Special Rapporteur during his visits to Lashio and Mandalay
Executive summary
The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar was established by the Commission it its resolution 1992/58 and extended most recently in resolution 2001/15 (approved by the Economic and Social Council in its decision 2001/ 251). In its resolution the Commission requested the Special Rapporteur to report to the General Assembly at its fifty-sixth session and to the Commission at its fifty-eighth session. The Special Rapporteur accordingly submitted an interim report to the General Assembly (A/56/312). The present report is based upon the findings of his first fact-finding mission to Myanmar undertaken in October 2001 and information received by him up to 15 December 2001 and is to be read in conjunction with his interim report.
The Special Rapporteur welcomes several positive initiatives addressing some of the human rights concerns of the Commission in which the Government of Myanmar has been engaged since the start of the ongoing confidence-building contacts with Daw Aung San Suu Kui in October 2000 under the auspices of the mandate of the Special Envoy of the United Nations Secretary-General for Myanmar. These include the operation of the governmental Committee on Human Rights; the dissemination of human rights information for the police and public officials; releases of political detainees, including elected members of Parliament; the reopening of offices of legal political parties; attention to conditions in prisons and continued international monitoring and cooperation in this area; efforts to address the problem of forced labour and cooperation in this regard with the International Labour Organization (ILO); peace-building and development work in border areas through ceasefire agreements with armed groups; promotion of reform of higher education and combating the spread of HIV/AIDS.
While welcoming the above-mentioned developments, the Special Rapporteur is mindful that progress is fragile given the fact that human rights violations in Myanmar occur within the context of two related and overlapping factors: long-standing insurgencies, ethnic and otherwise, and the suppression of the re-emerging democracy movement since 1988. Serious human rights violations still reportedly occur in the country, especially in areas of conflict between the army and armed groups, but on a different scale than before; this remains to be assessed by the Special Rapporteur, in view of a changing context in the country marked by ceasefires and the gradual opening of the Government to the outside world. The challenge now, besides calling for more international awareness of what is wrong, is how to encourage the confidence-building process without ignoring the large-scale human rights violations and seeking to eliminate them through change. In concrete terms, the report calls for bolder moves to carry forward the present process, which should include as a matter of priority the following steps in the areas addressed in the report:
(a) The enhancement of the country's human rights capacity to an extent that corresponds to the need for the prevention and monitoring of human rights violations and for the State agents involved to be held accountable;
(b) The full and unconditional release of all political prisoners;
(c) The substantial enlargement of the space in which civil society, political parties and ethnic groups can function by creating non-discriminatory conditions for the exercise of basic political freedoms;
(d) The equal application of minimum standards for the treatment of prisoners, addressing at the same time the pockets of vulnerability among the prison population such as the sick, the elderly, juveniles and women, especially those with children and who are pregnant;
(e) The allocation of more resources to the reform of the education sector, in particular tertiary education, and better targeting of investments to address critical areas such as teacher training and strengthening evenly the material base of universities and institutes;
(f) Broad-based social mobilization and advocacy for preventive and curative action against HIV/AIDS integrated into a national comprehensive and sustained campaign led by the highest levels of authority and supported by appropriate international assistance;
(g) Broadening the focus of efforts to combat violence against women to cover violence in the community, particularly in areas of conflict between the army and armed groups where the most serious forms of violence against women are reported;
(h) The use of maximum restraint in military activities in respect of international humanitarian law relating to the protection of civilians and prisoners, and consideration of alternative avenues to resolving differences, i.e. through political dialogue in the mutual respect of their rights by all parties to the conflict: the Government, its armed forces, and armed opposition groups;
(i) Addressing the humanitarian situation more adequately, with the commitment of the Government going hand in hand with the involvement of the National League for Democracy (NLD) in the planning and managing of international humanitarian assistance. The report concludes that it is time for the Government of Myanmar to start a substantive dialogue with the leaders of the NLD and all other political parties and ethnic nationalities, since only through the building of an all-inclusive, accountable and transparent process will it be possible to preserve and consolidate peace and national reconciliation and to restore democracy.
Introduction
1. The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, established by the Commission in its resolution 1992/58 of 3 March 1999 and extended most recently in resolution 2001/15 of 18 April 2001 (approved by the Economic and Social Council in its decision 2001/ 251 of 24 July 2001), requires the Special Rapporteur to establish direct contact with the Government and people of Myanmar, including political leaders deprived of their liberty, their families and their lawyers, with a view to examining the situation of human rights in Myanmar and following any progress made towards the transfer of power to a civilian Government and the drafting of a new constitution, the lifting of restrictions on personal freedoms and the restoration of human rights in Myanmar.
2. In its resolution 2001/15, the Commission requested the Special Rapporteur to report to the General Assembly at its fifty-sixth session and to the Commission at its fifty-eighth session, keeping a gender perspective in mind when seeking and analysing information (para. 7). The Special Rapporteur accordingly submitted an interim report to the General Assembly (A/56/312).
The present report is based upon the findings of his first fact-finding mission to Myanmar undertaken in October 2001 and information received by him up to 15 December 2001 and is to be read in conjunction with his interim report.
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Fact-finding mission
1. Methodology
3. The Special Rapporteur is of the view that it would be impossible to tackle all human rights issues and problems in Myanmar at the same time. Accordingly, he selected for his first fact-finding mission issues which are of priority to his mandate and can be documented easily (given the limited time of the visit), and in a manner which will maintain dialogue and build confidence with the Government and develop a process of consultation and partnership with other relevant players. He also took into consideration the areas of concern that are already understood by the Government and are among its own priorities, which thus could be addressed in a spirit of cooperation. At the same time, the Special Rapporteur sought to look at the issues that concern the majority of the population and are in the nature of long-term structural problems. He thus focused on establishing an initial framework of cooperation and operating principles, visiting prisons and labour camps, interviewing political and other detainees confidentially, beginning to assess basic security conditions and the exercise of fundamental civil and political rights, and starting to look into the basic rights to health and education.
4. The Special Rapporteur recognizes the urgency in improving the situation of human rights on many fronts. However, he is of the view that given the limited resources of his mandate and notwithstanding the need to act on behalf of the urgent and best interests of the victims of human rights violations, to have a positive impact his mandate requires a long-term approach, each mission focusing on selected issues to be investigated and documented. Each new visit will update issues looked at previously and address new ones, thus allowing sufficient time to ensure their proper assessment both in terms of the scale of the problem and the quality of the documentation.
5. A basic requirement for this mandate is consultation and dialogue with the Government, political parties, including those of ethnic nationalities, and the society at large. This is what the Special Rapporteur has initiated in order to build a constructive partnership with all those, both inside and outside Myanmar, who aspire to contribute towards promoting and protecting human rights and the well-being of the people in the country.
6. With regard to the protection of witnesses and sources of information, the Special Rapporteur had obtained from the Government written guarantees prior to the mission as well as repeated assurances during the mission that no one would be subject to any form of pressure, intimidation or violence before, during or after the mission. This was complemented by an indirect approach whereby the Special Rapporteur sought information from the least vulnerable but knowledgeable sources in the country such as United Nations agencies, aid organizations, diplomats and religious leaders.
2. Programme
7. The first fact-finding mission of the present Special Rapporteur was planned to comprise a one-day consultative visit to Singapore on 8 October 2001 and a 12-day proper fact-finding in Myanmar from 9 to 20 October 2001, followed by a 6-day additional fact-finding in Thailand from 21 to 26 October 2001. While in Singapore, the Special Rapporteur met with Mr. Bilahari Kausikan, Second Permanent Secretary of the Ministry for Foreign Affairs, as well as academics, journalists and individuals knowledgeable about the situation of human rights in Myanmar.
8. During his stay in Yangon (9-12 and 17 October), the Special Rapporteur had an intensive programme, entirely defined by him, of 31 meetings (see annex I). Among them, was an important meeting with Lieutenant-General Khin Nyunt, Secretary-1 of the State Peace and Development Council (SPDC) who assured the Special Rapporteur of the full cooperation of the SPDC and invited him to go to any place he wanted and meet anyone he wished, which he did. The Secretary-1 stated that he wanted to make the mission a success and stressed that the SPDC was genuinely committed to improving the well-being of the population. He acknowledged the need to improve human rights and engage in political transition now that peace had been achieved in several parts of the country and development was taking place. He expressed concern at the lack of understanding outside the country about the progress achieved in those areas. Among other senior government officials, the Special Rapporteur met with the Ministers for Foreign Affairs, Home Affairs, Labour, Health, and Education, the Chief Justice, the Attorney-General, the Chairman and members of the Human Rights Committee, and the Deputy Minister for Foreign Affairs. He also visited educational, religious, academic and other institutions.
9. The Special Rapporteur was received privately by Daw Aung San Suu Kyi, Secretary-General of the National League for Democracy (NLD). He also had meetings with representatives of groups having entered into a ceasefire with the Government (hereafter ceasefire groups) and ethnic nationality parties that are members of the Committee Representing the People's Parliament (CRPP). 1 He met as well with representatives of 6 United Nations agencies, 24 foreign embassies, 11 international non-governmental organizations (NGOs) and the International Committee of the Red Cross (ICRC), the delegate of the Centre for Humanitarian Dialogue, a number of representatives of the local and international business communities and media agencies.
10. During field trips (13-16 October) to several regions of the country chosen by the Special Rapporteur, the mission team visited Lashio (Shan State), a Wa ceasefire area (town of Namtit), the new border town of Muse, the Lashio prison, Mandalay, the NLD office there, the Mandalay central prison, Hton-Bo labour camp and a university in Sagaing Division.
11. On 17 October, the visit had to be suspended owing to the sudden illness of the Special Rapporteur. As a consequence, visits to Kachin State, Insein prison, a labour camp near Yangon and other higher education institutions were cancelled, as were some interviews with recently released political prisoners and the Thai part of the mission. At the request of the Special Rapporteur, his team stayed on in Yangon until 20 October, as originally planned, and met with the NLD Central Executive Committee at its headquarters, as well as other international NGOs and the United Nations Resident Coordinator.
12. The Special Rapporteur received full and unhindered cooperation on the part of the Government of Myanmar during the mission, for which he expresses his sincere appreciation. All of his specific requests for meetings were met and his movements in the country were facilitated appropriately. During his visit he enjoyed freedom of movement and freedom of access to private persons and others of interest. The documentation and information requested were provided promptly and fully. The Special Rapporteur also thanks very warmly the medical staff of the Mandalay General Hospital for their competent care and kind attention.
B. Other activities
13. After his fact-finding mission to Myanmar, the Special Rapporteur prepared a brief oral report on his initial impressions and findings, which he presented to the General Assembly in his statement on 9 November 2001. Accordingly, the present report elaborates in more detail the points referred to in the statement, in light of information received during and after the mission.
14. While at United Nations Headquarters to present his report, the Special Rapporteur met with several representatives of the Myanmar authorities, other Governments, NGOs, and also private individuals who imparted their views and information on the situation of human rights in Myanmar.
15. Upon his return from the mission the Special Rapporteur wrote two letters to the Government of Myanmar regarding his cooperation with it in the implementation of his mandate. In his letter of 30 October 2001 addressed to the Minister for Foreign Affairs, he stated:
"This mission was the first step in a process of opening that I hope will continue and amplify .... This was the first opportunity to assess human rights conditions in an objective and impartial manner. I am encouraged by what I have seen so far and by the spirit of cooperation that I have encountered. I regret that we had to suspend this very important first step but I am glad to report that I am feeling better now and hope to return to Myanmar soon ...;"
"I regard my mission as a partnership with Myanmar, your Government, [and] opposition and civil society, to analyse problems together, look for and discuss solutions and mobilize international support for implementing them. I believe that this is the best way for me to contribute to the promotion and protection of human rights in Myanmar, but that I can only make it a success if I can count on your cooperation. Again, my first mission is an encouragement to me."
16. In his letter of 7 December 2001 addressed to the Permanent Representative of Myanmar to the United Nations Office at Geneva, the Special Rapporteur reiterated his wish to return to Myanmar to pursue his fact-finding mandate and indicated that he would like it to be in February 2002. On the same day, the Special Rapporteur had a follow-up meeting with the Permanent Representative in Geneva.
II. HUMAN RIGHTS-RELATED DEVELOPMENTS
17. In his interim report and statement to the fifty-sixth session of the General Assembly, the Special Rapporteur welcomed the fact that the Government of Myanmar had been supporting several positive initiatives by way of addressing some of the concerns of the Commission on Human Rights since its confidence-building contacts with the NLD leader in October 2000 under the auspices of the mandate of the Special Envoy of the United Nations Secretary-General for Myanmar. These include the operation of the governmental Committee on Human Rights; the dissemination of human rights information for the police and public officials; the releases of political detainees, including elected members of parliament. The re-opening of offices of legal parties; attention to conditions in prisons and continued international monitoring and cooperation in this area; efforts to address the problem of forced labour and cooperation in this regard with the International Labour Organization (ILO); peace-building and development work in border areas through ceasefire agreements with armed groups; promotion of reform of higher education; and combating the spread of HIV/AIDS. Progress and remaining problems in the above-mentioned areas are addressed in the following paragraphs.
18. It should be remembered that human rights violations in Myanmar occur within the context of two related and overlapping factors: long-standing insurgencies, ethnic and otherwise, and the suppression of the re-emerging democracy movement since 1988. Serious human rights violations still reportedly occur in the country, especially in areas of conflict between the army and armed groups, but on a different scale than before; this remains to be assessed by the Special Rapporteur, in view of the changing context marked by ceasefires and the gradual opening-up of the Government to the outside world. The challenge now, besides calling for more international attention to what is wrong, is how to deal with the confidence-building process and the slow opening: encouraging and fostering it without ignoring the large-scale human rights violations and seeking to remedy them through structural change.
A. Activities of the governmental Committee on Human Rights
19. During his mission the Special Rapporteur had the opportunity to continue his interaction with the Chair and members of the Human Rights Committee (HRC), whom he met previously during his exploratory mission to Yangon in April 2001. The HRC is chaired by the Minister for Home Affairs and has eight subcommittees composed mainly of government officials. The Special Rapporteur was informed that in the future its composition will be changed to include more people from the non-governmental sector and its Chair will be a civilian. It was explained that the HRC was an interim body leading to the National Human Rights Commission (NHRC), established in accordance with the Paris Principles, which is seen as a key component of the national action plan in the area of human rights. The plan would be drafted on the basis of human rights research initiated by various subcommittees of the HRC. Its preparation and implementation would be a two-phase process: namely, the period before its establishment and the period after. According to government interlocutors, other main components of the plan during the first phase will include: (i) the training of national specialists in the area of human rights; (ii) the dissemination of human rights through, inter alia, training activities and publications; and (iii) preparation for accession to more international human rights treaties. The Special Rapporteur took note that the steps for the second phase would be based on the outcome and decisions of the national human rights workshop and the Vienna Declaration and Programme of Action.
20. The HRC has carried out a number of activities since the Special Rapporteur's previous visit. One of them was the preparation of new human rights awareness tools including two books designed for policy-makers (What Are Human Rights? and Human Rights Principles and Practices: A Global Perspective) and the translation of an Australian human rights manual for use in future workshops. Other activities included human rights workshops in Yangon and Mandalay. The workshops concentrated not only on basic human rights principles and practices but also on thematic areas with a special focus on the Myanmar context, such as women's rights, child rights, forced labour, and human rights and the police. Thus, one of the last workshops held in Yangon in October 2001, "The Human Rights in Law Enforcement", was specifically targeted at the police. The issues dealt with included an introduction to human rights law; human rights standards applicable in the area of law enforcement, including arrest, detention, prevention and detection of crime; use of force and firearms; and command and management training. In November 2001, there was a seminar on child rights. In January 2002, it is planned to convene a workshop on economic, social, and cultural rights, the first of its kind in Myanmar, with the participation of representatives of the academic and non-governmental community.
21. There have been 11 human rights workshops in Myanmar thus far, held with the support of the Government of Australia and corporate funding (i.e. from multinational oil companies). The Special Rapporteur understands that more corporate actors have indicated support for future training activities. All the workshops relied not only financially but also substantively on external support, with the exception of some recent ones where national instructors who had been trained at previous workshops worked together with international resource persons. He was told that in the future, a main focus would be on the training of trainers with a view to developing a core of national human rights specialists who would then conduct follow-up training activities in order to reach not only policy-makers and government officials, but also the general public.
22. The Special Rapporteur was informed that capacity-building through a series of successive workshops was appreciated by the Government and benefited, inter alia, the research activities of the HRC. He understands that the HRC subcommittees are currently engaged in the study of existing international human rights standards and conducting research in their respective areas in particular the compatibility of national laws and practices. Thus, the subcommittee on child rights was coordinating the preparation of the second periodic report on the implementation of the Convention on the Rights of the Child and was studying the Optional Protocol to the Convention on children in armed conflict.
23. The Special Rapporteur commends all these initiatives aimed at building human rights capacity for government officials and the intention to establish a national human rights institution within the framework of the Paris Principles. However, he would like to point out that another basic requirement for the promotion and protection of human rights is the freedom to organize, participate in and express oneself through autonomous civil society organizations. The Special Rapporteur hopes these efforts to enhance human rights capacity will translate into the prevention and monitoring of human rights violations and that State agents involved in such violations will be held accountable.
B. Civil and political rights
1. Freedom of political association
24. During his fact-finding mission, the Special Rapporteur attempted to obtain the most accurate and up-to-date information on the situation of political parties in Myanmar. In his effort to do so, he met with the NLD top leadership, including Secretary General Daw Aung San Suu Kyi, Chairman U Aung Shwe, Vice-Chairman U Tin U, and the Secretary and Spokesperson U Lwin. He also met with representatives of ethnic nationality parties that are members of the CRPP. The Special Rapporteur's team also had 21/2 hours of discussion at NLD headquarters with the party's Central Executive Committee. The team also visited the NLD office in Mandalay and met there with a large group of NLD members (45) representing the Mandalay Division Organizing Committee and 11 townships (North-West, Amarapura, Sintgaing, Dadar, Pathaingyi, North-East, South-East, South-West, Myitthar, Yamethin, Thabeikkyin), who had gathered on that day for their regular meeting.
25. Of the 200 parties that registered for the 1990 elections under the Political Parties Registration Law (State Law and Order Restoration Council (SLORC) Law No. 4/88 of 27 September 1988), only 10 remain registered with the Multi-Party Democracy General Elections Commission in 2001. They include the NLD, the National Unity Party (NUP), and eight others representing ethnic nationalities: the Kokang Democracy and Unity Party (KDUP), the Union Kayin League (UKL), the Union Pao National Organization (UPNO), the Myo or Khami National Solidarity Organization (MKNSO), the Shan National League for Democracy (SNLD), the Shan State Kokang Democratic Party (SSKDP), the Lahu National Development Party (LNDP) and the Wa National Development Party (WNDP).
26. All the remaining parties were de-registered by the Multi-Party Democracy General Elections Commission quite some time ago and accordingly cannot carry out political activities. Many of those parties seem to have only a vague knowledge of the grounds and procedures on the basis of which this happened. 2 The Special Rapporteur understands that some of those parties would want to be re-registered. The Government should therefore consider revisiting the existing laws with a view to creating non-discriminatory conditions for the exercise of the right to freedom of political association.
27. To date, the NLD has been allowed to reopen some 25 of its original 40 branch offices in Yangon Division. The Mandalay NLD headquarters and two other township offices that are located in its premises are functioning normally. The NLD had also been authorized to send party organizers to prepare for the reopening of offices in Mandalay, Mergui and Ayeyarwady Districts, according to NLD spokesperson U Lwin. The approval process for the reopening of these offices has been handled on a case-by-case basis. As the Special Rapporteur understands, it, to open a party office there must be at least five members, office space and a signboard; once these requirements have been met, permission is sought from the authorities through the NLD central office in Yangon. To his knowledge, four other parties (SNLD, KDUP, NUP and LNDP) also have opened party offices in Yangon, Lashio and Kentung. He presumes that the five other legal parties are also allowed to do so. These developments are welcome.
28. The Special Rapporteur is concerned, however, that unnecessary, discriminatory and stringent restrictions continue to hamper the exercise by legally registered political parties of the fundamental human rights of freedom of assembly, association, expression, information and movement: those parties need prior permission from the SPDC to open party offices. Whereas the NUP (widely regarded as close to the SPDC) is allowed to publish party materials, the NLD and other parties still cannot and do not have permission to operate photocopiers, mimeographs or fax machines, which require government licences; their office telephone lines are disconnected; they can hold monthly meetings in office premises but public gatherings require prior permission. He heard also of official pressures on party members and organizers to resign their membership and on landlords to refuse to rent office premises to political parties.
29. The Special Rapporteur understands that the top NLD officials are subject to systematic surveillance by military intelligence personnel, with their movements, contacts and communications closely monitored. Lower party members are also closely watched, but apparently less systematically. Such restrictions, if they exist, are not conducive to the atmosphere of trust and confidence that is necessary to pave the way for effective and mutually respectful political dialogue and cooperation. It is essential that all political parties and ethnic nationalities enjoy the basic political freedoms.
2. Freedom of expression and information
30. Freedom of expression is controlled by more than half a dozen laws, the violation of which, may be, and in fact is, widely sanctioned by 3 to 20 years in prison. 3 There are numbers of people still in prison for having peacefully expressed their views verbally, through participation in peaceful demonstrations or in activities of political parties, for having written about human rights or political issues in the country, or for reading or possessing written materials deemed illegal. Among them, for instance, is a teacher interviewed by the Special Rapporteur, who was sentenced to seven years in prison for reportedly possessing a book written by a foreign author analysing transitions from authoritarian to democratic regimes.
31. The Special Rapporteur joins the Special Rapporteur on freedom of opinion or expression in voicing concern regarding the plight of individuals who were imprisoned for the peaceful exercise of the right to freedom of expression. He believes that the release of all persons detained for the peaceful expression of their views should be among the priorities of the SPDC if it is to pursue its confidence-building efforts in a convincing manner.
32. All domestic print and electronic media are State-controlled, except the recently established bi-monthly English-language Myanmar Times. However, the Special Rapporteur understands that it is, too, subject to censorship, formal or self-inflicted, as correspondents are instructed by military intelligence personnel as to how certain subjects are to be covered. During his mission the Special Rapporteur became aware that there appears to be no formal censorship of the content of what the in-country-based correspondents of foreign media write. At present, there are 21 foreign news agencies in Yangon, compared with 9 in 1989, of which 19 use local reporters; 1 uses a resident foreign reporter and another one a visiting reporter, both from the region. Among them there are only two women. Though the number of foreign media representatives has more than doubled, the conditions of operation remain restricted and should therefore be improved. Only a few of them have e-mail and fax machines, there is no Internet they do not have permission to have photocopiers, and the Government does not give accreditation to foreign photographers.
33. In general, the Government has been very selective in providing access to e-mail and the Internet. As of early 2001 there were reportedly about 3,000 e-mail users; by September 2001, reports indicated a slight increase to 4,000. 3. Political prisoners
34. The issue of political prisoners has been a priority matter for the Special Rapporteur since his first contact with the Myanmar Government. The release of all political prisoners is important, not only as an end in itself but also because it is regarded by the NLD leadership as a prerequisite for moving to the next phase of talks with the SPDC. The Special Rapporteur firmly believes that the unconditional release of all political prisoners will effectively pave the way to a dialogue, national reconciliation and democratization based on the rule of law.
35. As at 15 December 2001, 211 political detainees had been released since the beginning of the year, most of whom were NLD members. Among them were 39 NLD elected MPs who had been detained for two years and eight months without charge or trial in government "guest houses" (mostly military barracks), and other elected MPs sentenced to various prison terms. During his last mission the Special Rapporteur met with Dr. Saw Mra Aung, aged 83, senior member of the CRPP, who described conditions of detention in his "guest house" as good compared with those of other MPs, which were more rudimentary and the cost of which had, in many cases, to be supported by their families.
36. These releases are very welcome. 4 They represent, however, a small percentage of the estimated total and there is a long way to go if releases continue at the present slow rate. 5 While the Special Rapporteur understands that the SPDC, the NLD and other political parties may have different understandings of what constitutes a political prisoner, he wishes to recall that he regards as such anyone who is held in connection with real or suspected political opinions, affiliation or activities. Under this definition, there remain at least 1,500 political detainees in Myanmar. They include about 800 NLD members, an estimated 300 members of other political parties, students, as well as other political prisoners with no known political affiliation or held in connection with armed opposition groups. Among them there remain 17 MPs arrested in 1990 or in the mid-to late 1990s, of whom 15 are from the NLD (U Saw Ooreh, U Doe Htaung, Dr. Myint Naing, U Toe Po, U Ohn Maung, Dr. Zaw Myint Maung, U Ohn Kyaing, U Soe Myint, U Kyaw Khin, U Khin Maung Swe, U Sein Hla Oo, Dr. Than Nyein, Daw May Win Myint, U Naing Naing, and Khun Myint Htun) and 2 from the Mon National Democratic Front (Dr. Min Soe Lin and Dr. Min Kyi Win). Among the remaining political prisoners there are at least 100 women. One of them is a 47-year-old woman, a medical doctor and a mother of two, interviewed in the Mandalay prison, who was sentenced to seven years in prison for possessing two books deemed illegal: Aung San Suu Kyi's collection of essays, Freedom from Fear, and the other, an essay analysing transitions from authoritarian to democratic regimes by a foreign author.
37. In his statement to the General Assembly, the Special Rapporteur deplored the fact that the released did not appear to include student leaders or activists. Since then, the SPDC released one student -Yin Htwe, one of the All Burma Federation of Student Unions (ABFSU) leaders (on 12 December) -whose sentence expired in 1999 but who had continued to be detained. Many more student leaders of the 1988 demonstrations and the 1996 and 1998 protests are still in prison or exile such as, for instance, student Thet Win Aung, a 29-year-old member of the ABFSU who had been sentenced to 59 years in prison for having peacefully demonstrated in favour of the improvement of the education system and human rights.
38. During his last mission the Special Rapporteur reiterated his call for the release of all political prisoners. In pursuance of the understanding he had reached with the Government during his April 2001 visit, he submitted for the consideration of the SPDC a list of 49 prisoners for release, including all remaining imprisoned elected MPs, 12 humanitarian cases of persons who are either old, sick, or detained beyond the term of their sentence (see annex II), and 13 persons whose continued detention is related to an alleged attempt to communicate human rights information to the United Nations (see annex III). The Special Rapporteur believes that it is essential that the Government guarantee the safety of persons contacted and interviewed by the present and previous Special Rapporteurs.
39. The Special Rapporteur received consistent testimonies that following their release elected MPs and other senior political detainees are under close surveillance and must report any travel outside their home village or town to military intelligence personnel. After his mission the Special Rapporteur was informed that this practice has been relaxed. He heard as well of pressures on recently released prisoners to resign from the NLD and stop political activities in exchange for economic privileges. The Special Rapporteur urges the Government to ensure that released political prisoners will not be rearrested or subjected to harassment and will be able to participate freely in the political process.
40. It is encouraging that political arrests seem to have declined dramatically. So far, the Special Rapporteur knows of one, possibly another three, political arrests since the beginning of contacts between the SPDC and the NLD in October 2000. Ms. Gracy, an ethnic Chin and Baptist pastor accused of supporting the armed Chin National Front, was reportedly sentenced to two years in prison with hard labour in April 2001 and taken to Kalaywa camp near Sagaing where her brother is also detained. The three others -U Shwe Saw Oo and U Tha Tun Aye (both 48 years old, lawyers) and U Khin Maung Gyce (50 years old, trader) -are members of the Arakan League for Democracy who were reportedly arrested in March 2001 and are currently detained in Sittwe prison awaiting trial. Some cases of detention of youths because of their activities in the NLD had been reported to the Special Rapporteur, but it seems that they were released after two weeks.
41. Noting the very slow pace of releases and the large number of remaining political prisoners, the Special Rapporteur stresses the importance of finding ways to speed up the process. The idea of an amnesty that has been proposed by some players could offer one possible avenue. In legal terms, an amnesty is an executive/governmental act that wipes away both the sentence and crime of an entire class or classes of people. It is not to be confused with a pardon which aims at specific individuals and does away with both crime and sentence. The power to commute is part of the power to pardon.
42. Amnesties have often been used in various countries to resolve past differences, open up the political climate and encourage participation (of political opposition), and thus do not imply that anything morally wrong was done. They also give a sense of historical closure in that they are premised on a desire to forgive and move along. A pardon is usually a traditional prerogative of the King -or, in modern States, the Head of State -to demonstrate generosity and/or ease domestic tensions (in prisons or in political life) and is usually issued on regular and auspicious occasions. This said, an amnesty may be declared to coincide with a national, religious or symbolic date -such opportunities can be identified in Myanmar's political culture. In this regard, there are precedents in recent Myanmar history, which can provide useful "traditional" references. The experience of other countries could also provide acceptable sources of inspiration in Myanmar.
43. At least four categories of political detainees could be the beneficiaries of an amnesty in Myanmar: convicted prisoners; those under pre-trial detention; persons simply put in prison without charge or trial (arbitrary detention), and those who remain in detention after the completion of their terms. In the last category, there are reportedly at least 51 political prisoners who are being detained under article 10 (a) of the 1975 State Protection Act. The most well known of these cases is Paw U Tun, a student leader, who has remained in detention two years after he completed his 10-year prison sentence in 1999.
44. An amnesty for political prisoners in the context of political transition in Myanmar would demonstrate the Government's good-faith commitment to open up the political system and pave a solid way towards national reconciliation. Myanmar ownership of the act is a very important aspect, so that it is a national/domestic political event which has a full local dimension and political significance. It should thus not just be a concession to outside pressure, even if amnesty does have the effect of relieving that pressure.
45. It is important to remember that an amnesty has two fundamental principles. First, it restores all beneficiaries to their full citizenship rights: all rights enjoyed prior to the arrest must be restored; any property confiscated must be returned; there should be no rearrest on the same grounds; and the question of compensation for the losses suffered because of the imprisonment may be considered. Second, an amnesty should be unconditional. And non-discriminatory. There should be no strings attached in terms of the beneficiaries having to recognize that they have acted wrongly. Their release should be unconditional and they should not be made to promise to refrain from any (peaceful) political activity after release. Their release should not result in disadvantage to them in areas such as employment, the exercise of their civil and political rights, access to higher education for their children, etc.).
46. In Myanmar, there is a provision in law which is currently used for the purpose of release, against a written pledge by a prisoner that he/she will not engage in political activities. Section 401 (1) of the Criminal Procedure Code reads: "When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced". In practice, a number of political prisoners were released under this section and had to sign a statement that they would not engage in any political activity.
47. On the question of legality in principle, a court decision, should only be quashed by another legal decision adopted by the legislator or the judiciary. This is problematic given the legal and law-making system in Myanmar. In this respect, the need to ground the decision in law and to protect the integrity of the prosecuting authority and process must be balanced against the need to ensure the best possible mechanisms of national "reconciliation", which differ so much from country to country. In any case, prisoners who have not been charged and tried, and are thus arbitrarily and administratively detained, may simply be let go.
4. Conditions in prisons
48. Prison conditions had been reported to be very poor for many years and most reports received by the Special Rapporteur indicate that prison conditions as a whole are still inadequate. He therefore endeavoured to examine the actual conditions in prisons, both from the perspective of the authorities and of the prisoners, and also as a part of a broader assessment of the judicial system, its independence, and work with concerned authorities and partners on ways to improve the administration of justice. In order to do so, during his fact-finding mission to Myanmar the Special Rapporteur obtained from the Minister for Home Affairs permission to select detention facilities to visit and prisoners to interview confidentially; these standard operating procedures for prison visits would enable an independent assessment of prison conditions. The Special Rapporteur also sought and received guarantees that the persons whom he interviewed would not be subjected to any harassment or reprisals. He notes with gratitude full cooperation received in this regard from prison authorities.
49. The Special Rapporteur visited the Lashio and Mandalay prisons and Hton-Bo male labour camp and was able to access there all facilities, including cells/wards/ barracks. He also interviewed privately a dozen detainees with complete freedom (see annex IV). If the mission had not been suspended, the Special Rapporteur would have visited the Myitkyina prison (Kachin State), the Insein central prison and a second labour camp and continued to interview detainees there. The basic information about the detention places visited is summarized below.
50. The Lashio prison was built in 1971 and subsequently upgraded to a level-A prison with a capacity of 1,000 prisoners. At the time of the visit on 13 October 2001, there were 966 inmates, of whom 122 were females and 72 were under pre-trial detention. All prisoners were common law offenders. The prison had 78 male and 7 female staff.
51. The Mandalay prison is a central prison with a capacity of 5,000 prisoners. It used to be located in the palace and was moved to the current premises in 1982. As at 16 October 2001, it had 4,499 inmates, including 150 "security" detainees, of whom 3,900 were convicted (3,072 males and 828 females) and 599 were under pre-trial detention (512 males and 87 females). The youngest prisoner was 18 years old, the oldest 80, and most prisoners were 30-50 years old. There were also 43 little children with their incarcerated mothers. The main objective of the Mandalay prison was said to be skills training to facilitate the rehabilitation of prisoners through voluntary work in a variety of workshops. For females there were workshops for embroidery, knitting, sewing, tapestry and traditional cigarette (cheroot) making; for males there were workshops for cotton dying, chicken breeding, fabric hand-weaving, production of chicken cages and ploughs, etc.
52. The Hton-Bo male labour camp was established in 1979 at the foot of the mountains near Mandalay. It has a capacity of 900 prisoners, but at the time of the visit on 14 October 2001 there were only 279 inmates, all common law offenders, and 90 staff. According to camp authorities, the system of camp administration was essentially the same as in the prisons except that prisoners in labour camps are hired for development work for which they receive more benefits such as reduction of prison terms, remuneration, and better food. The prisoners' main occupation is rock quarrying for road construction.
53. In terms of overall conditions, the prisons and detainees visited by the Special Rapporteur and his team looked clean and tidy. Political detainees appeared to be separated from common criminals, men from women, and juveniles from adults. The Special Rapporteur's initial impression, based on in situ visits and discussions with prison authorities and private interviews with detainees, is that there have been incremental improvements, both in prisons and labour camps, in the areas of sanitation, food, access to basic medicine and medical treatment, and family visits in recent years. These improvements can be linked to at least two factors: (i) the introduction in 1997 by SPDC Secretary-1 of a set of 11 reform instructions to prison authorities; 6 and (ii) access granted to the ICRC in May 1999 to conduct its protection mandate in all prisons and labour camps.
54. The 11 instructions were written on the wall very visibly in each of the detention places visited. At the request of the Special Rapporteur their full text was provided after his mission. The document is called "Points of Reforming the Prisons in Myanmar" dated 7 July 1997. It reads as follows:
"(1) to supervise the prisons' security systematically and not to leak out the information from inside to outside because of incorrect news produced by destructive elements; (2) to perform prevention of infectious diseases in the prisons, spraying disinfectants, medical check-up of the inmate in collaboration with the relevant departments; (3) to ascertain that drains in the prisons are free of foul smells and impurities; (4) to provide for clean and favourable living conditions for the inmates, in a humanitarian spirit; (5) to keep up with the effort for the development of the inmates' mental and social factors; (6) to prevent overcrowding, to ensure good ventilation by accommodation of inmates separately; (7) to oversee systematically their health situation; (8) to carry out any necessary improvement and reformation; (9) to treat the inmates with a view to maintaining national solidarity; (10) to report any necessary amendment in the prison manual; and (11) to adopt certain internationally acceptable and modern practices of prison administration."
55. An additional set of nine instructions was issued by Senior General Than Shwe, Chairman of the SPDC, on 22 January 1999, whereby prison authorities were ordered:
"(1) to ensure the inmates become good citizens after their release; and to help them escape from lower life by transforming the prisons into Rehabilitation Centres and to get rid of their prisoner complex; (2) to provide family wings so that the inmates can live with their families, for their health and education, and to open dispensaries and schools that will remain useful to the village when the camp is closed; (3) to give five acres, farming implements and investments to them after their release if they decide to settle in the area; (4) to assist in the production of goods for the country; (5) to be in touch with the world to arrange newspapers, journals, TVs and radios for them; (6) and to allow those inmates to visit their families during vacation seasons, provide them travelling warrants and part of their savings; (7) to provide accommodation and jobs if their families want to stay together with the inmates; (8) to help the neighbouring villages by sharing agricultural methods and to assist the needy and the elderly; and (9) to add the objective of 'Striving in the interest of the people' for the Ministry of Home Affairs." A complete assessment of the actual implementation of the instructions has yet to be provided to the Special Rapporteur.
56. The cooperation between the SPDC and the ICRC appears to be exemplary, based on fair and constructive working relations, and the Special Rapporteur strongly hopes that it will continue and develop further. He was encouraged to receive positive feedback about the ICRC visits and assistance in all three detention places that he visited.
57. In concrete terms, the Special Rapporteur heard from prisoners that food has improved somewhat, both in quantity and quality, at least in the places he visited. There was more use of oil and meat and greater access to drinking water. Mandalay prison and Hton-Bo labour camp had their own water purification systems. Sometimes boiled water was also made available in tanks. In prisons meat curry (or an egg for vegetarians) was said to be served once a week, while in labour camps it was provided at least twice, 7 sometimes even more, with a sufficient quantity of rice. 8 However, the Special Rapporteur's impression is that the quality of food in prisons is still inadequate given the reported high rate of malnutrition.
58. Attention to sanitation and health has also improved somewhat, with biweekly or weekly medical check-ups, better supply of basic medicines and access to washing/shower facilities, disinfecting of toilets, provision of bins in wards and soap for inmates. Families may visit as often as they can afford it. Access to newspapers/books and recreation facilities has also seen some improvements.
59. The Special Rapporteur is not sure, however, that prisoners in labour camps can actually benefit much from recent improvements in view of their extremely tiring and heavy work in the quarries. A daily work quota is 100 baskets of rocks; each basket brings 100 kyats, of which, according to prison authorities, 10 per cent was set aside as remuneration for prisoners and given them upon release. 9 The prisoners work every day, from 6.30 a.m. to 11.00 a.m. and from 1.00 p.m. to 5.00 p.m., except for a half-day rest on Sunday afternoon They usually march to and from the quarry, which takes about 30 minutes. In addition, the Special Rapporteur understands that they are chained 24 hours a day for the first six months, though at the time of his visit they did not have chains.
60. The Special Rapporteur has received allegations that corruption is frequent and physical abuse of prisoners occurs, but he was not in a position to assess their extent. His initial impression was that physical ill-treatment in pre-trial detention by military intelligence appears to be endemic, while it is not systematic once detainees are transferred to prisons. In this regard, the weakness of the system seems to lie not so much in bad instructions, but in failing to enforce respect for the rules and instructions; this means that a lot depends on the management, chain of command, personalities and education of prison staff.
61. The Special Rapporteur also heard of discriminatory treatment of certain categories of prisoners. As he understands it, political prisoners, for instance, do not benefit from remission entitlements, do not have access to recreation facilities, receive less medical attention and need therefore to rely on medical supplies from their families, have limitations on family visits (once every two weeks for 15 minutes in the presence of guards), cannot read newspapers, and can only read strictly censored religious books but not after 4.00 p.m. They are usually kept in special security cells, which have two compartments: an inner one (measuring about 8 x 10 feet) for sleeping/eating and an outer one (about 8 x 13 feet) for bathing/walking. An iron door separating the compartments is open from 7.00 to 12:00 a.m. and from 2.00 to 5.00 p.m. Prisoners are usually not chained and not assigned to labour camps. The Special Rapporteur heard that prisoners convicted of drug abuse are also subjected to discriminatory treatment, which is in a way a kind of extra punishment. Thus, as he understands it, such prisoners in camps are chained for the first 12 months, not 6 months like other prisoners, and they are not usually sent to hospitals because the latter are reluctant to receive drug-abusers. Apart from the need to ensure the equal application of minimum standards for the treatment of prisoners, the Special Rapporteur notes the need to address the pockets of vulnerability among the prisoner population such as the sick, the elderly, juveniles and women, especially those with children and pregnant women.
62. The Special Rapporteur was also informed that there was a high mortality rate among labour camp inmates, mainly due to physical exhaustion and inadequate medical care. He believes that many aspects of the labour camps are incompatible with the United Nations Standard Minimum Rules for the Treatment of Prisoners. He strongly hopes that the Government will consider promoting changes in the penal legislation which will make it possible to close such hard labour camps and transfer the inmates to other establishments. The Special Rapporteur also received a list of about 68 political prisoners who are reported to have died in prison since 1988. The issue of death in detention is a complex area, one which he intends to examine closely, along with the other areas of concern mentioned above, during his next missions.
63. The Special Rapporteur believes that the cooperation extended to him by the Government of Myanmar in relation to prison visits indicates that Myanmar authorities are willing to open their jails to independent human rights scrutiny and are ready for cooperation in order to improve further conditions therein. Overall, incremental improvements in prison conditions are very welcome, but problems remain which need to be addressed comprehensively.
5. Freedom of religion
64. Myanmar is a country of religious diversity. During his meeting at the Ministry of Religious Affairs, the Special Rapporteur was informed that Buddhism (89.3 per cent) Christianity (5.6 per cent), Islam (3.8 per cent) and Hinduism (0.5 per cent) are the four recognized religions in Myanmar, while numerous other religious beliefs and practices exist, often closely intermingled with the major ones, especially among ethnic nationalities. The four main religions are represented by 12 Christian, 4 Muslim and 4 Hindu religious groups/organizations. Buddhist monks' organizations operating at all levels are united under the Sangka. Corresponding to the richness of religious diversity is a rare landscape of 51,468 monasteries, 3,265 churches, 2,266 mosques, and 466 Hindu temples. There are about 475,000 Buddhist monks and about 25,000 nuns.
65. The Ministry of Religious Affairs is mandated to work for the promotion of religious freedom, "purification, perpetuation and promotion of Therawada Buddhism", and preservation of Myanmar's traditions and cultures. It has existed since independence; after the reorganization of ministries in 1962, it was combined with the Ministry of Home Affairs in 1962 until it was recreated as a separate ministry in 1992. The prime objective of the Ministry is to protect and promote the exercise of the right to freedom of worship in a spirit of mutual respect and tolerance. The Special Rapporteur was informed that to this end, the Ministry organizes yearly financial aids/grants to Buddhist, Christian, Muslim and Hindu communities, arranges for religious leaders to attend religious seminars/conferences abroad, helps leaders of other religious communities to obtain free travelling passes, assists missionaries from other religions to extend their permits to stay in the country, and provides mediation in case of religious disputes. The Special Rapporteur was also informed that religious books and periodicals are allowed to be published for the respective communities and religious texts, objects and tapes can be imported for religious purpose. Ceremonies celebrating Christmas Eve and Easter for Christians, the birthday of the Prophet Mohammad for Muslims and Deepawali for Hindus are allowed to be held every year. Talks on the occasion of holy days can also be broadcast over Radio Myanmar.
66. The Special Rapporteur fully supports the policy of the Government of Myanmar aimed at promoting the right to freedom of worship, which is consistent with the sprit of human rights values and principles. In this respect, he is particularly worried at the reported violence against Muslim communities in 2001. Muslim individuals, houses, shops and mosques were allegedly attacked resulting in an unknown number of deaths and injuries, and widespread looting and destruction of property and religious buildings in Sittwe (February), Toungoo, Kywebwe and Saw (15-17 May), and in Pyi, Pakkoku, Bago, Taunggu and Inthada (mid-October). Several arrests were reportedly made, 34 in connection with the riots in Pyi, Toungoo and Bago. A curfew was imposed in several localities. The SPDC has confirmed that the riots occurred but released no information. Local reporting or communication seems to have been discouraged. Muslim communities have since been subjected to intense security surveillance, freedom of assembly has been restricted and travel restricted or banned. The Special Rapporteur has also heard allegations that in some cases, tensions may have been encouraged by local authorities who intervened only at a late stage to stop the violence. If these allegations are true they are a matter of serious concern. In the current volatile international context following the 11 September attacks in the United States, all efforts should be made to defuse such tensions, which, in the context of Myanmar, may spill over into wider unrest and violence. This appears to be one of the reasons why the SPDC reportedly declared on 15 October a 45-day state of emergency, and stepped up security measures throughout the country.
67. In his letter of 5 November 2001 to the Permanent Representative of Myanmar in Geneva, the Special Rapporteur sought clarification regarding the above-mentioned allegations. Earlier, on 18 June 2001, the Special Rapporteur on freedom of religion also wrote to Myanmar Government regarding the ethnic riots in Toungoo in May.
68. The chronic ethnic and religious tensions and violence in the north-western State of Rakhine are a matter of particular concern. It is a complex issue requiring attention, which the Special Rapporteur intends to look into at an appropriate future opportunity. Similarly, the reported restrictions on the right to worship imposed on the Christian minorities, particularly in Chin State, will also be the subject of attention.
69. Inter-ethnic/religious tensions are a matter of prime concern in a country whose extremely rich human, historical, political, linguistic and cultural diversity poses the constant political challenge of making these differences coexist in a peaceful, dynamic and constructive manner. The complex dialectics of unity and diversity is a central challenge to the current nation-building efforts in Myanmar. Either unity is pursued in a spirit of tolerance which respects differences, or there will be a risk undermining its very efforts for peace and stability.
6. Forced labour
70. The Special Rapporteur is pleased that the mission of the High-Level Team (HLT) of the International Labour Organization (ILO) had the full cooperation of the authorities. He thinks that this demonstrates the commitment of the Government of Myanmar to comply with its international obligations and effectively end forced labour.
71. The Special Rapporteur takes note of several aspects regarding the enforcement of the forced labour ban in Myanmar as reported by the HLT: no cases of forced labour have been prosecuted because either people have no faith in the independence and effectiveness of the courts or the police, or they are afraid of the consequences of complaining in view of the absence of an independent route for complaint. People prefer to use administrative means; there have allegedly been 38 instances of administrative action against perpetrators of forced labour but no action under the Penal Code.
72. The Special Rapporteur also takes note of the tentative conclusions in the HLT report which noted "a very moderately positive evolution in the situation". 10 It appears that there has even been reduction in the use of forced labour, but the process does not appear to be sustainable and there is much regional variation. Forced labour on civil infrastructure projects appears to have ceased. Violations are greatest in the southern Shan State and eastern parts of Kayin State as well as northern Rakhine, where the military are active.
73. The Special Rapporteur thinks that the report reflects accurately the Government's commitment to eradicate forced labour and the problems involved in carrying this out. He would like to draw attention to the fact that forced labour is closely connected with problems which largely stem from inadequate resources at the disposal of the Government and the people of Myanmar for resolving the issues which they are facing, including continuing insurgencies in border areas, drug smuggling, and the slow pace of developing a democratic future for the country. He also understands that these problems are exacerbated at the same time by some lack of support and understanding by the international community and the urgent need for government officials and others to become fully aware of contemporary international norms as Myanmar emerges from 40 years of international isolation.
74. The Special Rapporteur appreciates the care the HLT took in identifying weaknesses that must be addressed by the Government. Among them is the lack of consistent publicity through the media and via government officials about Order No. 1/99 and the Supplementing Orders along with explanations of their implications, in the relevant languages. There is a need for a thorough, comprehensive and consistent review of the procedures for prosecution and administrative actions to be taken in the case of complaints to ensure enforcement of the relevant norms.
75. The Special Rapporteur thinks that the Government must seriously consider and implement a proposal for the establishment of an independent ombudsman and the opening of an ILO representative office in Yangon. An ILO presence in Myanmar can contribute to effective and durable cooperation with the authorities. He thinks that it is also necessary to launch systematic training on labour standards and human rights law for the military and government personnel.
76. There are, of course, issues in the report which require further thought and consideration as they have significant resource implications. The Special Rapporteur notes that the report acknowledges that poverty and the lack of sufficient budgetary allocations for the protection of social and economic rights are at the root of the problem of forced labour in the country. The lack of assistance from the international community coupled with declining government revenues, noted the report, means that the capacity of the Government to implement more fundamental structural and programmatic reforms is constrained.
77. Finally, the Special Rapporteur shares the particular concern expressed in the report in regard to the involvement of the military in the use of forced labour. This concern stems from, inter alia, reports from the three regions of the country which pose the largest security problems for the people of Myanmar. He has also taken note that the allegations of forced labour are linked to the "self-reliance" policy of the government armed forces. The report notes that the absence of mechanized equipment, including helicopters, leads to civilians being required to porter. It is suggested that the number of troops be reduced in order to alleviate resource requirements. But a modern, smaller army will also need a great deal of capital investment and recurrent expenditure in order to achieve the level of security which the situation requires, and no such resources exist.
78. The Special Rapporteur thinks that human development and economic modernization must take place to defeat the poverty that is at the root of Myanmar's many problems. Rational management of the economy and more budgetary allocations for the protection of economic, social and cultural rights must be top priorities in tackling those problems. In order to maintain the pace of reform, assistance and support from international organizations and the United Nations system is also required. Capacity-building measures must be taken to strengthen the fiscal and administrative capacities of the Government to ensure that the necessary resources and personnel are available to maintain momentum.
C. Economic, social and cultural rights
1. Tertiary education
79. During his fact-finding mission, the Special Rapporteur started looking at the situation of education at the tertiary level. During his next mission he intends to take up the situation of basic education. Tertiary education had been deteriorating since Ne Win came to power in 1962 and had suffered from many years' isolation, stagnation and repression. By 1988 the Government had become concerned about student unrest and began to implement a policy similar to Ne Win's which involved geographical dispersing of institutions and reducing terms of study for students. After 1988 all civilian universities, except universities for distance learning and foreign languages, and many colleges began to be closed down and by 1999 they had been shut for up to eight years. As a result, was an enormous backlog of students waiting to start and/or finish their degrees. Such a backlog, coupled with inadequate resources for education, presented a huge challenge for the authorities who in the last couple of years have started making a number of reform efforts to rectify the situation.
80. Gradual reopening of institutes of higher learning started in 1999. Institutions of medicine for third year to final year medical students were reopened in January 1999; universities for third year to fourth year engineering students in December 1999; Yangon University for final year students in June 2000. In July 2000, all remaining classes at all universities and institutions were reopened. In parallel, efforts have been made to build new institutes of higher learning and to upgrade and modernize existing education facilities. The duration of courses has been reduced by one year at all institutes and universities except for those of medicine and dentistry. Though the duration of courses has been shortened, syllabuses remain the same.
81. At the meeting with the Minister of Education, the Special Rapporteur was informed that there were 124 institutes of higher learning in the country with a student population of 555,203 in 2001, compared with 31 institutes in 1988 with about 134,000 students. These institutes are administered by 11 different ministries, including those responsible for education, health, culture, forestry, agriculture and irrigation, livestock breeding and fisheries, cooperatives, science and technology, religious affairs, the civil service selection and training board, and progress of border areas and national races and development affairs. Although the ministries are autonomous in the administration of their respective institutes, they follow a uniform policy regarding qualifications and curricula, which is determined by the University Council headed by the Minister of Education and composed of representatives of these ministries. According to the Minister, institutes and colleges are now open in every state and division, and two more universities and one college will be opened in 2002 in Yangon, Kyaukse and Bamaw, respectively.
82. In reply to the Special Rapporteur's question about the reasons for relocating tertiary education institutions to new satellite towns and spreading them across the country, he was told that this had been done to improve their accessibility and increase their capacity. An explanation was provided with reference to Yangon University, which was initially designed to receive 8,000 students. Now two new universities exist in its place: the East Yangon University in Tarwa, Thanlyin (with 3,417 students in 2001) and Dagon University in Dagon, a new satellite town (with 13,530 students in 2001). Another one -the West Yangon University -is planned to be opened in June 2002 in Htantabin. Not only are those campuses far from the one in the centre of the city, but access to the latter is now restricted; the Yangon University main campus now takes only post-graduates and diploma students (5,189 in 2001).
83. In the Special Rapporteur's view, a quadrupling of the number of students can be linked to at least two factors: (i) the opening of tertiary education facilities across the country should have contributed to easier physical access, and (ii) the popularity of distance education continues to increase, particularly among those who are not are qualified enough to attend professional institutes such as medical, engineering and computer schools, and it is cheaper and easier to obtain a bachelor's degree while combining study and work. 11 This observation is supported by enrolment figures in recent years. In 1999 the number of distance education students was about 178,000 as opposed to the total number of about 140,000 students enrolled in all other tertiary institutions in the country; in 2001, these figures were about 350,600 and 204,600, respectively. Distance learning is administered by the Yangon and Mandalay Universities of Distance Education and is based on an "e-education system" whereby lectures are transmitted to "learning centres" throughout the country and coursework is done by correspondence.
84. In the course of his mission, the Special Rapporteur observed some of the examples of the Government's efforts to upgrade and modernize education facilities. Thus, he visited the large and brand new buildings of the Union Solidarity and Development Association (USDA), 12 which runs parallel non-formal education courses across the country. He also visited the new Buddhist Missionary University, which was opened in 1998 as a centre for higher learning of the theory and practice of Theravada Buddhism under a special Government-sponsored project. It is unique in a sense that all students admitted to this university benefit from full scholarships covering all costs, including tuition, books, accommodation and boarding. As at October 2001, there were 146 students, including 76 from 16 foreign countries, and 34 members of the faculty. According to the project, the university should be able to receive 1,200 students in 10 years.
85. The Special Rapporteur also visited Yangon University where in contrast he noted a need for significant investment to improve its overall infrastructures. It was encouraging however, to see that the university had a modern computer lab and its Department of Historical Research had access to the Internet. During his visit he saw students working in the computer lab. He was informed that apart from the above-mentioned department, only the Department of Higher Education, the Education Resource Bureau and the Minister of Education had access to the Internet. He also learned that after the installation of appropriate equipment a wider circle of institutes would have direct access to the Internet, which could happen next year.
86. The Special Rapporteur's team visited the University for Development of National Races in Sagaing, which, having been established in 1964, was upgraded to the university level in 1991 and had impressive new infrastructure. As at October 2001, there were 1,050 students representing all national races of Myanmar and 380 teaching staff. The university had a very well-established material base, which was perhaps due to the fact that it had been under the direct control of the SPDC Chairman. There the team saw, among other things, fully equipped computer and language labs, a CD-ROM library and modern classrooms; this was very encouraging to see, but at the time of the visit they could not be used because there was no electricity supply. The team asked to see the library but it was closed on that day. The team was shown a video, according to which the preparation of students at this university was based on combining education from books with work practice with a view to nurturing good leaders who bear in mind the "three main national causes of Myanmar: non-disintegration of the Union; non-disintegration of national solidarity, and perpetuation of national sovereignty".
87. Despite the greater number of institutes of higher learning opened since 1999 and recent efforts to upgrade some education resources, the increase in the number of non-distance education students has been 2.7 times less than that of distance education students. A number of factors may have contributed to this. Among them, the Special Rapporteur can name the severe financial and human resource constraints such as lack of teachers and a relatively weak material base (for instance, books, libraries, science laboratories, access to the Internet, drinking water and electricity supply), with the exception of a few institutions such as those he visited and described above; this leads to poor quality education, thus discouraging students from enrolling. The tuition fee, which is 500 kyats per month (less than US$ 1) for the traditional universities and 1,500 kyats for the whole year for universities of distance education may also be a contributing factor.
88. The Special Rapporteur has received information about political conditions for admission to universities and poor professional training of education personnel. Reportedly, all students attending institutes and universities are required to submit official recommendation letters issued by a local authority (ward/village-level peace and development councils) as well as by a local police station testifying that they are not involved in politics and are of good moral character. He was also informed of tight security surveillance of campuses, a "brain drain" from the public education sector to the growing private sector (for the minority who can afford it) and of children of political detainees being denied access to higher education despite having adequate academic results. He has also received information that the military ensure that its associates obtain a tertiary education, inter alia through their own institutes of learning such as the Defence Services Academy and well-equipped military legal, medical and engineering universities. Well-to-do families and their relatives may also send their children abroad for university education. The Special Rapporteur hopes to be able to look into these areas in a constructive manner during his next mission.
89. The Special Rapporteur is encouraged to note the remarkable rate of female enrolment at the tertiary level. In many institutions the admission of female students is on the basis of a fixed gender ratio. For instance, female student admission is 50 per cent in computer schools and institutes of education and 40 per cent in engineering schools. In many places, female students even outnumber males, which is the case, for example, in institutes under the Ministry of Culture where the gender ratio is currently 483 female students as opposed to 231 males. The same ratio in institutes under the Ministry of Education is 61.3 per cent women and 38.7 per cent men.
90. The Special Rapporteur could not find information from government sources about the exact proportion of the State budget allocated to the education sector, but he was told that the education budget was the next largest, after that for infrastructure, with more funds directed to tertiary education than for basic education. According to the latest figures from other sources, government spending on tertiary education has declined from 0.25 per cent of GDP in 1994/95 to 0.17 per cent in 1999/2000, which is extremely low by international standards, especially given the seriousness of the challenge of reforming higher education. 13
91. Overall, the Government's efforts in reopening all institutes of tertiary education, building new and upgrading existing education facilities, and promoting female enrolment are very encouraging. The Special Rapporteur is of the view that the Government should consolidate its gains through the allocation of a far greater level of resources with a focus on filling the existing establishments with better quality education. To do so, there should be better targeting of investments to address critical areas such as teacher training and strengthening evenly the material base of universities and institutes.
2. HIV/ AIDS
92. The speed at which HIV/AIDS has spread in Myanmar is a matter of great concern. Briefings that the Special Rapporteur had received during his fact-finding mission from the United Nations Country Team, the Ministry of Health and NGOs painted a truly alarming picture. With an infection rate of about 2 per cent, Myanmar stands second in rate of infection in the region. Taking the UNAIDS estimate of over 500,000 people who may already be infected, almost 1 in every 100 persons may be in danger.
93. The Government has been combating the HIV/AIDS problem through a multisectoral approach. Education programmes for the public as well as risk populations are being implemented in the country. Support for syndromic management of sexually transmitted infections, a 100 per cent condom use programme, prevention of mother-to-child transmission, a blood safety programme, and care and counselling for people living with HIV/AIDS is initiated by the Government with the assistance from United Nations agencies and international NGOs. These efforts will need to be significantly intensified in a determined and concerted manner as a matter of high priority as the next five years will be critical in determining the future trajectory of the epidemic. Unless that is done now, HIV/AIDS will become a major problem in the country as it may kill in a matter of years more people than all internal conflicts have in several decades. It is primarily the young generation which will bear the brunt of the epidemic. Only through broad-based social mobilization and advocacy for preventive and curative action integrated into a national comprehensive and sustained campaign led by the highest levels of authority, with appropriate international assistance, can this epidemic be curbed. In this respect, the Special Rapporteur welcomes the launching in October 2001 of the United Nations Joint Plan of Action on HIV/AIDS in Myanmar for 2001-2002. The implementation of the plan will require approximately $16 million, of which $4.6 million have so far been made available by co-sponsoring United Nations agencies.
94. Given new challenges posed by the spread of HIV/AIDS, public spending on health should be appropriate. It was worrying that government spending on health care had declined from 0.38 per cent of GDP in 1995/96 to 0.17 per cent in 1999/2000. 14 However, the Government claims that its health expenditure in 2000/01 has gone up to 0.305 per cent of GDP.
III. OTHER ISSUES
A. Ceasefires
95. Progress in achieving peace through ceasefires with various ethnic armed groups, accompanied by development efforts, was the remarkable success of the government initiatives (largely associated with the SPDC Secretary-1, Lt. General Khin Nyunt) during the 1990s. At the meeting in Yangon with leaders of former insurgent groups, the Special Rapporteur witnessed their appreciation of unprecedented peace and security which their people had been enjoying after the ceasefires. Recalling that their lands had been in turmoil because of armed conflicts for several decades, they seemed to be satisfied with the choice they had made on behalf of their people and sounded hopeful about their future economic and social development. The Karenni National People's Liberation Front, for instance, is one such group. It agreed on a ceasefire with the SPDC on 9 May 1994, but still keeps arms (about 2,000 men); its territory is structured into the Kayah State Special Region 2, and the people are engaged in agriculture, logging, mining, and construction of roads. 15 A leader of one splinter group of the Karen National Union, which exchanged arms for peace on 17 April 1998 and settled in the Payagon Special Region, informed the Special Rapporteur that the group had since implemented livestock breeding and agricultural projects for which, inter alia, it won a prize from FAO in 1999 for achievements in the poultry area; they used to live in small huts but now they had houses with electricity and larger plots of land.
96. In Shan State, the Special Rapporteur's team, because of the urgent need for his evacuation from Lashio to the Mandalay general hospital, quickly visited Namtit in the Wa Special Region and the border town of Muse. The team was able to observe how former conflict areas were being transformed into peaceful development zones with positive achievements in infrastructure development, trade and large-scale agricultural production. The mission would have visited another important ceasefire area in Kachin State if the visit had not been suspended.
97. During the mission the Special Rapporteur could not obtain the text of a peace agreement from any of the ceasefire groups he had met. He was given to understand that there is no political activity in ceasefire areas, and ethnic groups there have de facto autonomy in running their territories. The central Government is represented only by a military presence and development workers. Some of the groups retain their arms, which, however, does not cause security problems, according to government interlocutors, and all ceasefire groups work together with the Government on developing their respective regions. The Special Rapporteur believes that a regular, substantive and transparent access to those areas to conduct research is required before he can speak objectively and authoritatively about the multiple factors which contributed to these developments. The rights to peace and security are fundamental human rights. Their enjoyment may contribute to laying the foundations of economic development, but the effective social benefits of such development need to be assessed and the political and institutional expression of what appears to be semi-or largely autonomous areas within the Union of Myanmar remains to be formulated.
B. Refugees and internally displaced persons
98. The Special Rapporteur continues to receive reports and allegations of serious violations of human rights of civilians in areas of conflict between the army and armed groups, particularly in eastern Kayin and Kayah States, southern Shan State, northern Sagaing Division, and Rakhine and Chin States. As usual in this type of conflict, it is the poor and defenceless population which is pressured, violated and victimized by different armed forces that cross their communities. Such violence is largely arbitrary, summary and indiscriminate. This results in large internal displacements and influxes of refugees across borders. The mandate of the Special Rapporteur requires the examination of these allegations in an impartial and objective manner, and he has started doing so. This is a meticulous process, which he intends to pursue during his next missions so as to establish gradually a credible factual account of the human rights situation in these areas.
99. These conflicts have devastated the lives of hundreds of thousands of people across Myanmar for far too long. An estimated 400,000 refugees are currently living in neighbouring countries. An average of 300-700 new asylum-seekers may cross into Thailand every month; this cannot continue. Some of the refugees are provided with temporary shelter and protection. The others live outside camps and without assistance support and have to look for means of subsistence as illegal immigrants, with the constant risk of being exploited, trafficked, or forcibly returned to Myanmar.
100. Reportedly, most of the asylum-seekers arriving in Thailand had previously lived for some time as internally displaced persons (IDPs). Independent monitoring or assistance to IDPs has so far not been authorized by the SPDC and it is thus very difficult to verify their number in Myanmar. Unofficial estimates place the current number of IDPs in Myanmar at from 600,000 to 1 million persons, with around 300,000 in north-eastern Shan State, 100,000-200,000 in Kayin State, 70,000-80,000 in Kayah State, 60,000-70,000 in Mon State and about 100,000 in northern Rakhine State.
101. As soon as objective factors and credible guarantees are in place for voluntary, safe and dignified repatriation, the refugees should be allowed to return to Myanmar. The Special Rapporteur believes that both Myanmar and its neighbours have an obvious interest in resolving the matter of the ongoing insecurity along their common borders, with the related transnational issues of refugees, displaced persons, trafficking, and exploitation of natural resources. A peaceful settlement of these matters is also in the interests of the Association of South-East Asian Nations (ASEAN) and the region as a whole.
C. Child soldiers
102. The Special Rapporteur thinks that the whole issue of the voluntary and/or forced conscription of children into the armed forces and the various ways in which they are used by these forces needs to be factually established on the basis of first-hand evidence. Reports that he has received show that much of the current knowledge of the issue seems to lack a solid factual basis for what is presented nevertheless as a widespread phenomenon and pattern. To raise the issue in a convincing manner requires thorough research, documentation, and establishment and verification of the facts, which the Special Rapporteur intends to start during his next fact-finding missions.
D. Violence against women
103. The Special Rapporteur raised the issue of violence against women during his meeting with the Myanmar National Committee for Women's Affairs (MNCWA), a national mechanism for women's affairs. From the briefing received there and other related information in his possession, it is clear that the Government of Myanmar recognizes the existence of various forms of violence against women in Myanmar, but lacks accurate data to define comprehensively the situation across the country.
104. The Special Rapporteur was informed that from the limited information gathered from hospitals, the judiciary and police departments, it has been found that violence against women exists in Myanmar in two forms: domestic violence and violence in the community, with the former being more prevalent. As the first step in tackling the problem, in 1997 the MNCWA launched a nationwide survey on domestic (marital) violence. In 1997/98, a survey was conducted in Yangon Division, in 1999 in Mandalay, Magwe and Taninthryi Divisions and Shan State. Surveys have now been carried out in all the remaining states and divisions, but their findings have yet to be finalized at the national level. The preliminary findings of the research reveal that there is more mental violence than physical violence in the domestic context. Poverty, alcoholism, incompatibility with in-laws and adultery are reported to be main causes of violence. The majority of victims do not seek help from anyone in view of a social stigma against women making their personal affairs public. Some ask help from parents, and only a few from community elders or neighbours.
105. The Special Rapporteur was informed that as a follow-up to the survey, more than 24 counselling centres have been established in the country to provide help and support for the victims of domestic violence. The MNCWA also set up a committee to receive communications regarding the incidence of violence against women. In 2000 the committee received and channelled to appropriate departments 2,034 complaints.
106. Trafficking is seen by the MNCWA as a form of violence against women, and a special national task force comprising representatives of the Government and NGOs has been created to deal with the problem. So far its main focus has been on prevention and promotion of education and income-generation. Under the Ministry of Progress of Border Areas and National Races, eight training centres have been established to provide vocational training to girls and women as a measure to address one of the root causes of trafficking. Rehabilitation/protection work has been limited in view of the scarcity of reported cases within Myanmar and the lack of the possibility to pursue cases outside the country. Accordingly, the extent of the problem remains unknown.
107. The Special Rapporteur welcomes the efforts of the Government of Myanmar to address the issue of violence against women and encourages it to broaden its focus to cover violence in the community, particularly in areas of conflict between the army and armed groups where the most serious forms of violence against women are reported.
E. Humanitarian aid
108. In his interim report and statement to the fifty-sixth session of the General Assembly, the Special Rapporteur noted the existence of a complex humanitarian situation in Myanmar, which threatens to worsen unless it is promptly and properly addressed by all concerned. Among the areas in most need of significant improvement is the situation of vulnerable groups, inter alia the poor, children, women and ethnic minorities and, in particular, those among them who have become internally displaced in zones of conflict between the army and armed groups.
109. In the view of the Special Rapporteur, the human, technical and financial means to address the situation effectively exist, domestically and/or internationally. In the wake of international sanctions, multilateral and bilateral assistance had shrunk and the United Nations has emerged as the largest source of aid, which is mainly humanitarian. At present, 68 per cent of official development assistance (ODA) is channelled through United Nations agencies operating in the country. 16 In this regard, the Special Rapporteur supports the call of the United Nations Country Team for an increase in ODA for Myanmar through the United Nations system and for a more consistent approach to the issue of assistance to Myanmar on the part of the policy-making bodies of United Nations agencies (i.e. executive/governing boards).
110. The Special Rapporteur is aware that to address the humanitarian situation more adequately, the commitment of the Government should go hand in hand with the involvement of the NLD in the planning and managing of international humanitarian assistance. It is also necessary to have reliable data and look into the logistical aspect of humanitarian assistance. The creation of some sort of international assistance advisory body has been proposed by some as one possible way of securing the safe delivery of humanitarian assistance.
111. One proposed possibility was the establishment of a functional committee with a mixed composition under the patronage of the United Nations coordination system with the role of monitoring and evaluating assistance provided to Myanmar. Such a committee could be one element of the trust-building process initiated through the dialogue between the Government and the NLD, thereby linking national peace/reconciliation promotion and political consultation and participation of key stake-holders: the Government, the democratic opposition, ethnic groups, NGOs and women. At the same time, such a committee could create a favourable environment for international assistance to the country. The United Nations Country Team-sponsored programme on combating HIV/AIDS could be one possible entry point.
112. The Special Rapporteur welcomes the valuable assistance efforts of the international NGOs which operate among the most vulnerable groups in Myanmar with complete control over and monitoring of their assistance. In fact, at present their capacity for operation is much greater than the current level of aid channelled through them. There are 29 international NGOs operating in Myanmar, of which 16 are subcontracted by United Nations agencies. Assistance from these NGOs has increased from $4.5 million in 1999 to more than $7 million in 2000. 17 They provide direct services such as food, health care and shelter and/or support development projects that help build local capacities.
113. The Special Rapporteur is convinced that the humanitarian situation requires encouraging the international NGOs to develop their activities. In order for them to do so, it is essential that the relationship between the Government of Myanmar and the international NGOs operating in the country continue to improve. In this regard, he is concerned about recent restrictive measures affecting their operation. Last June there were reportedly two isolated incidents involving the brief detention of some NGOs staff. Last July the Department of Health instructed all those NGOs working with it that every time they travelled to the field, they must be accompanied by department staff. Since September 2001 the expatriate staff and their family members are no longer eligible for gratis visas and there are difficulties regarding the importation, purchase and registration of vehicles. In the last two to three months, NGOs were not allowed to have more than three staff for educational activities. The Special Rapporteur stresses the crucial importance of creating a positive environment for the operation of international NGOs and hopes that these restrictions will soon be rescinded. It is in the best interests of the SPDC to demonstrate to the international community that these organizations do operate freely, within the laws of the country, thus facilitating their access to funding and contributing to the alleviation of the existing humanitarian situation.
IV. CONCLUDING OBSERVATIONS
114. The Special Rapporteur does not underestimate the fragility of progress and that it sometimes may be hampered by the many factors that are involved in the present situation. While he recognizes that the complexity of the situation in Myanmar requires some patience, the confidence-building process is already one year old and in the opinion of many observers is going rather slowly. Undeniably, the political atmosphere in the country is very gradually improving and some basis of mutual understanding has begun to emerge between the SPDC and NLD. Precisely because of these positive signs, one would hope that the confidence building would be followed by bolder moves that could lead the political initiatives engaged a year ago to the next phase.
115. It is important that the SPDC carry forward the present political process. In this regard, the Special Rapporteur notes the following:
(a) The human rights capacity of the State must be enhanced in accordance with the need for the prevention and monitoring of human rights violations and for the State agents involved in those violations to be held accountable;
(b) The full and unconditional release of all political prisoners should proceed more rapidly. Given the very slow pace of releases and the large number of political prisoners remaining, it is important to find ways to speed up the process;
(c) It is necessary for the Government to promote a substantial enlargement of space for civil society, political parties and ethnic nationalities to function, by creating conditions for the full exercise of basic political freedoms. In particular, the Government should consider revising the existing laws on the organization of political parties with a view to creating non-discriminatory conditions for the exercise of the right to freedom of political association. Transition experiences elsewhere show that without effective progress towards the rule of law and impartial institutions, a political transition could result in a continuation of many exploitative and non-democratic practices and, quite possibly, a high level of violence. 18 The people of Myanmar cannot wait for democratization to begin to rebuild and consolidate civil society organizations. Likewise, the international community should not wait for the conclusion of a transition process to support autonomous and independent projects that could contribute to the activation of civil society. Thus, it is more important than ever to ensure that political parties and civil society organizations function freely;
(d) The Government must create conditions for the equal application of minimum standards for the treatment of prisoners, addressing at the same time the pockets of vulnerability among the prison population such as the sick, the elderly, juveniles and women, especially those with children and who are pregnant;
(e) More resources need to be allocated to the reform of the education sector, in particular tertiary education and investments better targeted to address critical areas such as teacher training and strengthening evenly the material base of universities and institutes;
(f) Broad-based social mobilization and advocacy is essential for preventive and curative action against HIV/AIDS; this should be integrated into a national comprehensive and sustained campaign led by the highest levels of authority and supported by appropriate international assistance;
(g) The situation of human rights in Myanmar would benefit from broadening the focus of efforts to combat violence against women to cover violence in the community, particularly in areas of conflict between the army and armed groups where the most serious forms of violence against women are reported;
(h) The Government, its armed forces and the armed opposition groups should exercise maximum restraint and respect international humanitarian law relating to the protection of civilians and prisoners, and consider alternative avenues for resolving their differences notably through political dialogue;
(i) In order to address the humanitarian situation more adequately, it is crucial that the commitment of the Government go hand in hand with the involvement of the NLD in the planning and managing of international humanitarian assistance;
(j) It is time to start a substantive dialogue with the leaders of the NLD and all other political parties and ethnic nationalities if the Government is serious about achieving national reconciliation and the restoration of democracy. Nothing can help Myanmar better in this regard than the building of democracy through an all-inclusive, accountable and fair process.
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Notes
1 The CRPP was established by the representatives of the NLD and ethnic nationalities' parties elected in the 1990 elections.
2 The Special Rapporteur was unable to assess whether de-registrations had been effected in accordance with the law.
3 Among such laws are the Emergency Provisions Act (1950), the Printers and Publishers Registration Act (1962), the Official Secrets Act (1948), State Law and Order Restoration Council (SLORC) Order 8/88 (1988), SLORC Order 5/96 (1996), the TV and Video Act (1996) and the Computer Science Law (1996).
4 The news about releases of political prisoners started to be announced officially for the first time in January 2001. It is, however, unclear to the Special Rapporteur why such announcements appear to be directed at audiences outside Myanmar, as he understands that none of these releases has been reported in the official media. 5 For instance, in October 2001 a total of 14 releases were reported (5 coinciding with the Special Rapporteur's visit, preceded by 1 and followed by another 8); in November, there were 8 more releases (all of them NLD members).
6 The prison system is governed by the 1894 Manual of Rules for the Superintendence and Management of Jails in Burma, Part I.
7 The daily diet for the staff and prisoners in camps is established by instructions issued on 6 February 1978, according to which prisoners should get every day 1 ounce of fish paste, 10 ounces of vegetables, 1 ounce of cooking oil and 4 ounces of dal, and 4 ounces of meat twice a week.
8 According to the "Instructions for Providing Diet for the Prisoners in the Camps and State Building Projects" issued on 24 May 2001, prisoners in camps have a new daily ration of rice of 28 ounces, increased from 26 ounces.
9 Remuneration appears to be different depending on the type of camps. According to notification No. 1/98 of 25 August 1998, 50 per cent of net profit gained from the New Life Agricultural Production Camps should be distributed among the labourers.
10 Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention (No. 29): report of the High-Level Team (GB.282/4), ILO Governing Body, 282nd Session, Geneva, November 2001.
11 Reportedly, the official policy also encourages distance learning to keep the student population dispersed.
12 The USDA was created under the patronage of Senior General Than Shwe in 1993. It has two wings: 9 million junior members (10-18 years old) and 8 million senior members (older than 18). The Special Rapporteur has been told that the USDA's most significant activity is "awareness-raising": training courses in thematic areas (e.g., social welfare, Myanmar culture, foreign relations, etc.). Another important activity is participation in "nation-building" projects. Participation in these activities was said to be voluntary. Besides being devoted mostly to social welfare, the USDA was referred to in 1997 by General Maung Aye as an "ancillary national defence force".
13 Asian Development Bank, "Economic Update. Myanmar", November 2001, p. 7.
14 Ibid., p.6.
15 Allegedly, some ceasefire groups also grow poppies.
16 Asian Development Bank, op. cit., p. 8.
17 Ibid.
18 International Crisis Group, "Myanmar: The Role of Civil Society", 6 December 2001, Asia Report No. 27, p. 28.
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Annex I
Programme of the fact-finding mission of the Special Rapporteur
Tuesday, 9 October 2001
11.35 Arrival in Yangon, welcome by Ambassador U Win Mra, Director-General of the International Organizations and Economic Department, Ministry of Foreign Affairs
12.30 Briefing with the United Nations Resident Coordinator
14.00 Call on H.E. U Win Aung, Minister for Foreign Affairs
16.00 Call on H.E. Colonel Tin Hlaing, Minister for Home Affairs
17.15 Meeting with the ICRC Head of delegation
19.00 Dinner hosted by Ambassador U Win Mra
Wednesday, 10 October 2001
09.30 Call on H.E. U Aung Toe, Chief Justice
10.30 Call on H.E. U Tha Tun, Attorney-General
11.30 Call on H.E. U Than Aung, Minister for Education
14.00 Call on H.E. Major General Ket Sein, Minister for Health
15.30 Call on H.E. U Tin Winn, Minister for Labour
17.00 Meeting with Daw Khin Khin Tun, Director, National Archives.
18.15 Meeting with various members of the diplomatic community (representatives of Bangladesh, Nepal, Sri Lanka, India, China, Egypt, the Russian Federation, Yugoslavia and Australia)
19.30 Meeting with the business community
Thursday, 11 October 2001
08.30 Meeting with diplomats from the ASEAN countries (representatives of Brunei Darussalam, Cambodia, Indonesia, the Lao People's Democratic Republic, Malaysia, the Philippines, Singapore, Thailand and Viet Nam)
10.00 Meeting with members of subcommittees of the Human Rights Committee (chaired by H.E. U Khin Maung Win, Deputy Minister for Foreign Affairs)
11.30 Meeting with the Myanmar National Committee for Women's Affairs (Dr. Daw Khin Win Shwe, Dr. Daw May May Yi and members)
12.45 Briefing with the United Nations Country Team (UNICEF, WHO, UNDCP, FAO, UNHCR, UNDP)
14.00 Meeting with representatives of international NGOs
15.00 Meeting with the Ambassador of the United Kingdom
16.00 Courtesy call on H.E. Lieutenant General Khin Nyunt, Secretary-1 of the State Peace and Development Council
20.00 Meeting with diplomats from the OECD countries (representatives of France, Germany, Italy, Japan, Republic of Korea and United States)
Friday, 12 October 2001
09.00 Meeting/seminar with Daw Ni Ni Myint, Director-General of the Department of Historical Research, U Thaw Kaung and Dr. Tun Aung Chain at Yangon University, followed by a meeting with teachers and students
10.30 Meeting with U Myo Myint, Director-General, Department of Religious Affairs, Ministry of Religious Affairs
11.30 Meeting with Dr. Hla Pe, Rector of the International Theravada Buddhist Missionary University, Prof. U Sat Tun Hmat Win and Bamaw Sayadaw of the same university
13.00 Meeting with Ambassador U Win Mra
16.00 Meeting at the Union Solidarity and Development Association (H.E. U Than Aung, Minister for Education)
17.00 Meeting with representatives of a number of groups participating in the ceasefire
18.00 Meeting with representatives of ethnic nationalities' parties of the Committee Representing the People's Parliament
Saturday, 13 October 2001
06.00 Arrival in Lashio
10.10 Meeting with the Commander of North East Command, Thiha Thur Tin Aung Myint Oo
12.00 Visit to Lashio prison
15.30 Proceed to Wa regions by helicopter to meet with Wa leaders and visit Namtit (U Airon Ike, U Li Si U, Plein Ka, Chao Ni Zi Yao, Hu Bao U Chan)
Evening Return to Lashio
Sunday, 14 October 2001
08.00 Leave Lashio for visit to the border town of Muse by helicopter (Colonel Myint Thein)
13.00 Return to Lashio by helicopter Afternoon Visit to the Hton Bo labour camp
Monday, 15 October 2001
08.00 Arrival in Mandalay
10.00 Meeting with the Commander of the Central Command, Major General Ye Myint
12.00 Meeting at the National League for Democracy (NLD) branch office in Mandalay
Tuesday, 16 October 2001
Morning Arrival in Sagaing; visit to the University for Development of National Races
Afternoon Visit to the Mandalay central prison
Wednesday, 17 October 2001
08.00 Return to Yangon
13.00 Meeting with the United Nations Resident Coordinator
16.00 Meeting with H.E. U Win Aung, Minister for Foreign Affairs
17.00 Meeting with Daw Aung San Suu Kyi, General Secretary of the NLD, and senior NLD members
19.00 Meeting with H.E. U Khin Maung Win, Deputy Minister for Foreign Affairs
19.50 Departure of the Special Rapporteur
Thursday, 18 October 2001
Work of the team at the UNDP office
Friday, 19 October 2001
11.00 Meeting of mission team with the NLD Executive Committee at its headquarters
15.00 Meeting of mission team with international NGOs and ICRC Head of delegation
Saturday, 20 October 2001
17.00 Meeting of mission team with the United Nations Resident Coordinator
19.50 Departure of team
___________________________________
Annex II
Humanitarian cases
1. Myint Maung Maung, male, aged about 30; reportedly detained in Mandalay central prison; reportedly transferred to a hospital near the prison in June 2001 after he become paralysed in both legs.
2. U Tun Aung Kyaw, teacher aged about 50; arrested and sentenced in 1990 to five years at hard labour; contracted tuberculosis in prison; released in 1994 but rearrested while receiving anti-tuberculosis treatment in hospital and sentenced to seven years at hard labour for possessing a book written by a foreign author about transitions from authoritarian to democratic political systems; visited by the Special Rapporteur on 15 October 2001; continues to suffer from chronic lung ailments and frequent attacks of fever.
3. U Aye Tha Aung - Secretary of the CRPP representing four ethnic nationality parties; arrested and reportedly given three sentences of seven years on three separate charges (21 years in prison) and detained in Insein prison; reportedly seriously ill and held in the section of the Yangon General Hospital reserved for prisoners.
4. U Win Tin, male, aged 71, well-known journalist and writer, member of the Central Executive Committee (CEC) of the NLD, of which he is the only remaining senior figure detained; held since 1989 in Insein prison where he is serving a total of 20 years' imprisonment; health reportedly very poor due to his age, treatment, and his conditions of imprisonment.
5. Paw U Tun, Chairman of ABSFU; arrested on 24 March 1989 in connection with the activities of the student union; detained in Sittwe, Rakhine State, sentenced to 20 years' imprisonment, commuted to 10 years in 1993; his prison term expired in March 1999; his health, both physical and mental, is a matter of serious concern.
6. Khin Maung Yi (alias Tin Aye) , ABSFU CEC member; reportedly arrested on 13 July 1989, for alleged connections with the defunct Communist Party of Burma; sentenced to 20 years in prison in Mandalay, commuted to 10 years in 1993; his term expired in July 1999.
7. Htwe Myint, aged about 72 years, reportedly a member of the Democracy Party detained in Insein since June 1995 for allegedly distributing political pamphlets critical of the Government; health is reportedly poor.
8. Khin Ma Than (Nge Ma Ma Than) , female, aged about 64; arrested in June 1997 and sentenced to 10 years in prison for alleged high treason and violating the unlawful association act; detained in Insein prison; her age and prison conditions are matters of concern.
9. Nai Ngwe Thein, male, aged about 76; arrested for the third time in September 1998 (previous arrests 1991 and 1994) in connection with his alleged support for the CRPP and sentenced to 14 years in prison, which he is serving in Insein prison; his age and poor detention conditions are matters of concern.
10. Than Chaung, male, aged about 72; coffee shop owner arrested in December 1999 for playing a foreign Voice of America radio broadcast loudly in his shop, and sentenced to two years in prison, which he serves in Thayet.
11. Thein Dan (or Tan) , male, aged about 70, publisher and NLD executive committee member; arrested in September 1990 for peaceful expression of his political views and sentenced to 17 years in prison, commuted to 10 years in 1993; detained in Thayet prison.
12. Dr. Zaw Min, male, aged 42; medical doctor arrested in 1989 for alleged contacts with illegal political organizations and sentenced to 20 years in prison, commuted to 10 in 1993, which he is serving in Mandalay central prison; visited and interviewed by the Special Rapporteur on 15 October 2001; appeared to be psychologically disturbed as a result of his arrest and detention.
___________________________________
Annex III
Persons who reportedly received prison terms for communicating, trying or intending to communicate, or being suspected of communicating human rights information to the United Nations
A. Persons allegedly detained in connection with the visit to Myanmar of the former Special Rapporteur, Mr. Y. Yokota
These persons were arrested in August 1994; they reportedly continue to be detained in Myitkyina prison, Kachin State. Charges against them reportedly include communicating, or attempting to communicate information to the Special Rapporteur, Mr. Y. Yokota in connection with his visit (Ms. San San Nweh, arrested with them, was reportedly released on 18 July 2001):
1. Khin Zaw Win (alias Kelvin)
2. Sein Hla Oo
3. Khin Maung Shwe
B. Other persons who reportedly received additional sentences for having communicated, or attempting or intending to communicate information on human rights to the United Nations:
1. Ba Myo Thein, born 1954, agricultural technician, arrested in 1990 and sentenced to seven years in prison on charges of contact with exiled opposition; given an additional seven years for allegedly signing a letter on prison conditions that was to be sent to United Nations; detained in Pathein prison.
2. Dr. Zaw Myint Maung, alias Dr. Myint Aung, born 1951, medical doctor, MP-elect for the NLD; arrested in November 1990; sentenced to 10 years in prison for allegedly participating in discussions about the formation of a parallel government in Mandalay; was among a group of prisoners in Insein who were given further prison terms (seven years) for allegedly writing to the Special Rapporteur about prison conditions; detained in Myitkyinia prison.
3. Kyaw Min Yu (alias Jimmy), student of physics, reportedly arrested in 1988/89 for peaceful political activities and sentenced to 20 years in prison (commuted to 10 years in 1993); was given seven additional years in 1996 for alleged involvement in plans to distribute news from foreign broadcasts in Insein prison and to contact the United Nations Commission on Human Rights about prison conditions; detained in Tharawaddy prison.
4. Hla Tun Aung, arrested in 1996 and sentenced to seven years in prison for allegedly "spreading false information to destabilize peace and tranquillity". Charges reportedly included making a videotape illustrating problems relating to rice production, which was intended to be sent to the United Nations Commission on Human Rights through the NLD; very poor health reported; detained in Myitkyina prison.
5. Kan Shein, rice farmer, arrested in 1996 and reportedly detained for seven years in connection with the same case as 4. above; detained in Thayet prison.
6. Po Aye, arrested in 1996 and reportedly detained for seven years in connection with the same case as in 4. above; detained in Mandalay prison.
7. Maung (Ko Thein Lin) , student arrested in 1996 and sentenced to seven years in prison, in connection with the same case as in 4. above; detained in Myitkyina prison.
8. Kyi Pe Kyaw, arrested in 1995 and sentenced to seven years in prison for allegedly illustrating with symbols deemed critical of the Government a magazine produced in Insein prison and for allegedly participating in a discussion to organize the sending of information on prison conditions to the United Nations; detained in Myitkyina.
9. Phyo Min Thein, arrested in 1991 for political activities and sentenced to 14 years; reportedly given an additional sentence in connection with same case as in 8. above; detained in Toungoo.
10. Myo Myint Myein, born 1960, editor of satirical magazine What is happening, deemed as "aiming at making people misunderstand the government and defence forces"; arrested on 12 September 1990 and given seven years in prison, with U Sein Hlaing, for alleged political activities. Was reportedly given another seven years in 1996 for allegedly preparing a magazine in Insein prison and discussing sending information to the Special Rapporteur; detained in Tharawaddy prison.
____________________________________
Annex IV
List of persons interviewed by the Special Rapporteur during his visits to Lashio and Mandalay
Interviews with the following persons were conducted completely confidentially (i.e. without the presence of a prison guard or official):
Detainees in Lashio prison (interviewed on 13 October 2001)
Than Sein, male, aged 30 Aye Soe, female, aged 29
Detainees in Hton-Bo 1 male labour camp (interviewed on 14 October 2001) Saw Gyi, male, aged 31 Soe Myint Oo, male, aged 24
Detainees in Mandalay central prison (interviewed on 15 October 2001) Khin Mar Kyi, female, aged 47 Tun Aung Kyaw, male aged about 50 Zaw Min, male, aged 42
Released prisoner (interviewed on 16 October 2001) Aung Soe, male, released from Myitkyina prison in July 2001.
************************************************************************************************************************************************************************************************************************************************
UNITED NATIONS
E
Economic and Social Council
Distr. GENERAL
E/CN.4/2003/41
27 December 2002
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-ninth session
Item 9 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS IN ANY PART OF THE WORLD
Report on the situation of human rights in Myanmar, submitted by
Mr. Paulo Sérgio Pinheiro, Special Rapporteur, in accordance with
Commission resolution 2002/67
Executive summary
The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar was established by the Commission in its resolution 1992/58 and extended most recently in resolution 2002/67. In its resolution the Commission requested the Special Rapporteur to report to the General Assembly at its fifty-seventh session and to the Commission at its fifty-ninth session. The Special Rapporteur accordingly submitted an interim report to the General Assembly (A/57/290 and Corr.1). The present report is based upon the findings of his third fact-finding mission to Myanmar undertaken in October 2002 and information received by him up to 10 December 2002 and is to be read in conjunction with his interim report.
The assessment of the Special Rapporteur is that:
(a) The political space is being gradually reopened for the National League for Democracy (NLD) to resume its activities. This should presumably, also be valid for other legal political parties, which have yet to resume their activities. Restrictions on the freedom of expression, information and the press are, however, still in place;
(b) There is now an apparent consensus within the State Peace and Development Council (SPDC) regarding the numbers and categories of political detainees and they have continued to be released. In general detention conditions have improved, although incrementally, in recent years. Physical ill-treatment of political prisoners, such as beatings, stopped where it had previously occurred and elderly prisoners have received regular medical attention; however, in several areas, political prisoners continue to be worse off than criminal offenders. Areas where further attention are required include the quality of food, the reported beating of common prisoners, and access to qualified medical attention and treatment, especially in emergencies;
(c) Political arrests since July 2002 have followed the pattern of “un-rule of law”, including arbitrary arrest, prolonged incommunicado detention and interrogation by military intelligence personnel, extraction of confessions of guilt or of information, very often under duress or torture, followed by summary trials, sentencing and imprisonment;
(d) Against the background of general respect for the practice of religion, there are local or regional variations. Respect for religious freedom appears to be better in places closer to central authorities than in remote or counter-insurgency areas;
(e) The voluntary and/or forced conscription of children into the armed forces and the various ways in which they are used by these forces is an issue in Myanmar;
(f) There appear to be serious problems with the way the army and armed groups treat civilians in ethnic counter-insurgency areas. These problems will not disappear by denying them and they should be recognized and addressed properly if they are to be resolved. Allegations will continue to be made as long as violations continue to occur. The way to address this issue would be to investigate allegations in a credible manner, to establish the facts, to take action against the perpetrators, to establish procedures to prevent their recurrence, to ensure control over army units and to compensate the victims. The Special Rapporteur took note of a communiqué issued on 4 November by the SPDC giving an initial positive reaction to his proposals regarding the investigation of allegations of human rights violations in ethnic areas, including allegations of rape in Shan State. He has sought clarification about the terms of the invitation to the United Nations to visit the region and reiterated his readiness to conduct an independent assessment under his mandate;
(g) In response to the precarious humanitarian conditions in Myanmar, the United Nations country team is preparing a framework document which is expected to function as a blueprint for direct action.
Principled engagement should remain the policy option concerning Myanmar embracing, among other elements, dialogue, support for change, empowerment of community, promoting civil society, and the enlargement of the presence and the capacity of United Nations agencies. To speed up progress towards peace and national reconciliation, it is more necessary than ever to build a rational discourse on policy and strategy alternatives. It is past time for the apparent stalemate that has so far characterized the contacts between the SPDC and the NLD to be overcome. Greater progress in the promotion and protection of human rights will help create an adequate atmosphere to break the impasse.
Member States and international organizations must follow the lead of domestic actors concerning the political transition. He therefore continues to urge the international community to engage with Myanmar even before the SPDC introduces democratic reforms.
CONTENTS Paragraphs Page
Introduction
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Fact-finding mission ......................................................... 3 – 7 5
B. Other activities ................................................................. 8 – 11 6
II. ENJOYMENT OF BASIC FREEDOMS AND
HUMAN RIGHTS ........................................................................ 12 – 34 7
A. Freedoms of association ................................................... 12 – 14 7
B. Freedom of expression, information and press ................. 15 – 16 7
C. Political prisoners ............................................................ 17 – 20 8
D. Conditions in prisons ........................................................ 21 – 24 9
E. Recent political arrests ..................................................... 25 – 28 10
F. Freedom of religion .......................................................... 29 – 30 11
G. Child soldiers ................................................................... 31 – 34 11
III. INDEPENDENT INVESTIGATION OF ALLEGATIONS OF
HUMAN RIGHTS VIOLATIONS IN ETHNIC AREAS .............. 35 – 46 12
IV. OTHER ISSUES ........................................................................... 47 – 50 16
A. Challenges of transition and development ......................... 47 – 48 16
B. Humanitarian aid ............................................................... 49 – 50 16
V. CONCLUDING OBSERVATIONS .............................................. 51 – 58 17
Introduction
1. The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar was established by the Commission in its resolution 1992/58 and extended most recently in resolution 2002/67 (approved by the Economic and Social Council in its decision 2002/269).
2. In its resolution 2002/67, the Commission requested the Special Rapporteur to report to the General Assembly at its fifty-seventh session and to the Commission at its fifty-ninth session, keeping a gender perspective in mind when seeking and analysing information (para. 8 (a)). The Special Rapporteur accordingly submitted an interim report to the General Assembly (A/57/290 and Corr.1). The present report is based upon the findings of his third fact-finding mission to Myanmar undertaken in October 2002 and information received by him up to 10 December 2002 and is to be read in conjunction with his interim report.
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Fact-finding mission
3. The Special Rapporteur conducted his third fact-finding mission to Myanmar from 17 to 28 October 2002. As during his previous missions, he received full cooperation from the Government, for which he expresses once again his sincere appreciation. He was able to carry out his programme in its entirety and enjoyed complete freedom of movement and access to private persons and others of interest.
4. While in Yangon, the Special Rapporteur met with the Secretary 1 of the State Peace and Development Council (SPDC); the Foreign Minister and his Deputy; the Home Minister; the Head of Department of the Office of Military Intelligence; the Chief of the Bureau of Special Investigation; the Directors-General of the Prisons and the Police Departments; the Chiefs of the Special Branch and the Criminal Investigation Departments; and members of the governmental Human Rights Committee. The Special Rapporteur visited Insein Central Prison, where he interviewed confidentially 16 prisoners, including recent political prisoners and those whom he had met during his previous visit in February 2002. He also had meetings with the General Secretary and members of the Central Executive Committee of the National League for Democracy (NLD), representatives of ethnic and other political parties, the United Nations country team, the diplomatic community, international civil society organizations, members of the international and local business community, as well as religious leaders and recently released political prisoners.
5. The Special Rapporteur travelled to Hpa-an (capital) and Kya-in-seikkyi township in Kayin (Karen) State from 23 to 25 October, where he met with local civilian and military authorities and visited the state court and district- and township-level police offices, including lock-ups. He also met with representatives of two ceasefire groups, and Buddhist and Christian religious leaders. On his way to Yangon, the Special Rapporteur stopped in Mawlawmyine,
capital of Mon State, where he met with the Commander of the South-Eastern Command responsible for Mon and Kayin States and visited the local NLD office. Finally, on 27 October, he also travelled to Bago Division to visit Thayarwaddy prison where he interviewed 11 prisoners.
6. The Special Rapporteur followed his mission to Myanmar with a four-day visit to Thailand (29 October-1 November), during which he had meetings with the Deputy Permanent Secretary of the Ministry for Foreign Affairs, United Nations officials, and representatives of the diplomatic community, the media and non-governmental organizations (NGOs). He also travelled to Chiang Mai to hear the preliminary results of research developed by his team in the context of his mission to gather directly, and in a systematic manner, first hand testimonies from victims of, and witnesses to, human rights violations, and other persons who may have direct knowledge of the circumstances or context of such violations in the Shan, Kayin (Karen), Kayah (Karenni) and Mon ethnic areas of Myanmar. The purpose of this research project was to provide a solid background based on first-hand empirical survey to enable the Special Rapporteur to build up his own knowledge and understanding of the situation in these areas.
7. On his way to and from Myanmar, the Special Rapporteur had consultations with the Special Envoy of the Secretary-General to Myanmar.
B. Other activities
8. After his mission, the Special Rapporteur travelled to New York to introduce his interim report and to present to the General Assembly, in his statement on 6 November 2002, his initial impressions and findings, which are elaborated further in the present report in light of information received during and after the mission.
9. While at United Nations Headquarters, the Special Rapporteur met with several representatives of the Myanmar authorities, other States, NGOs and private individuals who imparted their views and information on the situation of human rights in Myanmar.
10. The Special Rapporteur wrote four follow-up letters to Myanmar authorities (on 13, 19 and 28 November and 10 December) regarding his cooperation with them in the implementation of his mandate, including on the issues relating to the proposed investigation under his mandate of allegations of sexual violence against women in Shan State and on conditions of arrest, detention and release of detainees, including the recent instances of political arrests and imprisonment.
11. During the reporting period, the Special Rapporteur sent five urgent appeals (including two jointly with the Special Rapporteurs on torture and on freedom of opinion and expression) and two allegation letters jointly with the Special Rapporteurs on extrajudicial, summary or arbitrary executions, on the human rights of migrants, and on the right to food.
II. ENJOYMENT OF BASIC FREEDOMS AND HUMAN RIGHTS
A. Freedoms of association
12. A very important step by the SPDC was the release of Daw Aung San Suu Kyi, which, according to her, has been unconditional. Following her release on 6 May 2002, the General Secretary of the NLD and her party have enjoyed some freedom of movement, assembly and expression within their precincts and the framework of their party activities. She has been able to travel extensively in the country without restriction. She has started to reorganize the party, to meet her followers, to deliver public speeches, and to open new offices (so far, 66 NLD offices have been opened throughout the country). So far, none of her followers, be they party organizers, activists or sympathizers, has been subjected to intimidation or harassment, though surveillance continues unabated, but in a somewhat more courteous manner devoid of direct pressure. Military intelligence personnel systematically monitor the NLD and all other political activities. Such personnel continue to be conspicuously present in front of the NLD office, monitoring movements in and out, photographing visitors, and often visiting them to question them about their contacts and discussions. What these security agencies seem to want is to know what is going on in order to maintain complete control of the situation and avoid any activity that may “get out of hand”. They appear to be haunted by the spectre of social unrest.
13. While it is clear that the political space is being gradually reopened for the NLD to revive its activities, the extent to which it will be opened remains to be seen. The Special Rapporteur presumes that the regime that applies to the NLD is also valid for the eight other political parties which, in addition to the pro-Government National Unity Party, were not deregistered after the 1990 elections. The Special Rapporteur met representatives of several of these parties, none of which has resumed its legitimate activities, citing fear as the reason.
14. The Special Rapporteur also met representatives of parties that were deregistered and that refer to themselves as “national politicians” in order to be allowed to participate in what the SPDC calls “national politics”. This term seems to refer to political activities sanctioned by the SPDC, in contrast to “party politics” which contest its legitimacy. The Special Rapporteur also met with the United Nationalities Alliance, an informal umbrella organization founded in July 2002 by eight nationality parties that participated in the 1990 election.[1]
B. Freedom of expression, information and the press
15. Restrictions on the freedom of expression and information are still in place. The NLD has yet to receive a licence for a printing equipment to publish and disseminate party or political information, for which it applied in May 2002. For the time being, Daw Aung San Suu Kyi only holds a licence, renewable every six months, to operate the two computer printers to which she has access at the NLD central office. In Mawlawmyine (capital of Mon State), the Special Rapporteur visited the NLD branch whose chairman, along with his son, had been released earlier this year. Prior to their arrest, they had been operating a professional printing house that was closed under what appears to be a ridiculous pretext. The Special Rapporteur was informed that whereas the court had long ago ordered the reopening of his printing house, it was still sealed.
16. A free press has yet to become a social reality in Myanmar. Every publication in Myanmar is subjected to censorship through the Ministry of Home Affairs Printers and Publishers Registration Board. There was no reporting of the release of Aung San Suu Kyi except in The Myanmar Times, a private weekly newspaper with a circulation of around 250,000. The Special Rapporteur thinks that freedom of press in Myanmar might be a way of developing confidence on all sides. Access to information is also an essential component of a successful development strategy. To reduce poverty it is essential to liberate access to information and improve its quality. A free and independent press is able to provide a way for citizens to be heard and help build national reconciliation, but it is crucial to remember that the media are in essence a business: their survival depends on the overall economic activity. One of the key questions for the SPDC is to determine the steps that could be taken to establish free and independent media.
C. Political prisoners
17. The SPDC appears to have accepted the figure established by the International Committee of the Red Cross (ICRC) of 1,448 “security detainees” (as of 21 October 2002) whose detention involves a political or security element, even if they were convicted for criminal offences. Apparent consensus within the SPDC regarding numbers and categories of such detainees provides a clearer basis for mutual understanding. The Special Rapporteur called for their release before the end of the year, or at the latest by his next mission. He was informed that this would be unlikely but that releases would continue. The Special Rapporteur also reiterated his call that those who are imprisoned for their real or imputed peaceful opinions or activities (who appear to constitute the vast majority) should be released, immediately and unconditionally. Concerning those against whom there is credible evidence of involvement in violent acts, their release could be considered through an amnesty in the context of national reconciliation.
18. On 21 November 2002 the first group of 115 prisoners, including members of the NLD and other “security” detainees, was freed; this was welcomed by the Special Rapporteur in his press statement. In his view, it demonstrated the continuing good will of the SPDC to ease the political atmosphere and marked the largest single group release of prisoners since the beginning of the process of confidence building between the SPDC and the NLD in October 2000. Should all 115 prisoners be released, this would bring the total number of releases to some 950 in the past two years, comprising about 550 political detainees and 401 pregnant women or mothers with young children.
19. The release of all political prisoners is one of the criterion by which the seriousness of the process of political transition and national reconciliation will be measured. At the current rate of an average of 27 releases per month, it will take about four years to release the remaining prisoners. The Special Rapporteur is aware of one interpretation according to which the slow pace of releases reflects the fact that political prisoners are hostages of political dialogue and their release is being used as a bargaining chip to delay the process of national reconciliation. This may well be. But in spite of the continuing contacts between the SPDC and the NLD, no structured substantive political dialogue has started yet. So what purpose does their detention serve? Such interpretations, if wrong, can only be disproved by convincing action - by further mass releases in the near future, contributing to the process of credible change in the political and human rights climate in the country which is essential for national reconciliation to take place.
20. These releases should also be unconditional. At present, political prisoners are released conditionally under section 401 (1) of the Criminal Procedure Code providing for the suspension of their sentence to the extent that they agree not to engage in activities construed as threatening “public order”. Several prisoners whom the Special Rapporteur met have declined to be released under these conditions. He was also informed that prior to their release, several NLD members were advised by military intelligence personnel that they could resume their party activities if they wished but that they were obliged to report any contact by or knowledge of activities of “underground”, that is illegal, opposition movements; should they fail to do so, they would have to serve their remaining term in addition to a new sentence. This practice is contrary to human rights standards and undermines the spirit of political détente that the SPDC is seeking to promote.
D. Conditions in prisons
21. As during previous missions, all the prisoners interviewed by the Special Rapporteur (see annex) confirmed that their general detention conditions had improved in recent years. This reflects the positive commitment of the authorities and the constructive cooperation with the ICRC since May 1999. The Special Rapporteur was pleased to learn from prisoners themselves that there had been no retaliation against persons interviewed during his previous missions, in accordance with the assurances received from the SPDC. He is only concerned that some of those interviewed persons were questioned by military intelligence personnel afterwards about the reason and content of his discussion with them. This practice may be perceived as an attempt to intimidate them and discourage some of them, or others, from further cooperation with him.
22. The Special Rapporteur also welcomes the fact that physical ill-treatment of political prisoners, such as beatings, had stopped where it previously occurred, and that elderly prisoners, such as U Win Tin and Dr. Salai Than Tun, have received regular medical attention and daily doctor’s visits. The Special Rapporteur took note that the Prison Department is seriously considering giving political prisoners access to writing and reading materials other than religious books and to facilitate access to educational materials for those who wish to pursue their studies. Obviously, their release would resolve these problems.
23. Several areas where further attention would be required include the quality of food, the reported beating of common prisoners and the access to qualified medical attention and treatment, especially in cases of emergency. Since July 2002, four political prisoners have died in detention (Mai Aik Pan, U Aung May Thu, U Sai Pa and U Maung Ko). These deaths were allegedly due to delays in getting clearance from authorities regarding access to urgent medical assistance. This brings to 74 the total number of deaths in detention of political prisoners since 1988. The Special Rapporteur understands that in the case of common prisoners, the situation is worse and that their death rate in prison and labour camps is abnormally high. This is an issue which he intends to follow up on during his next mission. He was also informed that, on several occasions, very sick common criminals had been temporarily taken out of prison just prior to his visit or a visit by the ICRC, so that their poor state of health would not be noticed. This reportedly took place in Myitkyina, Insein and Thayarwaddy prisons.
24. In several areas, political prisoners continue to be worse off than criminal offenders. For instance, they appear to be often deliberately sent to prisons far from their homes. This makes family visits very difficult or impossible and adversely affects their conditions of detention since prisoners largely depend on family support to sustain themselves in prison. Also, several of them continue to be held in solitary confinement which undoubtedly has adverse implications for their health. Further, they are not permitted privacy during family visits and cannot benefit from sentence remissions under existing law. Another source of serious concern is the continued practice of indefinite administrative detention of political prisoners beyond the term of their sentence under section 10 (a) of the 1975 State Protection Act. To the Special Rapporteur’s knowledge, as of 20 November 2002, there were at least 26 persons in this situation. All these situations are in contravention of international human rights norms. They would be solved once and for all if all these persons were to be released. This would benefit all other prisoners and prison authorities who would then have to concentrate on criminal offenders only.
E. Recent political arrests
25. The limited number of political arrests between October 2000 and June 2002 had given the impression that the repression of peaceful political activities had somewhat softened. This seems to have been due to a large extent to the climate of political expectancy generated by the process initiated two years ago. It was also due to the efficiency of the system of surveillance, the related widespread fear this instilled in people and their caution in exercising their limited rights to undertake political activities. The 6 May 2002 statement by the SPDC was interpreted by many Myanmar citizens as a signal that a page effectively had been turned and that the space for political activities was being reopened. This has led to the formation among active students and other educated individuals, of literary, religious, welfare and other groups and associations aimed at participating in a peaceful manner in the process of transition. These groups also began to publish and disseminate leaflets, bulletins and journals. These activities resulted in a series of arrests that have taken place since July and involved about 50 students, teachers, lawyers and other peaceful activists.
26. The Special Rapporteur has already expressed his surprise and concern to the SPDC in relation to the renewed political arrests and detentions which followed the pattern which was described in his report to the General Assembly (A/57/290), including arbitrary arrest, prolonged incommunicado detention and interrogation by military intelligence personnel, extraction of confessions of guilt or information, very often under duress, followed by summary trials, sentencing and imprisonment. Several of those arrested since July were subjected to diverse
forms of ill-treatment at the time of arrest or during interrogation. These practices constitute torture because they contain three key definitional elements: severe suffering, committed with the intent to extract information or confession or to punish, by a State agent acting in official capacity.
27. All but five were released after several days in police custody during which military or police intelligence officers questioned them about their activities, contacts and suspected connections. They were discouraged from pursuing these activities under the threat of imprisonment and made to sign pledges that they would not engage in activities deemed to be detrimental to public order and stability. Among the five, who were charged under section 5 (j) of the Emergency Provisions Act, are students Thet Naung Soe and Khin Maung Win. They were arrested last August for having distributed leaflets calling for the release of fellow students detained earlier and expressing support for the process of political transition and national reconciliation. Thet Naung Soe also staged an individual and silent demonstration. They and others undertook these peaceful activities after they listened to the 6 May statement by the SPDC. The Special Rapporteur has repeatedly raised their and other cases with the SPDC since his urgent appeal of 2 September and he interviewed them in prison on 20 October. He was shocked to learn that they had been sentenced to 14 and 7 years of imprisonment, respectively.
28. These arrests violate the peaceful exercise of fundamental human rights, which is indispensable to a successful transition. Transition requires domestic and international support, which in turn requires confidence. These arrests undermine confidence in the process that has been embarked upon. They cast serious doubts about the SPDC’s intention to “turn a new page”.
E. Freedom of religion
29. The Special Rapporteur has the impression that against the background of a general respect the practice of religion, there are local or regional variations. Respect for religious freedom appears to be better in places closer to central authorities than in remote or counter-insurgency areas. He has no clear answer why. Perhaps it is because of insufficient control by the central Government of local authorities or neglect with regard to the respect due certain faiths. Chronic problems involving Muslims, especially but not only in Rakhine State, continue to be reported. The Special Rapporteur is aware of the involvement of officials of the Office of the United Nations High Commissioner for Refugees (UNHCR) in this respect and plans to look at the issue more closely during his next mission.
30. During his mission the Special Rapporteur met with ministers and community leaders of several Christian churches as well as with Buddhist monks. He heard that to build a church or a community centre Christians need to get permission from the authorities. It appears that even if they are authorized to do so by central authorities, they must still go through all the administrative levels down to township where difficulties are frequent; in case of refusal they have to follow their complaint all the way up again through the same levels.
G. Child soldiers
31. After the debate on children and armed conflict on 20 November 2001, the United Nations Security Council unanimously adopted resolution 1379 (2001) which contains clear provisions concerning the inclusion of child protection in the work of treaty bodies and United Nations mechanisms. The Special Rapporteur thinks that it is necessary that his mandate should begin to examine the question of the recruitment and use of children in Myanmar both by the army and by armed groups. Among non-State armed groups that have been reported to recruit child soldiers are the United Wa State Army, the Shan State Army-South, the Karen National Liberation Army, the Karenni Army, the Democratic Karen Buddhist Army, the Kachin Independence Army, and the Mon National Liberation Army.
32. In the Special Rapporteur’s view the voluntary and/or forced conscription of children into the armed forces and the various ways in which they are used by these forces is an issue in Myanmar. He has continued to receive reports in this regard, among them the Child Soldiers 1379 report by the Coalition to Stop the Use of Child Soldiers (November 2002) and “My Gun Was As Tall As Me” by Human Rights Watch (October 2002), which were published after his mission. The attitude of the Special Rapporteur vis-à-vis these reports is the same as that concerning similar reports: both contain allegations of forced conscription of children as soldiers which he wants to investigate, among other alleged violations.
33. The Special Rapporteur was able to collect some information during the mission reflecting the existence of child soldiers in Myanmar, though he has not yet been able to establish the exact dimensions of the problem. He considers that many recommendations proposed in the above reports constitute useful leads for the serious examination of this issue by all parties to the conflict. Some of the suggestions can help a calm and objective examination of the ways to better implement the rights of children in that difficult area, for instance, to develop reliable systems to verify the age of individuals recruited and to put in place comprehensive birth registration. In this regard, the Special Rapporteur will be more than happy to collaborate with Myanmar authorities in seeking international cooperation with relevant agencies, such as UNICEF, and NGOs. A move by the SPDC in this direction would be a very positive development.
34. He believes it is important that the SPDC recognize the issue and start working towards addressing it, including through acceding to the relevant Optional Protocol to the Convention on the Rights of the Child and the Worst Forms of Child Labour Convention 1999 of the International Labour Organization, which defines the forced or compulsory recruitment of children as one of these. At the same time, the SPDC could engage in constructive discussion with the Committee on the Rights of the Child in the context of the examination of its second periodic report on the implementation of the Convention and consider any other measures as may be necessary.
III. INDEPENDENT INVESTIGATION OF ALLEGATIONS OF HUMAN RIGHTS VIOLATIONS IN ETHNIC AREAS
35. One of the major consequences of insurgency on the border between Myanmar and Thailand since the 1980s has been the generation of internally displaced persons (IDPs). Insurgency involves the entire population. This kind of warfare affects civilians as the distinction between combatants and non-combatants is very difficult to make. What is dramatic is the fact that the civilian population in the areas of ethnic insurgency in Myanmar, in spite of
their individual choices, are inevitably drawn in to the conflict. The army tends to see the refugees/IDPs as enemies and the refugee camps as rear-guard from which to attack the country. In consequence, every investigation of human rights violations in the war zones is considered as a war of wards against the SPDC.
36. The Special Rapporteur thinks that it is time to overcome this impasse whereby any consideration of well-founded allegations of human rights violations automatically is seen with suspicion as an accusation against the SPDC. He thinks that the peaceful exposure of violations will be a contribution to national reconciliation and peace that may open the path to accountability, a basic requirement for building the rule of law.
37. Serious human rights violations have undoubtedly occurred and continue to occur in the areas where armed groups operate. These violations have been primarily attributed to the army. There is also evidence that groups operating from neighbouring countries and with outside support show little regard for the life and security of civilians. Their continued armed activities in these areas provoked counter-insurgency measures by the army, which has had devastating consequences for the local population.
38. The question of independent investigation of allegations of human rights violations in the ethnic counter-insurgency areas was one of the specific issues addressed by the Special Rapporteur during the reporting period. Special attention was paid to the issue of investigating allegations that Shan women had been systematically raped by Myanmar military personnel in the report “Licence to Rape”, published by the Shan Human Rights Foundation (SHRF) and the Shan Women’s Action Network (SWAN) in May 2002. In this regard, during his last mission, he received detailed briefings on three investigations into the recent allegations of rape in Shan State conducted by the Myanmar authorities for a period of three months. He was also invited to travel to Shan State, which he opted to decline as a short visit would have been inappropriate for conducting a serious assessment of the alleged violations there. On his way back from Myanmar, the Special Rapporteur met with the authors and researchers of the above report and his research team interviewed a number of victims of and witnesses to incidents of rape in Thailand.
39. In preparing for his mission, the Special Rapporteur had followed the matter closely. He first noted that the SPDC rejected the allegations as fabrications without looking into them at press conferences held on 12 and 30 July; a press briefing on 23 August was an example of “double thinking” in the sense that the Deputy Foreign Minister concluded that “preliminary” findings had shown that the allegations had been fabricated by the authors of the report in connivance with the Shan United Revolutionary Army (SURA), at the same time pledging to “leave no stone unturned” in the investigation; and lastly, the two members of the National Working Group on Women’s Affairs who visited OHCHR on 11 October stated that they had not seen the original Shan rape report.
40. The details of the three investigations given to the Special Rapporteur during his mission were as follows:
(a) The first investigation report (by a “special team of security personnel”) concluded (after meeting 94 officers and soldiers from 24 battalions, 27 members of the judiciary, police and hospital staff, 6 NGOs and 195 villagers) that “preliminary investigations and findings show that almost all of the allegations were highly exaggerated and their main purpose was to hurt the prestige of Myanmar and the Myanmar Armed Forces”;
(b) The second report (by the Chairman of the “Myanmar National Women Committee to Combat Trafficking” (the Deputy Minister for Home Affairs) under “the guidance of Gen. Khin Nyunt”) concluded that “there is no proof” to support the “allegation of the SURA narco-terrorists” after a five-day investigation mission in “43 localities”;
(c) The third report (by a team of the Myanmar National Working Committee on Women’s Affairs led by Dr. Daw Khin Win Shwe (Gen. Khin Nyunt’s wife)) concluded after a five-day visit during which it met 650 government officials in two districts and 250-300 village elders in two village tracts, that “it is clear that the accusations are unfounded”. There were “no rape cases committed by military personnel between 1996 and 1999 and in 2002”, but there were “three cases in 2000 and 2001” the perpetrators of which were sentenced to 5 to 10 years.
41. The Special Rapporteur also received briefings regarding two specific allegations, namely, the execution of five villagers in Kalein Padaw village, Thanbyuzayat township, Mon State and of 12 villagers in Htee Law Bler village, Kya-in-seikkyi township, Kayin State, conducted by the SPDC from July to October 2002.
42. While recognizing these important efforts, the Special Rapporteur explained to the SPDC that, having been undertaken by military and other SPDC personnel, the investigations lacked the independence required to be convincing and credible. The actual investigations were apparently conducted by personnel with no special skills or experience in investigating human rights allegations, and who were probably unaware of the minimum standards required for a credible inquiry. From the reports, one can assume that they were conducted in such manner that very few people would probably dare to testify out of fear of reprisals against them or their families (prearranged, large, collective and public meetings with local officials, village elders and villagers, organized by security/military personnel with military escorts; village elders were allegedly requested to gather villagers or risk being fined; villagers were asked to sign a document denying the allegations of rape). To the Special Rapporteur’s knowledge, very few efforts were made to interview individual villagers in a manner that would ensure the confidentiality of the interview and the protection of the witnesses afterwards. It is not clear - except in one case - whether effective interpretation was provided to ensure proper communication. Language problems, including translation of names of places and individuals (both victims and soldiers), may have been a complicating factor. The implied methodology and the factual evidence described do not support the conclusions of the investigations.
43. Having explained that, the Special Rapporteur proposed that the SPDC explore several options to establish a credible mechanism for investigating these and numerous other allegations of violations in ethnic minority areas and underlined the importance of making an early commitment to that effect. These options are the following, in order of preference:
(a) An independent assessment team under his mandate, the precise terms of reference of which would need to be thoroughly discussed and agreed upon. This team would look into the recent allegations of human rights violations against Shan women. It could also look into the recruitment and use of children as soldiers as well as other allegations of human rights in ethnic minority areas;
(b) An international commission of inquiry, which would require a new mandate from the United Nations;
(c) A balanced national inquiry mechanism which would involve the SPDC and other interested parties in Myanmar. The NLD has expressed its willingness to participate if such a body were to be established. The United Nations could provide technical assistance to help set up such a body if required.
44. As a matter of priority, besides the need for an independent assessment of the allegations of human rights violations in ethnic minority areas, the Special Rapporteur proposed that the SPDC consider allowing an adequate International Committee of the Red Cross presence in all conflict areas of the country. The ICRC could then assess the situation on an ongoing basis, report confidentially to the authorities and work out with them appropriate measures to ensure the security and protection of the civilian population, wherever needed. Access by the ICRC to detention facilities has helped to improve conditions in prisons and the treatment of prisoners. The ICRC presence in conflict areas would help address issues of the kind raised in the recent and other allegations of serious human rights violations and it could also start disseminating international humanitarian law to combatants. The ICRC has both the mandate and adequate capacity in Myanmar (40 international and 220 local staff) to do this.
45. The Special Rapporteur took note of a communiqué issued on 4 November by the SPDC giving an initial positive reaction to these proposals. He welcomed the SPDC’s invitation to the ICRC “to visit with an adequate presence the Shan State Region”. He hopes that the initial contacts made by the ICRC with local authorities and people in these areas following this invitation will pave the way for developing cooperation and implementing its humanitarian mandate there. He also wrote two letters to Myanmar authorities seeking clarification about the terms of invitation to the United Nations in the same communiqué.
46. As he stated in his presentation at the General Assembly last November, and based on his own research into the situation of human rights in ethnic areas, there appear to be serious problems with the way the army treats civilians in ethnic counter-insurgency areas. This problem will not disappear by denying its existence and should be recognized and addressed properly. Allegations will be made as violations continue to occur. The most reasonable way to address this issue would be to investigate these allegations in a credible manner, to establish the facts, to take action against the perpetrators, to establish procedures to prevent their recurrence, to ensure control over army units and to compensate the victims. The Special Rapporteur requests that the SPDC cooperate with him in conducting an independent assessment under his mandate. He reiterates his readiness to discuss the terms of reference concerning independence, timing, composition of the team, transparency of procedures, investigating methods, and protection of witnesses during the investigation. It is essential that there be a clear acceptance by
the SPDC of a modus operandi based on international standards and including sexual violence against Shan women in the terms of reference, and possibly including a review of the findings by the Special Rapporteur’s team in Thailand and of allegations of other human rights violations in ethnic minority areas. This exercise could be launched during his next mission to Myanmar in the first months of 2003 and the United Nations, through OHCHR, would provide technical assistance to help set up the Special Rapporteur’s investigation team.
IV. OTHER ISSUES
A. Challenges of transition and development
47. It is essential to understand the pyramid-shaped structure of the military hierarchy in Myanmar and of the society, in order to understand how the military leadership sees the situation; only then can the international community contribute to progress on issues such as the move towards long-awaited democracy and development of the nation. The SPDC members believe that they have achieved much since 1989: ceasefires with many insurgent groups, infrastructure development, opening up to a market economy and foreign investment, diplomatic initiatives (e.g. membership of the Association of South-East Asian Nations), positive developments in the area of human rights mentioned by the Special Rapporteur in his previous reports (see E/CN.4/2002/45). According to third-party views, it is true that there has been more development, peace and stability in more areas than before and there is more freedom (in relative terms).
48. The Special Rapporteur believes that the international community, especially those Member States that have historic ties with Myanmar, must abandon every illusion of quick solutions for extremely complex structural and cultural problems that for the last 50 years have blocked political and economic progress in Myanmar; nothing can be imposed. The Special Rapporteur thinks that the International Crisis Group in its Asia Briefing (27 September 2002) has phrased this requirement, with which he entirely agrees, very successfully:
“… the aim should be to unlock frozen patterns of behaviour and thinking inside the country by encouraging new actors, policies and ideas - and paths to democracy, military professionalism, a strong market economy and broader social development that can actually reach this destination. There is a need to abandon the kind of thinking that sees any progress achieved under the military government as an obstacle to democratization and therefore something to be neither supported nor encouraged or even acknowledged. The reality, whether Western policymakers feel comfortable with it or not, is that the military leadership is more likely to compromise in an atmosphere of progress than it is under siege. It is, after all, five decades of self-imposed isolation that has created the mindset against which the domestic opposition and international supporters are now struggling”.
B. Humanitarian aid
49. In response to the precarious humanitarian conditions in Myanmar, the United Nations country team is preparing a report entitled “A humanitarian review and framework for action in Myanmar” (working title) to find ways to better meet the needs of the people. The document will enable the United Nations country team to speak with one voice on its analysis of the country situation and to put forth a framework for a response. The framework is expected to function as a blueprint for direct actions with maximum impact. The objectives of the strategic framework are: to raise awareness of the current situation; to influence policies; to mobilize resources; and to strengthen partnerships with stakeholders. It is expected that this document would provide the most up-to-date analysis of the basic needs of the population at this stage of political transition and urge the international community to consider being actively involved, which could lead to positive political developments. A final report is expected to be issued in the first quarter of 2003.
50. On the issue of HIV/AIDS, Myanmar has been cooperating with UNAIDS. In March 2002, a joint workshop was held to assess the HIV/AIDS situation in the country. The Government has informed the Special Rapporteur that according to UNAIDS there was a total of 177,279 people living with HIV/AIDS at the end of 2001 in Myanmar, most of whom were in the higher-risk groups and at the border areas.
V. CONCLUDING OBSERVATIONS
51. The Special Rapporteur is convinced that to help enhance the dialogue between all political actors in Myanmar with a view to speeding up progress towards peace, it is necessary more than ever to build a rational discourse on policy and strategy alternatives that are effectively possible. It is perhaps necessary to bear in mind that to create international policies conducive to change in a world where human rights after 11 September 2001 tend to be given a back seat, it must be recognized that the willingness and the capacity of the international community are very limited indeed.
52. It is high time to replace the high expectations of the ideal game scenario and the writing of constitutional models with a down-to-earth discussion of less prescriptive requirements which will be able to stimulate a real process of change. It is crucial to follow, understand and strengthen the internal forces within Myanmar, as in the end only they will be able to bring about possibilities for change. To this end, instead of continuing to complain that little has changed in the past 14 years in terms of power and influence inside the SPDC, the army and society, it is time to take stock of, acknowledge and evaluate the ongoing effects of incremental change which have taken place. On all sides it is possible to see movement in terms of contacts and exchange of information between the SPDC and the NLD during the last two years. But it should still be insisted that a road map for substantive dialogue and setting out objectives for both sides is essential for progress towards democratic transition
53. The international community must have its eyes wide open to see the nuclei of change. It should continue its dialogue with all sides - the SPDC, the NLD, other parties and ceasefire groups. Its influence will be greatly determined by domestic factors and it must make every effort to establish an “enabling environment”. Member States and international organizations must follow the lead of domestic actors concerning the political transition. At the time that the NLD General Secretary and her colleagues are beginning
to operate, it is of fundamental importance to be pragmatic and to work within the compromises and negotiations defined by the NLD with other political parties, ethnic groups and civil groups. Even if at first sight these arrangements will not yet be able to fulfil the basic requirements of consolidated democracies, this has also happened in the democratization process of many new democracies in the world. Let us not refuse to acknowledge progress because the changes do not fulfil a maximalist scenario.
54. On the other hand, it is time to leave behind the illusion that after the political transition the apparatus and agents of the State will magically disappear. As in any democratic transition in the twentieth century, even after authoritarian regimes, many of the bureaucrats running the country such as judges, public prosecutors and army officials will stay in place. There were many political dialogues in other South-East Asian countries that were completed before they faced the demands for participatory democracy, namely elections, labour standards and human rights. Accordingly, the Special Rapporteur is of the view that the sooner the international community is ready to assist, the better and smoother the change will be in Myanmar. He therefore continues to urge the international community to engage with Myanmar even before the SPDC introduces democratic reforms. He believes that the peoples of the country should not be held hostage to political transition. Every political transition in the world is a process, sometimes a tortuous and slow one, and it would be unrealistic and naive to expect an instant regime change in Myanmar.
55. The policy option now should be engagement, not isolation. By principled engagement - as he has indicated many times before - the Special Rapporteur understands, among other elements, a dialogue, support for change, empowerment of community, strengthening of autonomous civil society elements, and the enlargement of the presence and the capacity of United Nations agencies. By insisting on the need for greater engagement of the international community, he is not urging it to step up financial support to the SPDC or to consider the suspension of economic or political sanctions; it is not part of his mandate to advise Member States on this matter.
56. With regard to allegations of the rape of women in Shan State and of other human rights violations against civilians living in ethnic minority areas affected by armed conflict, if the SPDC sincerely wants to promote the cause of peace, development and justice there, it must look seriously into these allegations. The Special Rapporteur believes it is urgent that the SPDC establish efficient mechanisms for holding army personnel accountable for the alleged human rights violations with a view to ensuring the protection of the civilian population in ethnic areas. It is time to finish the war of words. Denial is the worst path for national reconciliation: allegations must be investigated, prosecuted and judged and those responsible for the violations convicted and sentenced. The Special Rapporteur believes that the SPDC could turn this opportunity into momentum for a peaceful solution and dialogue with ethnic minorities and bring them into the national reconciliation dialogue, thus ensuring national ownership of the process and demonstrating that Myanmar is serious about finding out the truth, protecting its people against abuse of power, and bringing the perpetrators to justice. To support this initiative, it is important
that the United Nations and the international community be consistent in dealing with human rights violations: there cannot be one set of standards or requirements for the SPDC and another for armed groups.
57. The Special Rapporteur acknowledges as an important development the opening of an ILO Office in Yangon and the appointment in October 2002 of the ILO Liaison Officer to cover all activities relevant to ensuring the prompt and effective elimination of forced labour in the country. It would now be a very positive move for the SPDC to confirm its commitment to end forced labour by strengthening its cooperation with the ILO and allowing it free access throughout the country.
58. It is past time for the apparent stalemate that has so far characterized the contacts between the SPDC and the NLD to end. The Special Rapporteur is convinced that greater progress in the promotion and protection of human rights will be conducive to the creation of an atmosphere that will break the impasse. As he has said in his previous reports, there can be no credible political transition in Myanmar without starting to implement concrete measures. Some are connected to the exercise of civil and political rights such as the immediate and unconditional release of all political prisoners, including through a general amnesty. This also includes the lifting of restrictions on the ability of political parties and groups having concluded ceasefires with the Government to conduct peaceful political activities openly without any risk of retaliation or punishment. The Special Rapporteur thinks that this measure is of significant importance because, in the absence of substantive political settlements and economic growth, the ceasefires have not in themselves been able to change the situation on the ground for most of the victims of previous conflicts. There is a pressing need to embark on a process of structured dialogue on substantive policy issues with the involvement of other actors (representatives of ethnic nationalities and other political parties) in the national reconciliation dialogue. This process must be accompanied by the launching of reform of the State apparatus, which could contribute progressively towards making the rule of law prevail in the “un-rule of law” which presently affects most of the population in Myanmar. With the cooperation of the international community and multilateral organizations, it is necessary to continue to take bolder steps to reform the system of administration of justice and to build mechanisms of public accountability for abuses committed by State officials. Of course, the transition process will not be complete without free elections. With respect to economic and social rights, it is imperative to establish some form of “humanitarian aid” vehicle involving the United Nations and national actors, the SPDC and the NLD, as well as other relevant actors as appropriate.
Annex
List of persons interviewed by the Special Rapporteur during his visits to Insein and Thayarwaddy prisons
Interviews with the following persons were conducted confidentially (i.e. without the presence of a prison guard or official):
Detainees in Insein prison (interviewed on 20 October 2002)
Recent cases [since February 2002 visit]
1. Aung Thein
2. Kyaw Naing Oo
3. Thet Naung Soe
4. Khin Maung Win
5. Ko Hla Htut Soe
6. Maung Maung Aye aka Ko Baydar
7. U Aye Zaw Win
8. Aye Ne Win
9. Kyaw Ne Win
10. Zwe Ne Win
Interviewed during February 2002 visit
11. Dr. Salai Tun Than
12. U Win Tin
13. Daw May Win Myint
Other political prisoners
14. U Naing Naing
15. Ma Khin Khin Leh
16. U Aung Myint
Detainees in Thayarwaddy prison (interviewed on 27 October 2002)
1. Iqbal
2. Zaw Thet Tun
3. Kyaw San (aka Cho Sein)
4. Jimmy (Kyaw Nain Min Yu)
5. Pyinnyar Zaw Ta (Myint Maung Maung)
6. Soe Moe Maung
7. Htay Kywe
8. Soe Moe Hlaing
9. Ma Nilar Thein
10. U Win Myint
11. Lay Mon Mon
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[1] Among them only the Shan Nationalities League for Democracy (SNLD) is among the 10 remaining legal parties. Others are deregistered parties, including the Arakan League for Democracy (ALD), the Chin National League for Democracy (CNLD), the Kachin State National Congress for Democracy (KSNCD), the Karen National Congress for Democracy (KNCD), the Kayah State All Nationalities League for Democracy (KNLD), the Mon National Democratic Front (MNDF), the Shan Nationalities League for Democracy (SNLD) and the Zomi National Congress (ZNC).