COLLECTED REPORTS TO THE COMMISSION ON HUMAN RIGHTS BY
THE SPECIAL RAPPORTEURS ON
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
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
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
David Arnott,
Last updated, August 2003
CONTENTS
E/CN.4/1993/37
(Professor Yokota's first
report to the Commission)
E/CN.4/1994/57
E/CN.4/1995/65
E/CN.4/1996/65
E/CN.4/1997/64
(Judge Lallah's first
report to the Commission)
E/CN.4/1998/70
E/CN.4/1999/35
E/CN.4/2000/38
(There was no written
report in 2001)
E/CN.4/2002/45
(Professor Pinheiro's
first report to the Commission)
E/CN.4/2003/41
********************************************************************************************************************************************************************************************************************************************************
Economic and Social
Council
E/CN.4/1993/37
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
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
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
4. At its substantive
session of 1992, the Economic and Social Council adopted decision 1992/235 of
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
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
B. Chronology of events
pertinent to the situation
9. In 1948 the Union of
Myanmar (then called
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
11. According to Article
201 of the Constitution, ethnic minorities had, in theory, the right to secede
from the
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
"
14. On
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
19. On
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
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
"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
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 (
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
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
33. The Special Rapporteur
visited
Meetings with the Minister
for Foreign Affairs
34. The Minister for
Foreign Affairs, U Ohn Gyaw received the Special Rapporteur on 8 and
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
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
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
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
40. He stated that some
subversive campaigns in
41. He said however, that
"it is a rubbish thing that people have left
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
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
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,
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
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
56. The Government
informed the Special Rapporteur that people from
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
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
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
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
67. In regard to this
situation, the Special Rapporteur transmitted on the last day of his visit,
"Excellency,
"I have the honour to
refer to your letter of
"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
"Dear Professor Yokota,
"I refer to your
letter dated
"As you are aware, we
in
"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
70. On
2. Summary or arbitrary
executions in the context of armed conflict
71. On
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
76. The Special Rapporteur
was shown a relocation order dated
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
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
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
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
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
(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
(b) U Maung Ko, (NLD CC
Member), 52 years old, was arrested on
(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
(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
-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
(h) Soe Htay, 19 years
old, was arrested on
(i) Mohamed Ilyas, over 65
years of age, a political leader from Arakan state. He was arrested on
(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
8. Death of HIV-positive
female prostitutes
95. According to
information made available, a group of women from
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
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
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
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
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
121. Nevertheless, the
Special Rapporteur was informed that within
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
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
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
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
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
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
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
137. Almost all of the
persons interviewed by the Special Rapporteur indicated their fear of returning
to
138. The Government stated
in its Press Release Number 87 of
IV. LEGAL FRAMEWORK
139. This chapter sets out
the sources of law applicable to the situation of human rights in
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,
(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
Article 3 common to the
Geneva Conventions of 1949 and Customary Law
158. On
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
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
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
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.
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
188. Before 1982, the laws
pertaining to citizenship in
(a) Every person, both of
whose parents belong or belonged to any of the indigenous races of
(b) every person born in
any of the territories included within the
(c) every person born in
the territories included within the
(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
(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
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
207. On
208. On
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
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
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
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.
222.
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.
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
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
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
231. According to
information received by the Special Rapporteur,
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
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
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
236. Between 7 and
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
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
241. On the basis of the
visit to
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
(d) The system of law,
both constitutionally and legislatively, in
(e)
(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
(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
(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
************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
Economic and Social
Council
Distr.
GENERAL
E/CN.4/1994/57
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
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
15. The Special Rapporteur undertook a visit to
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
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
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
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
4. The meetings with the Attorney-General and
the Chief Justice
21. On the morning of
5. The meeting with the Minister of Information
22. On the afternoon of
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
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,
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
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
7. Visits to hospitals
29. On the morning of
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
8. Visits to the
the
31. On the afternoon of
32. On the morning of
9. Visits to university campuses
33. On the morning of
34. On the afternoon of
10. Visit to
35. On 13 and
36. On the morning of
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
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
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
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
41. Following his visit to
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
"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
"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
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
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
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
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
52. A specific response of the Government of Myanmar to the allegation
of disappearances is found in the note verbale dated
"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
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
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
"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
56. In accordance with the agreement reached between
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
F. Labour rights
58. The Special Rapporteur has been informed that workers in
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
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
I. The movement toward reconciliation with
insurgents
63. The Special Rapporteur has been informed that Secretary One,
General Khin Nyunt, during his visit to
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
(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
(i) The Government of
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************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
UNITED NATIONS
Economic and Social
Council
Distr. GENERAL
E/CN.4/1995/65
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
C. Visits to camps in
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
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
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
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
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
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 "
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 "
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
9. On
10. On
11. Beginning in early
1992, a mass exodus of Myanmar Muslims from
12. On
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
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
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
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
19. The Special Rapporteur
visited
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
23. On
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
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 "
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
28. On the general subject
of human rights, Lieutenant General Khin Nyunt explained that
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
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
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
3. Meeting with the Deputy
Director of the Directorate of Defence Services Intelligence
37. On the afternoon of
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
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
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
46. The discussion with Attorney-General
U Tha Tun revolved around new legislation, such as reform of existing
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
6. Meetings with leaders
of political parties
48. On the morning of
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 includ