COLLECTED
REPORTS TO THE UN COMMISSION ON HUMAN RIGHTS
BY THE SPECIAL RAPPORTEURS ON THE
SITUATION OF HUMAN RIGHTS IN
PROFESSOR
YOZO YOKOTA (1992-1996)
JUDGE RAJSOOMER LALLAH (1996-2000)
PROFESSOR PAULO SERGIO PINHEIRO (2000-)
INTRODUCTION
Basic starting points for an assessment of human
rights conditions in Burma/Myanmar are the UN resolutions on the situation of
human rights in Myanmar and the body of reports submitted since 1992 to the UN
General Assembly and Commission on Human Rights by the UN Special Rapporteurs
on Myanmar.
Special Rapporteurs are independent experts
appointed by the Commission on Human Rights to examine and report on particular
human rights themes or on the situation of human rights in particular
countries. Country Special Rapporteurs are only appointed to examine the most
serious human rights situations. The Commission appointed Professor Yozo Yokota
as Special Rapporteur on the situation of human rights in Myanmar in 1992
following two years when Burma/Myanmar had been examined by the Commission
under its 1503 (confidential) procedure. He was succeeded in 1996 by Judge
Rajsoomer Lallah, who was followed in 2000 by Professor Paolo Sergio Pinheiro.
Not only are the reports of the Special
Rapporteur the most authoritative general reports on the human rights situation
in Burma/Myanmar, including analysis of the legal framework governing the
exercise of human rights in the country, but they also contain an abundance of
summaries of testimonies gathered by the Special Rapporteurs over 12 years as
well as the responses of the Government of Myanmar to specific allegations.
By reading the reports as a body it is thus
possible to see the patterns of violations over a number of years, to assess
the degree to which they are systematic, widespread and persistent over time, to
track particular themes from 1992 (e.g. killings, rape, torture, forced
relocation, forced labour) but also to inquire whether there has been any
development, positive or negative, since the United Nations human rights bodies
began their examination of the situation.
The present document and the parallel collection of reports to the General
Assembly are intended to facilitate searching of the reports as a body. Since
they are rather large documents, they are presented in Text. Text does not
permit tables, and although I have presented the information from the tables as
clearly as possible, some readers may wish to check the original (and
authoritative) versions -- go to http://www.burmalibrary.org
and search for the document number, e.g. A/48/578, and click on the link, or to
the website of the UN High Commissioner for Human Rights, http://www.unhchr.ch and search. Otherwise, go
to http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/Myanmar%20En?OpenDocument&Start=1&Count=15&Expand=2
for links to the individual reports or to the web-page of the Special
Rapporteur on
David Arnott
Geneva, July 2002
CONTENTS
E/CN.4/1993/37
17 February 1993
(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
6 February 1997
(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
27 December 2002
E/CN.4/2004/33
E/CN.4/2005/36
2
December 2004
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THE REPORTS
1993
UNITED NATIONS
Economic and Social Council
Distr. General
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
Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on
Human Rights, in accordance with Commission resolution 1992/58
CONTENTS
Paragraphs
Introduction 1- 6
I. Background 7-31
A. General 7-8
B. Chronology of events pertinent to the situation 9-31
II. Activities of the Special Rapporteur
32-68
III. Allegations 69-138
A. Right to life 69-96
B. Torture, cruel, inhuman or degrading punishment 97-114
C. Disappearances 115-116
D. Arbitrary and prolonged detention 117-119
E. Freedom of expression 120-127
F. Situation of Myanmar Muslims of Rakhine state 128-138
IV. Legal framework 139-199
A. International law 140-179
B. Myanmar law relevant to the question of human rights 180-198
V. The National Convention for drafting a new
Constitution and the transfer of power to a civilian government 199-217
VI. Conclusions 218-241
VII. Recommendations 242
Introduction
1. On 3 March 1992, at its forty-eighth
session, the Commission on Human Rights adopted resolution 1992/58, entitled
"Situation of human rights in Myanmar". In that resolution, the
Commission noted that, in accordance with the Charter, the United Nations
promotes and encourages respect for human rights and fundamental freedoms for
all, and that the Universal Declaration of Human Rights states that "the
will of the people shall be the basis of the authority of government". It
also noted with particular concern in that regard that the electoral process
initiated in Myanmar by the general elections of 27 May 1990 had not yet
reached its conclusion; that no apparent progress had been made in giving
effect to the political will of the people of Myanmar, as expressed in the
elections; and that the final results of the elections had not even been officially
released; also noted that many political leaders, in particular elected
representatives, remained deprived of their liberty and that Daw Aung San Suu
Kyi was still under house arrest; and noted with concern the seriousness of the
situation of human rights in Myanmar, the existence of important restrictions
on the exercise of fundamental freedoms and the imposition of oppressive
measures directed, in particular, at minority groups and the continuing exodus
of Myanmar refugees to neighbouring countries, including Myanmar Muslim
refugees to Bangladesh.
2. By paragraph 3 of resolution 1992/58, the
Commission on Human Rights decided to nominate a special rapporteur to
establish direct contacts with the Government and with the people of Myanmar
with a view to examining the situation of human rights in Myanmar and to report
to the General Assembly at its forty-seventh session and to the Commission on
Human Rights at its forty-ninth session.
3. After consultation with the Bureau, the
Chairman of the Commission appointed, on 10 June 1992, Dr. Yozo Yokota (Japan)
as Special Rapporteur on the situation of human rights in Myanmar, pending
approval of Commission resolution 1992/58 by the Economic and Social Council.
4. At its substantive session of 1992, the
Economic and Social Council adopted decision 1992/235 of 20 July 1992,
approving Commission resolution 1992/58.
5. The preliminary report of the Special
Rapporteur was submitted to the Secretary-General of the United Nations for
dissemination to all States Members of the United Nations at the forty-seventh
session of the General Assembly in November 1992 (A/47/651, annex).
6. This comprehensive report is submitted to
the Commission on Human Rights at its forty-ninth session for consideration by
the Commission.
I. BACKGROUND
A. General
7. The situation of human rights in Myanmar
was first considered by the Commission on Human Rights at its forty-sixth
session, in 1990, under the procedure established by Economic and Social
Council resolution 1503, after having been considered by the Sub-Commission on
the Prevention of Discrimination and Protection of Minorities at its fortieth
and forty-first sessions, in 1988 and 1989, respectively. In 1991, the
Commission continued its consideration of the situation in Myanmar under the
procedure established in resolution 1503.
8. As mentioned above, the Commission decided
at its forty-eighth session to appoint a special rapporteur to examine the
situation of human rights in Myanmar and to report to the next sessions of the
General Assembly and the Commission on Human Rights. The Commission also
charged the Special Rapporteur with the expressed tasks of following any
progress made towards the transfer of power to a civilian government and the
drafting of a new constitution, the lifting of restrictions on personal
freedoms and the restoration of human rights in Myanmar.
B. Chronology of events pertinent to the
situation
9. In 1948 the Union of Myanmar (then called
Burma) gained its independence from British colonial rule. From 1948 until
1962, the country was governed by a parliamentary democracy based on the
Constitution of 2 September 1947.
10. The Constitution was drafted by consensus
among the Barmar ("ethnic Burmans" who comprise approximately two
thirds of the population) and most of the ethnic minorities including the Shan,
Rakhine (Arakan), Kayin (Karen), Mon, Kachin, Chin, Karenni and Pa-o. It
provided for a federal system of government with separate executive,
legislative and judicial branches. The states, while belonging to the Union,
were considered autonomous.
11. According to Article 201 of the
Constitution, ethnic minorities had, in theory, the right to secede from the
Union, but, under Article 202, this right was not to be exercised until ten years
from the date of entry into force of the Constitution.
12. In March 1948, an armed insurgency
against the then Government of Burma was begun by the Communist Party of Burma.
From 1948 through 1961, various minority ethnic groups joined the armed insurgency.
13. In March 1962, General Ne Win took power
in a coup d'‚tat. He installed a one-party (Burma Socialist Programme Party)
military regime with military tribunals and courts and operated without a
constitution. He embarked upon a programme known as the "Burmese Way to
Socialism".
14. On 28 March 1964, the Law to Protect
National Unity was promulgated, banning all political parties except the Burma
Socialist Programme Party.
15. In 1974 a new Constitution was drafted.
However, one-party rule continued.
16. By 1988, widespread dissent and
demonstrations began in reaction to two factors, firstly, the suppression of
all civil and political rights since the 1962 overthrow of the constitutional
Government; and secondly, the economic failure caused by the Burmese Way to
Socialism.
17. The economy was in crisis. In September
1987, the major currency notes had been demonetized and approximately 70 per
cent of all currency in circulation had been rendered valueless. There were
also severe shortages of domestic goods and the country, once one of the
world's major rice producers and exporters, lost its capacity to maintain its
international market.
18. From March until June 1988, students and
workers demonstrated, and were attacked by the military. Hundreds of civilians
were arrested, many were severely injured or died from ill-treatment in
detention and many persons were summarily or arbitrarily executed. On 21 June
1988 the Government imposed a ban on all public gatherings.
19. On 23 July 1988, General Ne Win resigned
as party leader, promising economic reform and the holding of a referendum to
end one-party rule and institute a multi-party system.
20. Demonstrations continued and the army and
riot police continued the crackdown on demonstrators. It is reported that
between 8 August, when a nationwide strike was held, and 12 August
approximately 3,000 persons were killed. All educational institutions were
closed.
21. On 18 September 1988, the military took
power. The State Law and Order Restoration Council (SLORC) was set up under the
chairmanship of the Chief of Staff, Senior General Saw Maung.
22. The National Assembly (Pyithu Hluttaw),
the Council of State and other governmental bodies were dissolved. Senior
General Saw Maung became Prime Minister, Minister of Foreign Affairs and
Minister of Defence.
23. Free elections were promised by SLORC. In
response, three main opposition parties were established: the National League
for Democracy (NLD); the National Unity Party (NUP, reconstituted from the
Burmese Socialist Programme Party) and the League for Democracy (LDP).
24. On 23 September 1988, Senior General Saw
Maung, as Chairman of SLORC, made a statement to the effect that three
conditions for the holding of elections would have to be met:
"1. Maintenance of law and order.
"2. Providing smooth and secure
transportation.
"3. The State Law and Order Restoration
Council will strive for better conditions of food, clothing and shelter of the
people and render necessary assistance to the private sector and the cooperatives
to do so."
25. In 1988, Daw Aung San Suu Kyi, daughter
of U Aung San (the national hero of independence) and General Secretary of the
National League for Democracy, was banned from campaigning on the grounds that
she maintained unlawful association with insurgent organizations.
26. On 20 July 1989, Daw Aung San Suu Kyi was
detained by Government forces. Numerous others, including most of the important
opposition political leaders to SLORC, were also arbitrarily detained, and many
of them remain so to date.
27. In May 1990, general elections were held.
The opposition (NLD) was reliably reported to have won the elections
overwhelmingly.
28. SLORC set up an Election Commission to
scrutinize the results of the elections and all expense accounts of all elected
representatives (SLORC has stated it does not want to rush the Commission), the
winners of the elections will be announced and certificates to the winners will
be issued.
29. A Constitutional Convention to decide the
terms of the drafting of the constitution has been announced by SLORC with the
participation of all parties. According to SLORC order No. 11/92 of 24 April
1992 and citing SLORC order No. 1/90 of 27 July 1990 (contained in Government
of Myanmar Press Release No. 82, dated 26 June 1992) and according to SLORC
order No. 9/92 dated 28 May 1992, SLORC, through its Steering Committee, was
given responsibility for the preparation of the Coordinating Meeting for the
Convening of the National Convention. Leaders of lawfully existing political
parties were to attend in numbers designated by the Steering Committee. The
nomination list of those representatives were to be sent to the Steering
Committee 11 days prior to the meeting. The Steering Committee was given
responsibility for inviting those elected individual representatives
"standing lawfully" on the day the Order (28 May 1992) was issued.
The Steering Committee was deemed responsible for: determining the programmes
related to the holding of the meeting; the topics to be discussed; determining
the procedures; determining as necessary the daily and travel allowances of
representatives attending the meeting; submitting the report on the meeting to
SLORC within one month of the meeting; and carrying out all administrative
functions.
30. The National Convention was convened for
one-and-a-half days in January 1993 and was then postponed until 1 February
when it was reconvened.
31. Beginning in early 1992, a mass exodus of
Myanmar Muslims from Northern Rakhine state into Bangladesh was reported. At
least 250,000 such persons are reliably reported to have sought refuge for fear
of persecution. On 28 April 1992, the Governments of Myanmar and Bangladesh
signed an agreement for the safe, voluntary return of the refugees. The
repatriation programme was suspended and has now been resumed. At present many
refugees appear unwilling to return to Myanmar without adequate international
monitoring. According to sources, as of January 1993, approximately 17,000
refugees have returned to Myanmar; however the voluntary character of the
return has been questioned and is of great concern to the international
community.
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR
32. At the invitation of the Government of
Myanmar, conveyed by a letter of the Minister for Foreign Affairs dated 27
August 1992, and accepted by the Special Rapporteur on 17 September 1992, the
Special Rapporteur undertook a visit to that country from 7 to 14 December
1992. Prior to the visit, the Special Rapporteur had been in frequent contact
with the Permanent Representative of Myanmar to the United Nations at Geneva
and with the Minister for Foreign Affairs who cooperated fully and facilitated
the visit which was originally scheduled for October but was, however,
postponed until December for technical reasons.
33. The Special Rapporteur visited Myanmar
from 7 to 14 December 1992. During this visit he was received by the Secretary
I of SLORC, the Minister for Foreign Affairs, the Deputy Minister for Foreign
Affairs, the Chief Justice, the Attorney General, the Minister for Development
of Border Areas and National Races, the Information Committee and other
high-level authorities of the Government. He also met with the Myanmar Red
Cross Society. He visited some sites relevant to his mandate including Insein
Prison, Rakhine state, the Dagon, Shwe Pyi Thar and Hlaing Thaya New Townships.
Meetings with the Minister for Foreign
Affairs
34. The Minister for Foreign Affairs, U Ohn
Gyaw received the Special Rapporteur on 8 and 14 December 1992. During these meetings
he discussed a number of different issues relevant to the mandate of the
Special Rapporteur. He stressed that, in regard to the National Convention and
the drafting of the constitution, over eight different groups would be allowed
to participate, representing all segments of society. He said that only the
elected representatives were considered competent to draft the constitution,
but that they required a mandate to do so. The National Convention would
provide that mandate.
35. In regard to turning over the Government
to the elected representatives, the Foreign Minister said that from the
beginning, there had been a misconception. The mechanism for the transfer of
power requires a basis for the transfer. There must be a constitution to
determine who, for how long, under what circumstances. All of this had been
laid out in SLORC Order No. 1/90. He further stated that the idea that power
would be transferred within a certain period, so that the elected
representatives could draft their own constitution, had been misunderstood by
the international community. This was why Myanmar had "disassociated
itself" from Commission resolution 1992/58 on the situation of human
rights in Myanmar. The international community was interfering in the internal
concerns and sovereignty of Myanmar. In any case, Myanmar was a country with
many different ethnic groups and the Government must maintain the integrity of
the State.
36. The Convention would be a step towards
democracy and the Government wanted to be doubly sure and not make a mistake
and go back to the situation of 1988 (to the democracy movement
demonstrations). The Foreign Minister said that the United Nations or another
country may tell Myanmar to go ahead, but that they could not risk losing a
century by making a mistake. He stated that the constitutional process was not
held before the elections because of caution regarding the 1988 events. He
stated that there were some insurgents who would like to move in from the
outlying areas and the Government had a responsibility to maintain normal law
and order.
37. Mr. Ohn Gyaw stated that there would not
be any international observation of the process because "it is a matter of
internal affairs not for too many cooks".
38. In regard to the 1982 Citizenship Act, he
said that there were citizens, associate citizens and foreigners. The second
group is the offspring of those who were citizens of Myanmar and intermarried
with foreigners. For example, he cited that his son was a citizen, while he was
not. Under the new law, his son would be granted all the rights of citizens,
such as the ability to own land and benefit from all business rights which he
had not been allowed to enjoy. He said that 98 per cent of the people
benefitting from this new act were of Bengali descent and would thus be able to
hold land, but he was not sure associate citizens would be allowed to hold or
own land. He stated that persons who could not produce an identity card would
have a problem.
39. Concerning the utilization of the Office
of the United Nations High Commissioner for Refugees (UNHCR) to facilitate the
repatriation of Myanmar Muslims to Rakhine state, he said that Myanmar had not
asked for one penny from the international community or UNHCR for the
repatriations. The Government was paying for all of the aid. He further stated
that the idea that these persons' goods, lands, and houses had been taken away
is false. Myanmar is taking care of the problems and is able to cope with the
flows. Nor does Myanmar need the aid of the International Committee of the Red
Cross.
40. He stated that some subversive campaigns
in Bangladesh, kept persons from coming back. These insurgents are causing
trouble to the Bangladesh Government and they are trying to convince people not
to repatriate. There are some persons from the
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 Myanmar ratified the ILO
Convention concerning Freedom of Association and Protection of the Right to
Organise of 1948 (No. 87) to the effect that:
Article 2: Workers and employers, without
distinction whatsoever, shall have the right to establish and, subject only to
the rules of the organization concerned, to join organizations of their own
choosing without previous authorization.
Article 5: Workers and employers'
organizations shall have the right to establish and join federations and confederations
and any such organization, federation or confederation shall have the right to
affiliate with international organizations of workers and employers.
Article 8 (2): The law of the land shall not
be such as to impair, nor shall it be so applied as to impair, the guarantees
provided for in this Convention.
178. Prior to 1988, by Act No. 6 of 1964 and
Regulation No. 5 of 1976, workers in Myanmar were restricted to a unitary
workers' organization in contravention of articles 2, 5 and 6 of the ILO Convention
(see Government of Myanmar Communication to the ILO Committee of Experts,
Report No. 24 pp. 48-49). The Government representative reported to the
Committee that since 1988 when the SLORC took power, these regulations have not
been formally amended or repealed, but that the unitary trade union structure
had been automatically removed and the Act and Regulation had become
automatically defunct.
179. This, however, has not resulted in
freedom of assembly and freedom to organize trade unions as stipulated by the
Convention. No new legislation has been promulgated since 1988 to allow for
free workers' assembly and/or organization. SLORC Order 2/88 prohibiting the
assembly of five or more persons remains in effect and substantially limits any
possibility for freedom of assembly or the right to organize and carry on trade
or workers' unions. According to the Government, changes would not occur in
this legislation until after the drafting of the new Constitution which, it was
said, would contain the appropriate safeguards.
B. Myanmar law relevant to the question of
human rights
180. One of the fundamental legal principles
is that any law should be: accessible to those to whom it would be applied and
to those encharged with upholding the law and those protecting the rights of
persons accused of breaking the law; clear and unequivocal; and equitably
applied, i.e., applied without discrimination.
181. Non-governmental sources indicated to
the Special Rapporteur that even among professionals including those engaged in
the law and among persons who are to participate in the National Convention,
there is confusion as to what laws apply. One such law in question is the
"incorporation" of the 1908 Village Act on portering into the 1947
Constitution, which states that all laws passed prior to the drafting of the
Constitution remain extant if not specifically rescinded. The Constitution was
cited to the Special Rapporteur by Government sources as the authority for the
continuation of the portering law, despite the fact that the Constitution has
been abolished. Non-governmental sources indicated confusion as to whether
SLORC Order 1/90 regarding the "leading role" participation of
elected officials in the drafting of the Constitution applied. At the time the
Order was drafted, all potential elected participants were reportedly ordered
to acquiesce in writing to this Order upon threat of detention. The Special
Rapporteur was informed that ... persons were arrested for refusing to sign.
Government sources told the Special Rapporteur that Order 1/90 remains in
effect, yet the interpretation and application of the Order were stated by
Government officials in contradictory and confusing terms.
Myanmar Penal Code and Code of Criminal
Procedure
182. While judicial guarantees set out in the
Constitution, according to the Government, do not apply, the Special Rapporteur
was informed by Government authorities that those elaborated in the Code of
Criminal Procedure applied in all cases heard in civilian courts even when the
detention was carried out under a SLORC Order or emergency regulation.
183. Non-governmental sources indicated
however, that in the cases of concern to the Special Rapporteur where the
person had been detained for reasons having to do with other than common
criminality the judicial safeguards, elaborated below, of the Code of Criminal
Procedure are not applied.
184. The Myanmar Penal Code and Code of
Criminal Procedure guarantee all persons detained for the commission of a crime
for which punishment may be imprisonment for more than one year, transportation
or the death sentence, to be charged for the crime committed, to be informed of
the charges, to be granted a just and fair trial by a competent court and an
appeal to a court in which a fair and impartial judgement may be had. Only
cases for "minor" crimes for which punishment would not exceed one
year, may, in certain circumstances, be tried in a summary manner.
185. However, the Special Rapporteur received
copies of the relevant SLORC Orders and other emergency laws or provisions
still in effect which were the basis for detention in most of the cases of
violations reported to the Special Rapporteur.
186. SLORC Order 1/91 prohibits civil
servants from participating in politics and their dependants or persons under
their guardianship from participating directly or indirectly in activities
aimed at opposing the government; 2/88, prohibits the assembly of five or more
persons; and 3/90, relating to the right to assemble and campaign, forbids
criticism of authorities or the defence forces, insults to SLORC and solidarity
of the national races, which may be punishable by up to three years in prison
and a fine. Order No. 6/90 of October 1990, bans all unlawful Sangha (Buddhist
Monk) organizations except the nine sects of Sanghas and has made action
possible against political parties for the "misuse" of religion for
political purposes. In addition, the 1962 Printers' and Publishers' Law, as
amended by the SLORC in July 1989, remains in effect. Under this law,
"legal organizations that have registered and that wish to print and
publish documents, books and printed material, will have to register with the
Ministry of Home and Religious Affairs and apply for exemption in accordance
with the 1962 Printers' and Publishers' Law". All material is prohibited
that opposes the SLORC, the regional LORC at different levels, or the
Government, insults, slanders or attempts to divide the defence forces,
instigates actions that affect law and order and peace and tranquillity or
contradicts the orders that have been issued whenever necessary. The 1975 State
Protection Act, as amended in August 1991 by the SLORC, remains in effect. It
allows the State to detain without trial for up to five years any person
"who will do, is doing or has done, an act that endangers the peace of
most citizens or the security of the State, or the sovereignty of the
State". The 1950 Emergency Provisions Act remains and allows for the imprisonment
for up to seven years of any person who either "infringes upon the
integrity, health, conduct and respect of State military organizations and
government employees", "spreads false news about the Government"
or "disrupts the morality or the behaviour of a group of people".
187. In the majority of the cases reported to
the Special Rapporteur, the person was tried by a military tribunal in which
the safeguards stipulated by the Penal Code and Code of Criminal Procedure did
not apply. By SLORC Order No. 12/92, Martial Law Orders 1/89 of 17 July 1989
and 2/89 of 18 July 1989, investing certain military commanders within their
respective military regions with executive and judicial powers, were rescinded.
The Government informed the Special Rapporteur that none of the persons tried
and sentenced before the military tribunals were abolished would be retried by
civilian courts. The Government stated that the principle of res judicata
applied despite the fact that the trials were summary military trials, but that
any person detained and tried subsequent to the rescission of the military
tribunals would be tried by a civilian court with all the judicial guarantees
of the Code of Criminal Procedure.
Burma Citizenship Law
188. Before 1982, the laws pertaining to
citizenship in Myanmar were prescribed by Chapter II, articles 10 of the 1947
Constitution (Union Citizenship Act of 1948). Accordingly, Parliament reserved
the right to make such laws as it thought fit in respect of citizenship and
alienage and any such law could provide for the admission of new classes of
citizens or for the termination of the citizenship of any existing classes. The
basic law held that "(T)here shall be but one citizenship throughout the
Union ..." Citizenship was deemed to exist for:
(a) Every person, both of whose parents
belong or belonged to any of the indigenous races of Burma;
(b) every person born in any of the
territories included within the Union, at least one of whose grandparents
belong or belonged to any of the indigenous races of Burma;
(c) every person born in the territories
included within the Union, of parents both of whom are, or if they had been
alive at the commencement of the Constitution would have been, citizens of the
Union;
(d) every person who was born in any of the
territories which at the time of his birth was included within His Britannic
Majesty's dominions and who has resided in any of the territories included
within the Union for a period of not less than eight years in the 10 years
immediately preceding the date of the commencement of the Constitution or
immediately preceding 1 January 1942 and who intends to reside permanently
therein and who signifies his election of citizenship of the Union in the
manner and with the time prescribed by law, shall be a citizen of the Union.
189. The 1982 Burma Citizenship Law (Pyithu
Hluttaw Law No. 1982-7) supersedes the 1948 Constitution Nationality Laws. The
1982 law establishes that there are three classes of citizens: citizens,
associate citizens, naturalized citizens.
190. One high-level Government official told
the Special Rapporteur that the three groups were: citizens, associate citizens
and foreigners. Another high-level official told the Special Rapporteur that
under the 1948 law, a person born of one Burmese parent and one
"foreigner" was still a citizen but that under the 1982 law, this
person would become an "associate citizen". Those who had applied and
qualified for citizenship before 1982, would now become naturalized citizens.
191. Under the 1984 law, citizens by birth
are those who are nationals such as Kachin, Kayah, Karen, Chin, Burman, Mon,
Rakhine or Shan and ethnic groups as have settled in any of the territories
included within the State as their permanent home from a period anterior to
1185 B.E., 1823 A.D. The Council of State may decide whether or not an ethnic
group is national. Every national and every other person born of parents, both
of whom are nationals are citizens by birth.
192. The following persons are also citizens:
Persons born of parents both of whom are
citizens;
Persons born of parents one of whom is a
citizen and the other an associate citizen;
Persons born of parents one of whom is a
citizen and the other
a naturalized citizen;
Persons born of parents of the above
categories, one of these parents having a parent who was either an associate or
naturalized citizen.
193. According to the Citizenship Law,
applicants for citizenship under the Union Citizenship Act of 1948 conforming
to the stipulations and qualifications may be determined as associate citizens
by the Central Body. No other standard criteria for this determination is set
out.
194. Persons may become naturalized citizens
if they are persons who have entered and resided in the State anterior to 4
January 1948, and their offspring born within the State may, if they have not
yet applied under the Union Citizenship Act, apply for naturalized citizenship
to the Central Body furnishing conclusive evidence. The following categories of
persons may also apply for naturalization:
(a) Persons born of parents one of whom is a
citizen and the other a foreigner;
(b) Persons born of parents one of whom is an
associate citizen and the other a naturalized citizen;
(c) Persons born of parents one of whom is an
associate citizen and the other a foreigner;
(d) Persons born of parents both of whom are
naturalized citizens;
(e) Persons born of parents one of whom is a
naturalized citizen and the other a foreigner.
195. The determination is made by the Central
Body. Among the qualifications necessary to become a naturalized citizen is the
ability "to speak one of the national languages well". The
"national races" and thus the "national languages" are
determined by the Central Body. There are registration requirements for the
application process to each category of citizenship which require travel out of
the villages and perhaps to another State.
196. According to articles 30 (c) and 53 (c),
associate and naturalized citizens shall be entitled to enjoy the rights under
the laws of the State, with the exception of the rights stipulated from time to
time by the Council of State.
197. One Government source informed the
Special Rapporteur that associate citizens had all the rights of a citizen by
birth except possibly the right to hold land. Foreigners have less business
rights and are not allowed to own land. It was not made clear to the Special
Rapporteur if this category referred to "naturalized citizens". Other
Government sources also told the Special Rapporteur that associate citizens
could not own land and that some other differences may apply.
198. No Government official informed the
Special Rapporteur of article 8 (b) of the 1984 Burma Act, under which, the
Council of State may, in the interest of the State revoke the citizenship,
associate citizenship or naturalized citizenship of any person except a citizen
by birth.
V. THE NATIONAL CONVENTION FOR DRAFTING A NEW
CONSTITUTION AND THE TRANSFER OF POWER TO A CIVILIAN
199. Under article 21 (1) of the Universal
Declaration of Human Rights, everyone has the right to take part in the
government of his country, directly or through freely chosen representatives.
200. Article 21 (3) states that the will of
the people shall be the basis of the authority of government; this shall be
expressed in periodic and genuine elections which shall be by universal and
equal suffrage and shall be held by secret vote or by equivalent free voting
procedures.
201. In 1988 the SLORC announced that
elections would be held. Two hundred and thirty-three political parties were
formed by February 1989. Fifty-three contested the election. The rest either
were declared illegal, had boycotted the elections (and were then declared
illegal for having boycotted) or could not organize sufficiently to put up
candidates, in part, because of the legal restrictions on lawful assembly and
freedom to publish and distribute campaign material.
202. On 27 May 1990, general multi-party
elections were held. Governmental as well as non-governmental sources told the
Special Rapporteur that these elections were held in a free and fair manner.
Ninety-three parties contested the elections, of which 27 won seats. Results
published by the Government showed that the National League for Democracy
(NLD), then headed by the presently detained leaders U Tin Oo (Chairman) and Daw
Aung San Suu Kyi (General Secretary), won 392 of the 485 seats contested (80
per cent of the vote). Of those, 11 died (1 while in custody) and over 70 were
jailed and/or disqualified. There are 281 remaining representatives with 84 of
these potential representatives still under investigation as to their campaign
expense accounts or other potential campaign irregularities. At present, the
NLD is allowed to send 97 MPs and 5 members of the party to the National
Convention.
203. The Shan National League for Democracy
(SNLD) had 23 elected representatives. Of these, three died (of natural causes)
and two were disqualified by the Election Committee. Eight are still being
investigated by the Election Commission.
204. The Rakhine Democracy League won 11
seats; the SLORC-backed National Union Party (NUP) won 10 seats; the Mon
National Democratic Front won 5 seats; the National Democratic Party for Human
Rights won 4 seats. Four other parties won 3 seats each; 5 political parties
won 2 seats each; 12 political parties won 1 seat each and 6 independents won
seats, totally 485 seats altogether.
205. Government Authorities informed the
Special Rapporteur that the intent of the elections had been misunderstood.
Following the mass demonstrations for democracy in 1988, the then Chairman of
the SLORC, General Saw Maung, announced the military coup and stated that
"the military must first try to solve difficulties and hardships faced by
the people and then carry out a general election." It was stated that the
purpose of the elections had not been to turn over the Government to the
elected party, but to select the persons who would draft the new constitution,
after which, there would be a change in government. This turning over of the
government would occur only after the new constitution provided a legal basis
for doing so.
206. On 27 July 1990 Declaration No. 1/90
stated that a broad-based national conference would be convened so that all
factors that should be taken into consideration in drawing up the constitution
could be discussed and made available to the drafters of the constitution. The
Convention was announced for January 1993.
207. On 24 April 1992, by Declaration No. 11/92, the SLORC announced that there
would be meetings with the leading members of the elected parliament from
existing legal political parties and the independent elected members of
Parliament within two months, for the purpose of convening the National
Convention in accordance with Declaration No. 1/90.
208. On 10 July 1992, a coordination meeting
for the convening of the National Convention was held. It was chaired by a
15-member SLORC Steering Committee headed by Major General Myo Nyunt, Commander
of the Yangon Military Command. Twenty-seven elected members of Parliament from
the seven remaining legally-standing parties attended. The rules of procedure
were determined by the Steering Committee. After three days, Major General Myo
Nyunt announced that a general consensus had been reached that delegates from
eight different categories would be invited to participate in the National
Convention:
Five delegates from each of the
legally-standing political parties;
Delegates who are the elected
representatives;
About 200 persons representatives of the
different "nationalities" in proportions determined by percentage of
population;
Peasants - about 100;
Workers - about 100;
Intelligentsia - about 100;
Public servants - about 100;
Special invitees of the Commission - about
50.
These approximately 650 representatives,
totalling about 70 per cent of the overall participants, were to be selected by
the SLORC, primarily at the township level by the local SLORC representatives.
209. In total, 702 delegates had been named
to the National Convention. The representatives of the seven parties which won
seats in the elections and which are the only ones of the original twenty-seven
which still exist are the NLD, SNLD, NUP, Union Pao National Organization, Lahu
National Democratic Party, Mro or Khami National Solidarity Organization and
the Shan State Kokang Democratic Party.
210. The Government informed the Special
Rapporteur that there would be free discussion at the National Convention
within the parameters of the six points determined by the SLORC for discussion:
Non-disintegration of the Union;
Non-disintegration of national solidarity;
Consolidation and perpetuation of
sovereignty;
Emergence of a genuine multi-party democratic
system;
Development of eternal principles of justice,
liberty and equality in the State;
Participation of the military (Tatmadaw) in
the leading role of politics in the State of the future.
211. As explained to the Special Rapporteur,
the SLORC is responsible for determining and administering the rules of
procedure by which the discussions will take place. These rules of procedure
have reportedly not yet been specified to the delegates. The SLORC is also
responsible for the taking of minutes during the Convention and for preparing
the final report to be submitted to the SLORC after the Convention. The SLORC
will then convene the Constitutional Drafting Committee.
212. By Declaration 1/90, the SLORC stated
that the representatives elected in the multi-party democracy general elections
in May 1990, would be responsible for drawing up the new Constitution.
According to statements by Government authorities to the Special Rapporteur,
Declaration 1/90 remains extant.
213. In regard to Declaration 1/90, during
meetings with various Government officials, the Special Rapporteur was
variously informed that the elected representatives would be allowed to take a
"leading role", that elected representatives would be allowed to
participate in the drafting process in which all opinions expressed in the
Convention would be reflected; that they would be allowed a "leading role"
but that Constitutional experts as determined and selected by the SLORC would
also participate; that participation in the Drafting Committee would be
determined on the basis of maintaining the integrity of the State and would be
a step in the transition to democracy, but that this determination was a
question of internal affairs not to be interfered with by the international
community.
214. Non-governmental groups and individuals
informed the Special Rapporteur that all elected representatives had been
required to sign their agreement to Order No. 1/90. The Special Rapporteur was
informed that, several elected representatives and party workers were arrested
for refusing to sign.
215. Government officials told the Special
Rapporteur that it has not been determined if after the constitution is drafted
there will be a referendum to endorse it. No answer was received as to whether
a general election will be held to elect the People's Assembly under the new
constitution, nor was an answer obtained as to whether the Military Orders and
laws instituted by the SLORC would be abolished under the new Constitution.
Government sources indicated that these decisions would be taken by the
Constitutional Drafting Committee members.
216. The Special Rapporteur was further
informed that point number 6 of objectives on the agenda of the National
Convention, i.e., the "leading role" of the military (Tatmadaw) in
the future government was not an objective agreed to by the elected
representatives. The Special Rapporteur was told that it is not clear what role
or influence the Tatmadaw is to carry out in the Drafting Committee and how its
role in the future, democratic government as defined in the constitution to be
drafted was another point of great concern to the elected representatives.
217. The National Convention was announced
for January 1993. On 9 January 1993, the National Convention was convened with
speeches by the Chairman of the Steering Committee and SLORC member, General
Myo Thant. There was no other discussion. Several different national
constitutions translated into Burmese were said to have been received for
consideration by the delegates. Reports received by the Special Rapporteur
indicate that a number of elected representatives decided to attempt discussion
as to point number 6 of the objectives, i.e., the "leading role" of
the Tatmadaw in the new government. It is reported that the following day, the
SLORC announced that the National Convention was to be postponed until
February. The delegates were told to return home and not to remain in Yangon.
Information received by the Special Rapporteur does not clarify whether these
same elected representatives will be allowed to participate when the Convention
is reconvened.
VI. CONCLUSIONS
218. The visit of the Special Rapporteur to
the Union of Myanmar at the invitation of the Government marked the first time
international examination of the situation of human rights in Myanmar has been
taken up under a public procedure by the Commission on Human Rights by its
resolution 1992/58.
219. The Government facilitated the visit,
including travel within the Union of Myanmar to Rhakine state and to all three
new townships near Yangon, to the projected site of the new university in Dagon
New Township, to Insein Prison, to a youth sports facility, some new highway
construction projects and extended many courtesies to the Special Rapporteur.
220. "Full and unreserved
cooperation" as required under Commission on Human Rights resolution
1992/58, however, was not extended to the Special Rapporteur. Many persons,
including non-governmental organizations, private groups and individuals
wishing to make contact with the Special Rapporteur in order to provide
information relevant to the performance of his mandate, as well as persons whom
the Special Rapporteur had requested to see, were prevented from doing so
through intimidation and threats on the part of the military intelligence. The
Special Rapporteur was not allowed to see any of the political leaders,
particularly the Nobel Peace Prize laureate, Saw Aung San Suu Kyi, and elected
representatives deprived of their liberty.
221. Myanmar is a Member State of the United
Nations and is thus bound by all the obligations of the Charter of the United
Nations without selectivity. Myanmar became a party to the Geneva Conventions
of 1949 in August 1992 but has not yet become party to the two Additional
Protocols thereto of 1977. Myanmar is not a party to the International Covenant
on Civil and Political Rights or the International Covenant on Economic, Social
and Cultural Rights.
222. Myanmar is a party to the ILO Forced
Labour Convention, 1930 (No. 29) and in 1955 it ratified the ILO Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87).
In regard to Myanmar's compliance with this Convention, at the 79th session of
the International Labour Conference held in 1992, the Myanmar Government
representative stated that "(T)he new constitution will incorporate the
rights of all workers to form their own independent trade unions in conformity with
the democratic system." However, it was recalled in that session that the
case of Myanmar had been considered the previous year (1991) and that since
then, no progress had been made despite the assurances given by the Government
representative and that furthermore, "In the meantime, the available
information on this subject referred to the extreme degree of atrocities and
the unprecedented escalation of violations of human rights committed by the
military regime".
223. The Government representative recalled
that his country was experiencing a period of transition towards democracy, and
asked that his Government be given more time to obtain results. It was then
clarified that the availability of the choice of trade union pluralism was an
obligation derived from the Convention, that had nothing to do with the
political situation, and it was suggested that the Government be asked to take
prompt action to correct the situation at the legislative level (see
Provisional Records of the International Labour Organisation Conference, 79th
session, 1992, pp. 60-61).
224. Myanmar is a party to the Convention on
the Rights of the Child of 1989. At the time of ratification, Myanmar deposited
a number of understandings and reservations pertaining to article 37 on the prohibition
of torture, cruel, inhuman or degrading treatment and article 15 on freedom of
association and peaceful assembly. Article 37 pertains to the non-derogable
principle of international customary law which prohibits torture, cruel,
inhuman or degrading treatment in all circumstances regardless of the political
system, times of political, social or economic transition or threats to the
non-disintegration and national sovereignty of a State. Furthermore, when
taking into consideration that these reservations and understandings are in the
context of the treatment of children, they must be seen as absolutely contrary
to the object and purpose of the Convention.
225. In regard to the understandings and
reservations deposited on freedom of association and peaceful assembly, it
should be taken into account that the "laws" considered applicable in
the restriction of these rights are martial laws and other emergency orders
imposed by the military Government in order to protect the "supreme national
interest, namely the non-disintegration of the Union, the non-disintegration of
national solidarity and the perpetuity of national sovereignty". These
concepts have been repeatedly invoked by the Government to restrict free
participation in the political process and in the transition to a democratic,
civilian government. In the context of this Convention, these restrictions are
also to be imposed on children. For these reasons, the understandings and
reservations in regard to article 15 should also be considered as contrary to
the object and purpose of the Convention.
226. Many domestic laws contravene the basic
underlying principles of jurisprudence. As a general principle, the laws of a
country should be clear, unequivocal and consistent, accessible to the public
and equitably applied. Various SLORC Orders including Order No. 1/90 pertaining
to the participation of the elected representatives in the Constitutional
Drafting Committee, and most particularly, the 1982 Citizenship Law, have been
unaccessible to those to whom they would be applied, they have been vague,
randomly interpreted and arbitrarily applied. Government authorities
themselves, in explaining the law to the Special Rapporteur proffered
contradictory interpretations. Lawyers and elected representatives told the
Special Rapporteur that they did not have any idea which laws and orders were
applied, how they were applied or to whom they applied. The new Citizenship Law
provides a striking example of discriminatory application. The Law, which was
not actually applied until 1988 (the year the new flow of Rakhine refugees
began to Bangladesh) jeopardizes in particular the status of Myanmar Muslims of
Rakhine state. Historically, the Rakhine Muslims have been unable to obtain
nationality or residency status identification cards and thus cannot now prove
any kind of residency or previous nationality status. Secondly, under this new
law, persons must prove that they have Burmese nationality back to all eight
great-grandparents. The Special Rapporteur was informed that these provisions
of the law were directed primarily at the Rakhine Muslim population to forbid
them from ever gaining nationality or associate nationality (a category of
second-class citizenship). The Special Rapporteur has concluded that the effect
of this law is to create conditions which promote statelessness. Categories of
persons at high risk of becoming victims of human rights violations may create
flows of refugees which overburden other countries and create threats to peace
and tranquillity within the region.
227. In regard to restrictions on personal
freedoms inter alia, freedom of expression, including the freedom to receive
and impart information and the right of peaceful assembly, according to
testimony received by the Special Rapporteur, violations occurred primarily as
a result of attempts of citizens to participate freely in the political process
and the transition to the democratically elected civilian government. Peaceful
assembly of five or more persons, publication and distribution of political or
social ideas, literature or ideas critical of the Government or the military,
have been systematically repressed.
228. The Special Rapporteur received numerous
reports of violations of physical integrity rights. Detentions without minimum
guarantees for persons under custody, torture, cruel, inhuman or degrading
treatment, disappearances and arbitrary execution have been carried out by the
Myanmar authorities. The amount of written and oral testimony received by the
Special Rapporteur was copious. Apart from a small amount of written
information which was discounted because the Special Rapporteur was unable to
independently verify the allegations, the testimony compiled was consistent. It
formed the basis for the Special Rapporteur's assessment that these physical
integrity violations in Myanmar have arisen primarily in three major contexts:
attempts by citizens to participate freely in the political process and the
transition to the democratically-elected civilian government, forced portering
and forced labour and the imposition of oppressive measures directed at ethnic
minority groups.
229. According to information received, some
of these violations have been occurring for many years; nevertheless, the
evidence compiled by the Special Rapporteur indicates that the violations have
not only continued but have increased over the period of the four years
beginning on 18 September 1988 when the SLORC took over as the military
Government.
230. In regard to summary executions,
although the death penalty is permitted under Myanmar law, no death sentence
has been carried out since 1988. On 6 September 1992, military tribunals were
revoked and on 1 January 1993, all death sentences passed by civil or military
courts or tribunals between 18 September 1988 and 31 December 1992 were
commuted to transportation for life (life imprisonment).
231. According to information received by the
Special Rapporteur, Myanmar authorities were responsible for carrying out
arbitrary executions, death under custody and death due to torture within the
context of armed conflict. This category of violations would include
particularly torture (including rape) and arbitrary executions of persons
during forced relocation of entire villages by the army. Other such violations
included acts of reprisal by the military and torture or execution of persons
suspected of being insurgents or giving aid to insurgents. Torture and death of
porters by the military have also been prevalent. The ethnic minority groups,
including the Shan, Karen, Karenni, Mon and the Rakhine Muslims were victims of
these violations. Deaths of political leaders or students due to torture or
cruel and inhuman conditions while under custody, however, occurred in
circumstances unrelated to any armed conflict.
232. Hundreds of disappearances occurred when
persons were taken from villages for forced portering, particularly from the
Shan, Mon and Rakhine states. Dozens of Rakhine Muslim women told the Special
Rapporteur that their husbands had been taken away by the military for forced
portering and had never returned. In addition, many detentions of elected
representatives, political leaders, students or other persons detained after
the 1988 and 1990 demonstrations, began as disappearances. The torture reported
of these persons occurred primarily during the period before the
acknowledgement of the detentions by the Government. Acknowledgement was in
most cases made after formal sentencing, which in some cases did not take place
until days before the person was released. After the 1988 and 1990
demonstrations, thousands of persons were killed and many who never returned
home were presumed by their families to have been killed by the military. The
authorities have denied all such allegations and have not taken any steps to
clarify the fate of these persons. It has been alleged that the bodies of
hundreds of these persons were buried in mass graves in a military site near
the airport and in Hlaing Thaya New Township where access is only possible by
ferry.
233. Regarding the treatment of porters,
torture, cruel, inhuman or degrading treatment, disappearance or arbitrary
execution occurred while porters were forcibly under the power of the Myanmar
army. Some of the violations, such as placing porters weighted down with loads
of 45 kilogrammes or more on the front lines, occurred in conditions of armed
conflict. But other allegations of violations of these physical integrity
rights of porters occurred while under the power of the authorities of Myanmar
outside of armed conflict situations. These reports were carefully verified by
the Special Rapporteur in accordance with standard United Nations procedures.
234. Dozens of escaped porters told the
Special Rapporteur that they had been tortured and had witnessed other porters
being tortured or killed during forced labour and portering either for
development projects or for the military. They told the Special Rapporteur that
persons from villages were abducted for portering. Village headmen were forced
to round up persons for the military. Persons were transported in cruel,
inhuman or degrading conditions, beaten if weakened by exhaustion, disease and
exposure and then often left to die.
235. In the case of the Myanmar Muslims of
Rakhine state, testimony and information evaluated strongly indicate, that they
have been singled out as objects of these physical integrity violations. As a
result, approximately 250,000 Rakhine Muslims have been forced to flee across
the border into Bangladesh as refugees. The Special Rapporteur was told by the
Government that not one Myanmar Muslim from Rakhine state had fled Myanmar
because of ill-treatment. One official suggested that they had been lured
across the border by subversive elements and by the promise of international
aid. Another Government authority stated that none of the persons in the
Bangladeshi refugee camps had come from Myanmar and that they had voluntarily
gone there from Dhaka, Bangladesh.
236. Between 7 and 14 December 1992, when the
Special Rapporteur visited Myanmar, approximately 1,700 of these persons had
returned (without international supervision) to Myanmar. As of this writing,
over 17,000 have now been returned. International humanitarian organizations
and members of the international community have expressed serious concern that
the repatriations have not been carried out under conditions that are believed
to have been voluntary, dignified or providing safety. Monitoring of the
conditions of safety of these returnees is not being permitted by the Myanmar
Government. This has given rise to fears of a resurgence of cyclical repression
of these Myanmar Muslims as occurred at the time of independence in 1948, in
1978 when a census was carried out leading to the flight of 200,000 Rakhine to
Bangladesh, and again in 1991 which gave rise to the present mass exodus to
Bangladesh.
237. In regard to detention of political
leaders and other persons attempting to participate freely in the political
process, it was impossible for the Special Rapporteur to determine how many
persons in this category remain in detention, but it is believed that there
remain scores of persons still in detention without any of the judicial
safeguards considered as a minimum standard by the international community.
Among these is the Nobel Peace Prize recipient, Daw Aung San Suu Kyi, who was
detained without trial in 1989 under the 1975 State Protection Act. The Act was
then amended in August of 1991 when her term of detention had almost expired,
in order to allow for prolongation of her detention.
238. The law was applied in an ex-post facto
manner in contradiction to international legal standards. Recent reports stated
that she would be released after the National Convention and after the
Constitution was drafted and the new government had taken charge. Although over
1,700 persons were released under SLORC Order No. 11/92 in April 1992, the
Special Rapporteur has received confirmed reports that new detentions of
political leaders have taken place in 1993.
239. The National Convention preparatory to
the drafting of the constitution was convened on 9 January 1993. After one and
a half days the Convention was postponed reportedly because some elected
representatives were preparing to bring up the question of the "leading
role of the Tatmadaw (army) in the new government". Several persons were
reportedly arrested for having distributed written material.
240. The National Convention was reconvened
on 1 February. Discussion on the constitution is taking place under a panel of
45 chairmen elected by the 8 groups represented as delegates. Of these
chairmen, only one is a member of the National League for Democracy which won
80 per cent of the vote in the national elections. It has been announced that
the universities will reopen on 19 February 1993.
241. On the basis of the visit to Myanmar and
the well-documented information received, the Special Rapporteur has assessed
that serious repression and an atmosphere of pervasive fear exist in Myanmar.
He found that there is a lack of accountability on the part of the Government
and an absence of legal and administrative protection and/or recourse available
for victims and families of victims of human rights abuses. In the light of
these findings, the Special Rapporteur recommends that the Commission on Human
Rights continues its close monitoring of the situation of human rights in
Myanmar and extend the mandate of the Special Rapporteur to report to the
Commission at its fiftieth session.
VII. RECOMMENDATIONS
242. In the light of the above conclusions,
the Special Rapporteur submits the following recommendations for the
consideration of the Government of Myanmar:
(a) Although the Special Rapporteur believes
the Government should give effect to the political will of the people by
transferring power to the freely and fairly elected civilian government;
nevertheless, he is of the opinion that implementation of the following
non-political, human rights recommendations should not be delayed by, nor
subordinated to, considerations of political transition.
(b) The Government of Myanmar should fulfil
in good faith the obligations it has assumed under Articles 55 and 56 of the
Charter of the United Nations "to take joint and separate action in
cooperation with the Organization for the achievement of ... universal respect
for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language and religion." Other rights under
the Charter should not be invoked as limitations on these obligations assumed
erga omnes.
(c) The Government of Myanmar should consider
accession to: the International Covenants on Human Rights; the Convention
against Torture, Cruel, Inhuman or Degrading Treatment or Punishment and to the
two protocols additional to the Geneva Convention of 1949. In addition, it
should immediately withdraw its reservations and understandings to articles 15
on freedom of association and 37 regarding the prohibition of torture of
minors, of the Convention on the Rights of the Child.
(d) The system of law, both constitutionally
and legislatively, in
(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
************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
1994
UNITED NATIONS
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
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
C. The
visit to camps in
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
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 "
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
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
8. On
9. On
10. Beginning
in early 1992, a mass exodus of Myanmar Muslims from
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
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 England and obviously spoke English well. At the outset, he
paraphrased what he called an English proverb: "When one flies over a
cuckoo's nest, one meets with problems and difficulties". Dr. Aung Khin
Sint stated that the Special Rapporteur should know that those he meets would
face problems and would be likely to be sentenced to 10 years' imprisonment. He
said that he had once flown over a cuckoo's nest and he did not want to do the
same thing again. Therefore, he must be careful how to answer the questions
raised by the Special Rapporteur. If he answered "wrong", his 20-year
prison sentence would become 40 years. He further stated that, as for the
reasons of his imprisonment, they were clearly stated as according to existing
laws: such information could be obtained from the Government. He said he had
been tried in a special court, i.e. not an ordinary court. It was his own
choice that he did not hire a lawyer because he wanted to defend himself. He had
received his sentence recently and was intending to appeal through the proper
channels. Dr. Aung Khin Sint informed the Special Rapporteur that he was
treated well in the prison and had even received a new tooth in his first week
there. In concluding, he repeated that he did not want to be in prison for 40
years, and so he preferred to say no more.
28. Following
the meetings with the political leaders in prison, the Special Rapporteur
returned to the reception room where he requested and was shown the prison
records. Specifically, three registry books were brought: one, as a general
example, from several years back, and then the two books wherein U Tin U and
Dr. Aung Khin Sint were registered. The books were found and brought with
relative ease, and all were in order, i.e. all necessary entries had been made
including bases of imprisonment, dates, etc. The entry of U Tin U stated, inter
alia, that he had been admitted on 22 December 1989 at 16.20 p.m. and that he
had been sentenced for breaching the 1950 Emergency Law, sections 5 (a), (b),
(c) and (g), and also Law 114. It was also recorded that he had been sentenced
to three years plus seven years' imprisonment and that he had appealed. Dr.
Aung Khin Sint's entry stated, inter alia, that he entered the prison on 27
October 1993 and had been sentenced on 15 October 1993 to a total of 20 years
as follows: (a) 7 years for violation of section 5 (j) of the 1950 Emergency
Law; (b) 11 years (7 years plus 4 years) for 2 offences of sections 6/17 and 20
of the Publications and Printing Law; and (c) 2 years for violation of section
5 (1) (4) of the Official Secrets Act.
7. Visits to hospitals
29. On
the morning of 12 November 1993, the Special Rapporteur visited the First
Hospital in the Hlaing Thaya New Township and the Yangon General Hospital in
Yangon. On the afternoon of the same day, he visited the First Military
Hospital in Yangon. On the morning of 15 November 1993, the Special Rapporteur
visited the Jivitadana Sangha Hospital for Monks and Nuns in Yangon. The
buildings and facilities of the hospitals looked clean and adequate. The
doctors and nurses were competent, well trained, courteous and dedicated to
their work. The Special Rapporteur was told at Yangon General Hospital, the
largest and most sophisticated of the four, that they needed more advanced
equipment for diagnosis and surgery. The Special Rapporteur requested to see
the storerooms of medical supplies at each hospital. They all seemed to have a
full complement of medical supplies which were said to be replenished
regularly. The Special Rapporteur observed, however, that some medical supplies
at the First Hospital in Hlaing Thaya New Township, the smallest and least
sophisticated of the four, had just been freshly delivered in boxes. While the
Special Rapporteur was not able to find any concrete evidence to prove the
allegation that people suffer from a shortage of medicine because medical
supplies were given to the military first and some were sold on the black
market at high prices not easily affordable to ordinary citizens, he learned
from interviews with ordinary people on the street that they cannot get enough
medicine even at a large hospital.
30. At
the First Military Hospital, which mainly serves the military personnel and
their families (although it was explained that about 20 per cent of the
patients were non-military people), the Special Rapporteur was told that it was
just about to start a training programme with the help of the International
Committee of the Red Cross (ICRC) on the subject of war medicine and treatment.
They use the "Rules for Behaviour in Combat" booklet in their
education. Through this training, doctors will pay more attention to cases of
untoward injuries, such as injuries suffered in fighting and possibly alleged
injuries suffered from torture and the like. The military doctors do visit in
the prisons, too. There were said to be occasional fights between prisoners and
sometimes with guards, and the doctors try to note the cases. But the Special
Rapporteur was told that it was not easy to discern how injuries were actually
sustained. Aside from the ICRC training programme conducted in Myanmar, the
Government has sent the military's Chief Instructor and the head of its
Judge-Advocate-General's office to the courses given by the International
Institute of Humanitarian Law at San Remo, Italy, on humanitarian law to be
followed by two more weeks of training at the ICRC headquarters in Geneva. In
terms of their own training programmes, it was explained that humanitarian law
was taught in the Defence Services Academy and two other military colleges.
8. Visits to the Myanmar Red Cross Society
and the Myanmar Medical Association
31. On
the afternoon of 11 November 1993, the Special Rapporteur visited the Myanmar
Red Cross Society at their offices and met with its representatives led by Dr.
Tin U. The subject of discussion went directly to the problem of AIDS. In
response to the inquiry of the Special Rapporteur, it was explained that there
are fewer than 1,000 cases of AIDS in Myanmar and between 4,000 and 5,000 cases
of HIV+. However, the numbers are on the increase and the Society is responding
to the problem through a large programme of public health education. With
respect to the specific problem of the Myanmarese girls who had returned from
Thailand diagnosed HIV+, Dr. Tin U himself had gone to the Thai border to
inspect the situation. He said that the girls who had returned from Thailand
were living together and were being "rehabilitated" through learning
cooking and sewing and other skills in the facility operated under the
Department of Social Welfare. Of the total of 139 such girls, 43 had tested
HIV+. The reason for the high ratio of HIV+ among the returnees was explained
that they were sent back to Myanmar because they were suspected of having been
infected. On the subject of the Geneva Conventions, the Myanmar Red Cross
Society was cooperating with the ICRC in a dissemination project. Such
cooperation was expected to continue. In the next days, the ICRC Military
Coordinator was to be lecturing to officers of the army.
32. On
the morning of 16 November 1993, the Special Rapporteur met with the
representatives of the Myanmar Medical Association. The Special Rapporteur was
informed that a Food and Drugs Control Act had recently been passed and under
this law several projects were under way to address the problem of shortage of
medical supplies. Consequently, there was said to be "no shortage of
essential drugs".
9. Visits to university campuses
33. On
the morning of 10 November 1993, the Special Rapporteur visited Dagon
University which had been recently opened in the Dagon New Township. There were
a few newly constructed buildings for offices, classrooms, auditoria and
general stores. There were evident plans to construct more buildings with the
intention of making a large university accommodating more than 10,000 students
in the future. The day of the Special Rapporteur's visit coincided with
registration day at the university and there was a crowd of young students in
the registration office waiting for the admission registration process to be
completed. The Special Rapporteur asked about 10 young men and women to gather
with him in an empty room to have a private conversation. All of them, looking
bright and honest, said that they were interested in mathematics or natural
sciences and were disinterested in politics. In his discussions with the Rector
and other staff of the university, the Special Rapporteur learned that the
content and textbooks of the lectures in all subjects taught at universities in
Myanmar are centrally controlled and that it was not possible for individual
professors or instructors to develop their own courses using materials or
textbooks of their own choice. The Special Rapporteur stated that such practices
were contrary to what he knew of "academic freedom" and would
severely handicap the university's capacity to encourage learning and research
through free thinking, free discussion and free expression of ideas.
34. On
the afternoon of 15 November 1993, the Special Rapporteur briefly visited the
campus of Yangon University. The university gates were officially closed
because the university was in recess, so the Special Rapporteur was told, and
there were practically no students or staff visible on the large campus
composed of many mostly very old buildings for classrooms, offices, faculty
residences and student dormitories surrounded by green trees. Some pedestrians
were visible casually walking through the campus. Apart from the lack of
visible student life, the campus appeared normal.
10. Visit to
35. On
13 and 14 November 1993, the Special Rapporteur visited Rakhine State under the
kind and efficient arrangements of the Government of Myanmar and the military.
He observed the operations at two reception camps near the border with
Bangladesh. His visit coincided with the return of some 500 persons who had
fled to Bangladesh. There were three Bangladesh officials who accompanied the
returnees and assisted in the identification processes conducted by the
Myanmarese officials. Officials from both countries were seen to be handling
the matter quite professionally and efficiently. However, the returned refugees
waiting for identification or for provision of food of other daily necessities
appeared uncertain of their fate. The Special Rapporteur interviewed three male
returnees privately, but through interpreters provided by the local authorities
which was found necessary because the witnesses did not understand the Burmese
language. They were chosen by the Special Rapporteur randomly from among 10 or
so returnees preselected by the local authorities. They all said that the
reason they had gone to Bangladesh was because of a shortage of food and an
unavailability of employment. They stated that they had decided to come back
because they had been told that the Myanmar and Bangladesh Governments had
signed an agreement and that they had to come back. Two of the three returnees
interviewed reported that they had returned to their former houses which required
some repair; the third said that he had had to go to his father's house because
his own house had been destroyed by a rain storm.
36. On
the morning of 14 November 1993, the Special Rapporteur met with Major-General
Win Myint, Commander of the Western Command of Rakhine SLORC. He told the
Special Rapporteur that the problem of the Muslim population in Rakhine State
was complex and that its history dated back to the British colonial era when
the British had brought labourers from Bengal, which was then also under
British rule, to the more fertile land of what is now known as Rakhine State.
Many of these labourers stayed even after the area became part of what is today
Myanmar. There are now approximately 600,000 Muslim residents in Rakhine State
the total population of which is approximately 2,300,000. Myanmar people were
said to have treated the Muslim population kindly and today the Government is
trying to assist the development of the area by constructing schools,
hospitals, roads and bridges. However, many of the Muslims were said not to
love the country or to want to work. The difficulty of economic life was said
to be the main reason for their move to Bangladesh. It was said that they had
thought that they would get enough food, clothing and shelter in the UNHCR
camps in Bangladesh without hard work. There was also said to be the problem of
insurgent Muslim groups in Bangladesh who obstruct the process of repatriation.
11. The meetings with leaders of political
parties
37. On
the afternoon of 14 November 1993, the Special Rapporteur met with
representatives of three political parties participating in the National
Convention, i.e. the Union Kayene League, the National League for Democracy
(NLD) and the National Unity Party (NUP). In spite of the strong request by the
Special Rapporteur to meet with them in private at his office in the United
Nations compound in Yangon, the meetings were arranged to take place at a
Government Guest House (36 Inya Road). The location and atmosphere were
evidently not conducive to a free and unencumbered exchange of views.
38. The
Special Rapporteur first met with the two representatives from the Union Kayene
League: Chairman U Mahn Tay Aung Than and Vice-Chairman U Saw Than Aung. The
representatives stated that the group had been formed in 1948 (reorganized in
1988) and that five delegates from the Union Kayene League freely attended the
meetings held in the context of the National Convention. The League's
membership was said to be approximately 5,000. The 27 Central Committee members
all stood for election in the 1990 elections, but all failed to be elected.
They stressed that they were natives and citizens of Myanmar, which they
referred to as their "motherland". They stated: "We must do our
best for our motherland". The motto of the Union Kayene League was said to
be "Peace and Prosperity". They claimed to seek love and peace
between all national races without hatred. In this vein, the representatives
insisted that the country needs reconciliation "because some in the past
have said unscrupulous things: we need law and order to make national
solidarity". They said that they preferred the 1947 Constitution because
it provided for more democracy. The representatives said that, when the
National Convention is meeting, they could get together in groups and circulate
their materials to their people. However, they added that "the world is
not as wide as before; whatever we do, they know".
39. Then,
the Special Rapporteur met with the two representatives of the NLD: Chairman U
Aung Shwe and Vice-Chairman U Lwin. They explained that there were 92 delegates
from the NLD participating in the National Convention. In the Convention, 15
points which would eventually form 15 chapters in the new constitution had been
agreed upon by May 1993. On 6 May 1993, the Work Committee for the National
Convention told the delegates that they would next discuss the draft chapter by
chapter, beginning with the first chapter. However, on 6 June 1993, the
delegates were told to state their views on all the chapters. The NLD was not
prepared to do so; they were only prepared to make a detailed statement on the
first chapter (entitled "Basic Principles"). Most other parties were
prepared to make comments on all the chapters. The Shan NLD representatives
spoke in detail on the first chapter, but said very little on the other
chapters. On 16 November 1993, the Work Committee announced that the National
Convention had concluded all the discussions on all the chapters and that the
Convention would go into recess until 18 January 1994. This was contrary to
what was understood by the NLD. The NLD considers that the Convention completed
deliberation only on the first chapter and, therefore, they were not certain
what would happen when the Convention was to reconvene in January 1994. The
representatives informed the Special Rapporteur that the delegates to the
National Convention could discuss matters in relative freedom in the Kyaikkasan
Grounds (the camp where all the delegates stay during the meetings of the
Convention), but, of course, there is always someone around when they meet and
discuss matters. When the NLD delegates wish to meet and discuss matters at
their office, they have to seek permission from the Government which is not
easy to obtain in the case of the NLD (other parties seem to get such
permission more easily). Also, the NLD was not permitted to publish any
documents while other political parties seem to manage to publish their
documents and newsletters.
40. The
Special Rapporteur met with two representatives of the National Unity Party
(NUP), which was formed out of the former Burma Socialist Programme Party
(BSBP), and claimed a membership of about 1 million: U Khin Maung Cyi, an
Executive Committee member, and U Han Shwe, the Secretary of the Political
Department. They said that the party had eight delegates in the National
Convention (five for the party and three from the elected representatives). The
Special Rapporteur was informed that the NUP knew that they were expected to
make statements on all 15 chapters of the new constitution and they did so in
June 1993. The Special Rapporteur was further informed that the NUP was
permitted to produce booklets and to distribute to its members.
C. The visit to camps in
41. Following
his visit to Myanmar, the Special Rapporteur travelled to the frontier of
Myanmar on the Thai side in order to meet with persons from Myanmar living in
camps which skirt the Myanmar-Thai border. The visit to Thailand was conducted
between 16 and 20 November 1993. The two camps visited were driving distance
from the Thai city of Mae Sot. It is believed that there are approximately
60,000 persons who have fled Myanmar and are living in similar camps in the
border area.
III. ALLEGATIONS
A. Arbitrary arrest and detention
42. The
Special Rapporteur welcomes the fact that more than 2,000 persons detained
under the emergency regulations have been released since April 1992.
Allegations have nevertheless been received that under the prevailing SLORC
orders and other emergency decrees many persons have been arrested for
criticizing the SLORC and the army (Tatmadaw) or for openly criticizing the
process of the National Convention. Reports indicate that up to 60 persons may
have been detained since July 1993 for engaging in political activity although
many of them have now been released.
43. By
a letter dated 30 September 1993, the Special Rapporteur requested the
Government of Myanmar to provide information regarding the following persons
allegedly arrested: (a) U Aung Myint, Daw Khin Mar Aye and Htay Myint (alias
Khin Soe) who were allegedly arrested in December 1992 for printing and
distributing leaflets criticizing the National Convention; (b) Dr. Aung Khin
Sint and U Than Min who were allegedly arrested in August 1993 for being "engaged
in unscrupulous activities with intent to undermine the National
Convention"; (c) Ma Thi Da, Nay Thin Myint, Bo Lay, Thet Oo, Tin Htune,
Khin Maung, Kyaw Than, Kyi Myint and Than Min who were allegedly arrested in
August 1993 in connection with the National Convention.
44. By
a joint letter of 12 October 1993, the Special Rapporteur and the Chairman of
the Working Group on Arbitrary Detention requested the Government of Myanmar to
provide information concerning the legal situation of the following persons who
were allegedly arrested on or about 3 September 1993 and detained at Insein
prison on charges, in particular, of printing material without a permit,
distributing illegally printed matter and committing acts against State
security: Ma Thi Da, U Khin Maung, U Kyi Myint, U Kyaw Than, U Lwin Oo, U Win
Kyi, Ne Thin Myint, Bo Lay, Thet Oo, Ne Win, U Thin Thun, U Han Sien, Myu Win
and Than Myin (some names overlapping with those listed in the foregoing
paragraph).
45. In
a note verbale dated 17 October 1993, the Government of Myanmar provided the
Special Rapporteur with the following response to the above inquiries:
"1. Legal
Action was taken against U Aung Myint, aged 57, Daw Khin Mar Aye, aged 53, and
Htay Myint (alias) Khin Soe, aged 37, for distribution of seditious leaflets
which could be detrimental to the security of the Union and maintenance of
public law and order in accordance with section 5 (i) of the 1950 Emergency
Provisions Act.
"2. Legal
Action was taken against the following persons:
(a) Dr.
Aung Khin Sint
(b) U
Than Min
(c) Ma
Thi Da
(d) Nay
Tin Myint
(e) Bo
Lay
(f) Thet
Oo
(g) Tin
Htun
(h) Khin
Maung
(i) Kyaw
Than
(j) Kyi
Myint
(k) Than
Myint
for infringing the existing laws. Each person
has been charged and is being prosecuted in the Yangon Division Law Court
presided over by two Divisional Judges.
"3. In the Union of Myanmar,
arrest or detention of a person is made in accordance with the provisions
contained in the Criminal Procedure Code enacted in 1898. The person concerned
is formally charged and defended by a Legal Counsel, and a fair trial is
conducted by a competent court. He has the right to appeal. The details
concerning arrest or detention and trial of cases are appended herewith.
"4. The
following are the detailed charges against the persons mentioned in the summary
of allegations received:
Name of defendant Charges
(Charges against 11 persons - (a) to (k) -
are:
Unlawful Association Act 17 (1) - distribution and dissemination during 1993 in
Yangon Division of literature and leaflets issued by terrorist groups.
1950 Emergency Provisions Act 5 (j) Action which could be detrimental to the
security of the Union and order: distribution and dissemination of literature
and leaflets.
Section 17/20 of Registration of Printers and
Publishers Law Infringement of this law for illegal action mentioned above.
(a) Khin
Maung (alias) Nyi Nyi Unlawful Association Act 17 (1
(b) Than
Min (alias) Tin Tun Aung
(c) Thet
Oo
(d) Ko
Lay (alias)Aung Naing Oo
(f) Lwin
Oo
(g) Kyaw
Than
(h) Ma
Thida
(i) Han
Sein
(j) Kyi
Myint
(k) Tin
Tun (alias) Rashid
------------------------------------------------------------------------
(a) Dr.
Aung Khin Sint
(b) U Than Min (alias) Tin Tun Aung
1950 Emergency Provisions Act 5 (j)
Both were found to have instigated the
delegates attending the National Convention by surreptitious means to cause
disruption and disorder among the delegates. Both of them distributed leaflets
in May 1993 fraudulently under the name of 'monks and laity'.
Section 17/20 of Registration of Printers and
Publishers Law
The infringement of this Law for illegal
action mentioned above, including letters of threat to the delegates.
------------------------------------------------------------------------
(a) Dr. Aung Khin Sint
The Burma Official Secrets Act, section 5 (1)
(4)
He infringed the above Law by making use of
an official document in committing the above-mentioned illegal acts."
46. With
respect to Criminal Procedure Code of 1898 referred to by the Government of
Myanmar in paragraph 3 of its letter quoted above, it has recently been brought
to the attention of the Special Rapporteur that the licences of 10 lawyers were
revoked by order of the High Court on 30 July 1993 as a consequence of
convictions by military tribunals for various offences including offences of
the 1950 State Protection Act, section 5 (j). The background of this order and
its implications for the administration of justice in Myanmar are not yet clear
to the Special Rapporteur.
47. With
respect to the charges and judicial procedures in the case of Dr. Aung Khin
Sint, the Special Rapporteur has been provided with copies of the judgements
delivered by the North Kayain District, Yangon Division, Court on 15 October
1993. The judgements were separately given for charges under: (a) the 1950
Emergency Provisions Act, 5 (j); (b) Section 17/20 of the Registration of
Printers and Publishers Law; and (c) The Burma Official Secrets Act, section 5
(j) (4). However, each judgement refers to both Dr. Aung Khin Sint and U Than
Min. Moreover, and as concerns the factual basis of the accusations leading to
the judgements, the content of an allegedly threatening letter distributed by
Dr. Aung Khin Sint was not provided in the judgement.
B. Torture and other cruel, inhuman or degrading
treatment
48. Extensive
allegations have been received that torture and other cruel, inhuman or
degrading treatment have continued to be used by the Myanmar Army, police and
intelligence services personnel. Such practices are said to have been used
routinely in the interrogation of persons and in the treatment of porters,
forced labourers and members of ethnic minorities.
49. The
serious cases of torture and other cruel, inhuman or degrading treatment
continue to occur in the context of military operations, forced portering and
labour and forced relocation. They typically take the following forms: (a)
forcing persons to carry heavy loads (in most cases, about 50 kg) of weapons,
ammunition, food and other supplies for the army in mountainous areas and in
harsh weather conditions; (b) beating, drowning and stabbing in cases of
disobedience or attempts to escape; and (c) raping and other sexual assaults.
The Special Rapporteur is particularly concerned about some recent reports
alleging the taking of women and children for purposes of portering, where men
are not available, and of subjecting them to the kinds of treatment described
above.
50. In
addition to the extensive reports received by the Special Rapporteur alleging
widespread torture and other cruel, inhuman and degrading treatment in Myanmar,
he has also interviewed persons claiming to be victims of such human rights
violations. On some specific cases, the Special Rapporteur draws attention to
the report of the Special Rapporteur on torture (E/CN.4/1994/31, paras.
399-403); in this connection, the Special Rapporteur is also aware that the
Government of Myanmar has recently responded in detail to the allegations
transmitted by the Special Rapporteur on torture.
C. Disappearances
51. The
Special Rapporteur has received allegations stating that during the mass
demonstrations of 1988 and December 1991, hundreds of persons, including
students, monks, workers, writers, professors and others, were arrested or shot
to death and that the whereabouts of many of these persons have never been
established. It is believed that many remain in unacknowledged detention and
that others have been buried in mass graves reported to be located in an army
base near the airport and in the Hlaing Thaya New Township. It has also been
reported that many of the persons detained recently for their activities in
connection with the National Convention have been held incommunicado for at
least a period of time after the detention. Many cases of disappearance have
been reported in the context of military operations and forced portering,
labouring or relocation. One report received by the Special Rapporteur stated
that "the victims were simply taken away by SLORC troops and
'disappeared'".
52. A
specific response of the Government of Myanmar to the allegation of
disappearances is found in the note verbale dated 17 October 1993 sent by the
Government to the Special Rapporteur. As reproduced by the Special Rapporteur
in his interim report to the General Assembly (A/48/578, para. 12), the
Government stated, in particular, the following in paragraphs 5 to 7 of its
reply:
"5. Allegations
stating that during the mass demonstrations of 1988 and December 1991, hundreds
of persons including students, monks, workers, writers, professors and others
were arrested or shot to death and that the whereabouts of many of these have
never been established; that many remain in unacknowledged detention and that
others have been buried in mass graves reported to be located in an army base
near the airport and in the new Hlaingthaya Township are totally false and
unfounded.
"6. Under
the existing laws, organizations empowered to arrest any person who has
committed an offence maintain a register of persons arrested by them in
accordance with the law, and reports have to be submitted to the relevant
authorities concerning such arrests.
"7. Under
the existing laws of Myanmar, no one can be arrested and detained if it is not
in accordance with the law. It is provided in section 61 of the Code of
Criminal Procedure and no police officer shall detain in custody a person
arrested, for a period exceeding 24 hours. Where it is necessary to detain such
an accused for more than 24 hours, a special order of a Magistrate has to be
obtained under section 167 of the Code of Criminal Procedure. If an arrest
which is not in accordance with the law is made, the person making the arrest
is liable to be punished under sections 341 to 348 of the Penal Code."
D. Extrajudicial, summary or arbitrary
executions
53. The
Special Rapporteur welcomes the decision of the Government of Myanmar,
according to SLORC Order No. 12/92, to commute all death sentences passed by
civil or military courts or tribunals between 18 September 1988 and 31 December
1992 to transportation for life (life imprisonment). However, the Special
Rapporteur is particularly concerned about the reports from various reliable
sources that there are still many cases of arbitrary killings of civilians by
soldiers. For instance, the Special Rapporteur was informed that, as recently
as September and October 1993, 18 villagers were murdered in Kyauk Kyi
Township, Pegu Division, by members of Infantry Regiment Nos. 73 and 351. The
victims were generally charged as "KNU (Karen National Union)
sympathizers", but none of them were in fact involved in anti-government
activity. According to this report, those 18 victims were known cases and it is
believed that many other villagers, who had been taken by the army and whose
whereabouts remain unknown, were also murdered.
54. Other
cases of reported extrajudicial, summary or arbitrary executions were described
in paragraphs 20 to 23 of the interim report of the Special Rapporteur to the
forty-eighth session of the General Assembly (A/48/578) of 16 November 1993. In
response to the request of the Special Rapporteur to receive information
describing any investigations into these allegations undertaken by the
Government, the Government of Myanmar replied, by a note verbale dated 17
October 1993, as follows (and as previously reported by the Special Rapporteur
in paragraph 12 of his interim report referred to above):
"All allegations stated under this
heading are totally false and unfounded. While undertaking our three main
causes, which are non-disintegration of the union, unity and solidarity of the
national races and perpetuity of sovereignty, the Tatmadaw has never, at any
time committed such atrocities nor will it ever do so in future. There have
been numerous cases running into thousands where the Tatmadaw, even in
skirmishes with the insurgents, have treated captured persons very well and
then handed them over to the police for prosecution for the offences committed.
Atrocities such as demanding rice, livestock or money from villagers, rape of
rural women, forced conscription and mass execution of villagers are being
committed only by the insurgents time and again. It is believed that these
allegations are based upon false information given by the insurgents, persons communicating
with insurgents and persons who are endeavouring to bring down the government
of the State Law and Order Restoration Council."
55. Although
the Special Rapporteur is aware that sometimes reports of arbitrary killings
tend to be exaggerated or distorted, that there are cases of good treatment of
villagers and captured insurgents by the Tatmadaw soldiers and that the
insurgents also commit serious violations of human rights now and then, the
Special Rapporteur cannot deny, in view of so many reports confirmed by him as
reliable, the fact that atrocities are being committed consistently and on a
wide scale by the soldiers of the Myanmar Army against innocent villagers
(particularly those belonging to ethnic minorities) in the form of extrajudicial
execution, forced labour, rape, forced relocation and confiscation of property.
In private conversations held with the Special Rapporteur, some high ranking
officers of the army acknowledged the existence of such atrocities, but added
that these were committed only rarely by some bad soldiers.
E. Treatment of the Muslim population in
Rakhine State
56. In
accordance with the agreement reached between Myanmar and Bangladesh on 28
April 1992, repatriation of the Myanmar residents having fled to Bangladesh began
on 22 September 1992. In order to facilitate a systematic and orderly
repatriation, five reception camps were established on the Myanmar side of the
border on 15 May 1992. Of the five camps, only three are in fact being used.
The Special Rapporteur visited two such camps in the course of his visit to
Rakhine State on 13 and 14 November 1993. According to the figures supplied by
the Government, a total of 9,209 households and 41,098 persons (20,103 males
and 20,995 females) have been repatriated since 22 September 1992 and 12
October 1993. However, a substantial number of Muslim population from Rakhine
State still remain in the camps on the Bangladesh side of the border. Many of
them are said to be fearful of possible ill-treatment by the Myanmar authorities
upon return and, therefore, do not wish to come back without some kind of
international monitoring.
57. In
this connection, the Special Rapporteur welcomes the willingness of the
Government of Myanmar to cooperate with UNHCR, through elaboration of a
Memorandum of Understanding with UNHCR signed on 5 November 1993, in order to
ensure the voluntary and safe return of the Muslim population who had fled to
Bangladesh from Rakhine State. The Special Rapporteur was informed that
preparations for UNHCR involvement in the repatriation process is making steady
progress and some UNHCR staff would soon be sent to Myanmar. A fund-raising
operation for this purpose is under way and there have already been several
positive responses from potential donors.
F. Labour rights
58. The
Special Rapporteur has been informed that workers in Myanmar do not enjoy basic
labour rights including, in particular, freedom of association and the right to
organize. There is hardly any trade union movement, and workers and trade unionists
who criticize the Government would risk interrogation and arrest. The Special
Rapporteur takes note of the fact that the matter has been raised before
appropriate bodies of the International Labour Organisation (ILO). It is hoped
that the work of the ILO would result in progress in the area of labour rights
in Myanmar. It should also be pointed out that the new constitution to be
drafted would have clear provisions for basic labour rights in accordance with
international standards.
G. Rights of the child
59. The
Special Rapporteur is pleased to note that, by a letter dated 15 October 1993
from U Ohn Gyaw, Minister for Foreign Affairs of Myanmar, to Dr. Boutros
Boutros-Ghali, Secretary-General of the United Nations, the Government formally
withdrew the reservations made by Myanmar upon accession to the Convention on
the Rights of the Child in July 1991 with respect to article 15 (regarding
freedom of association) and article 37 (regarding the prohibition of torture,
cruel, inhuman or degrading treatment in regard, inter alia, to the treatment
of children during interrogation). However, the Special Rapporteur is disturbed
to learn from the testimony of witnesses that there exist many cases of
children being forced to serve the army as porters. This practice, which is
reported to remain widespread, would involve a variety of human rights
violations, including forced labour, cruel and degrading treatment (if not also
torture), and threats to life.
H. The National Convention
60. On
9 January 1993, the Government convened a National Convention to lay down the
basic principles for the elaboration of a new and enduring constitution. Of the
702 delegates from 8 categories of people, 49 are selected by the 10 political
parties remaining after the 1990 elections, 106 are elected representatives and
the remainder of the delegates from the other six categories were chosen by the
SLORC. Before any real discussion could take place at the National Convention,
a broad framework of basic objectives was given by the Government as follows:
(a) non-disintegration of the Union; (b) non-disintegration of national
solidarity; (c) consolidation and perpetuity of sovereignty; (d) emergence of a
genuine multi-party democratic system; (e) development of eternal principles of
justice, liberty and equality in the State; and (f) participation of Tatmadaw
in a leadership role in the national politics of the future.
61. The
Special Rapporteur has been informed that each of the eight groups represented
were to have a panel of five chairmen who would lead the discussions and that,
in the political parties group, only one chairman was from the NLD - the party
that won a majority in the 1990 elections. In the elected representatives
group, where 89 of the remaining 106 delegates were from the NLD, no NLD
representatives were selected as chairmen.
62. In
response to the query by the Special Rapporteur with regard to the allegation
that, since the beginning of the National Convention, numerous participants
have been disqualified or arrested for allegedly contravening the guidelines
and, in particular, for having questioned the leadership role foreseen for the
Tatmadaw, the Government replied, in paragraph 34 of its note verbale of 17
October 1993, and as reproduced by the Special Rapporteur in his interim report
to the General Assembly (A/48/578, para. 12), as follows:
"The sweeping allegations that numerous
participants were disqualified or arrested for various reasons are totally
false. Out of all the delegates attending the National Convention, action was
taken against the following five delegates:
"(a) The
names of U Aung Htoo and Dr. Aung Khin Sint of the National League for
Democracy were struck from the list of delegates representing the National
League for Democracy. This action was carried out at the request of the
National League for Democracy itself;
"(b) Legal
action was taken against U Maung, who represented one of the national racial
groups, for infringement of existing laws;
"(c) A
representative from Pekhon constituency was disqualified as he became involved
in and joined a terrorist group;
"(d) The
name of U Maung Ngwe of the Union Paoh National Organization was struck from
the list of delegates as he passed away on 25 April 1993."
I. The movement toward reconciliation with
insurgents
63. The
Special Rapporteur has been informed that Secretary One, General Khin Nyunt,
during his visit to Kayah State on 17 and 18 November 1993, spoke on the
Government's efforts to restore peace and tranquillity and to promote social
and economic development in the country. In doing so he extended an official
invitation to the armed groups to return to the legal fold, to hold talks with
the Government and to join hands with the Government in the ongoing national
endeavours for the development of border areas and national races. It has been
reported that in response to this invitation the Karen National Union (KNU),
the largest armed insurgent group, has decided to enter into talks with the
Government of Myanmar. It is still too early to make any meaningful assessment
of developments in this respect, but, from the viewpoint of protection of human
rights, such a move towards true national reconciliation should be welcomed
because, as stated above, many cases of serious human rights violations are
being committed in the context of military operations.
IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
64. The
visit of the Special Rapporteur to the Union of Myanmar at the invitation of
the Government was facilitated by the efforts, cooperation and courtesy
extended to him by the officials of the Government, in particular General Khin
Nyunt, Secretary One of the SLORC, and U Ohn Gyaw, Minister for Foreign
Affairs. Most of the requests of the Special Rapporteur to meet with persons
pertinent to his mandate were met, including meetings with the
Attorney-General, Chief Justice, Minister of Information, some political
leaders in detention and representatives of political parties. However, the
Special Rapporteur was disappointed that he was not allowed to meet with Daw
Aung San Suu Kyi. He also regrets that the meetings with the representatives of
political parties were held at a place and in an atmosphere not fully ensuring
privacy. The Special Rapporteur, however, would wish to commend the Government
for arranging quite efficiently his visits to Rakhine State, Insein prison and
other places and facilities that he requested to visit.
65. The
Special Rapporteur generally observed in Yangon and Sitway (the capital of Rakhine
State) that there were visible signs of relaxation of tension in the life of
the people. There were many consumer goods in market-places where many shoppers
crowded. Streets and bridges have been constructed or improved. There were many
cars on the streets. In fact, in the centre of Yangon, there were traffic
congestions and parking problems at certain times of the day. However, the
Special Rapporteur was informed that there were many poorer people in the
cities and, in particular, in the countryside; these persons did not share in
the prosperous life, and rather suffered from inflationary pressures on basic
necessities such as rice and medicines.
66. The
Special Rapporteur continues to be concerned about the serious restrictions
imposed upon people in the enjoyment of civil and political rights. The people
do not generally enjoy freedoms of thought, opinion, expression, publication
and peaceful assembly and association. They seem to be always fearful that
whatever they or their family members say or do, particularly in the area of
politics, would risk arrest and interrogation by the police or military
intelligence. Consequently, most people with whom the Special Rapporteur
casually spoke avoided any conversation touching upon political subjects. Several
people told him that there were many persons wishing to tell the Special
Rapporteur their stories, but were too afraid to come to see him.
67. The
persons whose civil and political rights are most severely restricted are the
leaders of political parties, particularly the NLD leaders, and delegates to
the National Convention, again those from the NLD. Because of both visible and
invisible pressures, they cannot assemble in a group, cannot freely discuss,
and cannot publish or distribute printed materials. In this situation it is
difficult to assume that, in the National Convention, open and free exchanges
of views and opinions are taking place in order to produce a truly multi-party
democratic constitution.
68. The
Special Rapporteur is pleased to note that a little over 2,000 persons who had
been imprisoned for political activities have been released since April 1992.
He would, however, express concern that there are still hundreds of such
persons detained, most notably Daw Aung San Suu Kyi. He also regrets that,
since the summer of 1993, up to 60 persons have been arrested for engaging in
political activities. While some of them have been released, still others are
detained and some have been sentenced to long prison terms.
69. Government
representatives have repeatedly explained to the Special Rapporteur that the
Government is willing to transfer power to a civilian government, but that, in
order to do so, they have to have a strong constitution and that, in order to
have a strong constitution, they are doing their best to complete the work of
the National Convention. However, the Special Rapporteur cannot help but feel
that, given the composition of the delegates (only one out of seven delegates
was elected in the 1990 elections), given the restrictions imposed upon the
delegates (practically no freedoms to assemble, to print and distribute
leaflets or to make statements freely), and given the general guidelines to be
strictly followed (including the principle regarding the leading role of
Tatmadaw), the National Convention does not appear to constitute the necessary
"steps towards the restoration to democracy, fully respecting the will of
the people as expressed in the democratic elections held in 1990" (General
Assembly resolution 47/144, para. 4).
70. The
Special Rapporteur welcomes the initiative of the Government of Myanmar to
withdraw the two reservations relating to articles 15 and 37 of the Convention
on the Rights of the Child.
71. The
Special Rapporteur also welcomes the signing on 5 November 1993 of a Memorandum
of Understanding between the Union of Myanmar and the United Nations High
Commissioner for Refugees to facilitate and guarantee the voluntary and safe
return of Myanmar residents from Bangladesh.
72. The
Special Rapporteur further welcomes the undertaking of various training
programmes for military officers and soldiers with the cooperation of the
International Committee of the Red Cross and the Myanmar Red Cross Society in
the area of international humanitarian law.
73. The
Special Rapporteur is paying special attention to the recent successes of the
Government initiative to invite the armed insurgent groups to enter into talks
with the Government and he notes in particular some initially positive response
from the Karen National Union. He is hopeful that the process will move forward
in the direction of obtaining true reconciliation and peace throughout the
country.
B. Recommendations
74. In
the light of the foregoing conclusions, the Special Rapporteur submits the
following recommendations for the consideration of the Government of Myanmar:
(a) The
Government of Myanmar should fulfil in good faith the obligations it has
assumed under Articles 55 and 56 of the Charter of the United Nations "to
take joint and separate action in cooperation with the Organization for the
achievement of ... universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language and
religion". In this respect, the Special Rapporteur would wish to note that
the Government of Myanmar is in an ideal position because it could encourage
the delegates to the National Convention to include various human rights
provisions in the new constitution using, as a reference, the provisions of the
Universal Declaration of Human Rights, copies of which the Minister of
Information has agreed to circulate among the delegates;
(b) The
Government of Myanmar should consider accession to the International Covenants
on Human Rights, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and the two Protocols Additional to the
Geneva Conventions of 1949;
(c) Myanmar
law should be brought into line with accepted international standards regarding
protection of physical integrity rights, including the right to life,
protection against disappearance, prohibition of torture and cruel, inhuman or
degrading treatment, providing humane conditions for all persons under
detention and ensuring the minimum standards of judicial guarantees. Freedoms
of thought, assembly and expression, including a free press and media, should
be fully guaranteed;
(d) All
political leaders, including elected political representatives, students,
workers, peasants and others arrested or detained under martial law after the
1988 and 1990 demonstrations or as a result of the National Convention, should
be tried by a properly constituted and independent civilian court in an open
and internationally accessible judicial process. If found guilty in such
judicial proceedings, they should be given a just sentence or, alternatively,
they should be immediately released with the Government accepting
responsibility to refrain from all acts of intimidation, threat or reprisal
against them or their families. With respect to Daw Aung San Suu Kyi, the
Government should release her immediately. In any event, she should not be kept
under house arrest after 20 July 1994 when, according to the Government's own
interpretation of Myanmar law, there will be no legal basis to continue to keep
her under house arrest;
(e) The
Government of Myanmar should take the necessary steps to bring the acts of
soldiers, including privates and officers, in line with accepted international
human rights and humanitarian standards so that they will not commit arbitrary
killings, rapes and confiscations of property, or force persons into acts of
labour, portering, relocation or otherwise treat persons without respect for
their dignity as human beings. When the hiring of local villagers for porterage
and other works may be required for governmental purposes, it should be
obtained on a voluntary basis and adequate wages should be paid. The nature of
work should be reasonable and in accordance with established international
labour standards. When relocation of villages is considered necessary for
military operations or for development projects, proper consultation with the
villagers should take place and appropriate compensation should be paid for
those relocations which may be determined necessary for reasons of the public
good;
(f) Military
and law enforcement personnel, including prison guards, should be thoroughly
informed and trained as to their responsibilities for all persons in full
accord with the standards as set out in international human rights instruments
and humanitarian law. Such standards should be incorporated into Myanmar law
and legislation, including the new constitution to be drafted. The training
programme undertaken recently with the cooperation of the ICRC is a good start
in this direction and should be continued;
(g) Given
the magnitude of the abuses, official condemnation should be made by the
Government of all acts by authorities involving human rights violations. Such
acts, including all acts of intimidation, threat or reprisal, should not
benefit from the present system of complete denial by, and impunity under, the
Government;
(h) The
Government of Myanmar should consider the revision of the 1982 Citizenship Law
to abolish its burdensome requirements for citizenship. The law should not
apply its categories of second-class citizenship in a manner which has
discriminatory effects on racial or ethnic minorities, particularly Rakhine
Muslims. It should be brought into line with the principles embodied in the
Convention on the Reduction of Statelessness of 30 August 1961;
(i) The
Government of Myanmar is encouraged to cooperate with UNHCR in facilitating and
ensuring the voluntary and safe return of Rakhine Muslims from Bangladesh.
-----
************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
1995
UNITED NATIONS
Economic and Social Council
Distr. GENERAL
E/CN.4/1995/65
12 January 1995
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-first session
Item 12 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS, IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE TO
COLONIAL AND OTHER DEPENDENT COUNTRIES AND TERRITORIES
Report on the situation of human rights in
Myanmar, prepared by the Special Rapporteur, Mr. Yozo Yokota, in accordance
with Commission resolution 1994/85*/
CONTENTS
Paragraphs
Introduction 1-16
A. Mandate 1-4
B. Historical background 5-16
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR 17-94
A. Introduction 17
B. Visit to Myanmar 18-93
C. Visits to camps in Thailand 94
II. ALLEGATIONS 95-144
A. Extrajudicial, summary or arbitrary execution 95-103
B. Arbitrary arrest and detention 104-113
C. Torture and other cruel, inhuman or degrading treatment 114-117
D. Freedom of movement 118-120
E. Freedom of expression 121-123
F. Labour rights 124-127
G. Rights of the child 128-129
H. Treatment of the Muslim population in Rakhine State 130-135
I. The National Convention 136-141
J. The movement towards reconciliation with insurgents 142-155
III. CONCLUSIONS AND RECOMMENDATIONS 145-155
Annexes:
(Documents given to the Special Rapporteur by
the Myanmar authorities)
I. Response of the Government of Myanmar to
allegations of extrajudicial execution while in Custody, as raised by the
Special Rapporteur during his meeting with Colonel Kyaw Win of the Directorate
of Defence Service Intelligence on 10 November 1994 p38
II. National armed groups which have returned
to the legal fold p42
III. Chart showing particulars of those
against whom action has been taken for having contact with KNU insurgents and
who have been released by the Myanmar authorities during 1994 p 43
Introduction
A. Mandate
1. The mandate of the Special Rapporteur of
the Commission on Human Rights on the situation of human rights in Myanmar has
been described in each of the Special Rapporteur's previous reports to the
General Assembly (A/47/651, A/48/578 and A/49/594), and to the Commission on
Human Rights (E/CN.4/1993/37 and E/CN.4/1994/57). The mandate, initially
articulated in Commission resolution 1992/58 and extended most recently by the
Commission in its resolution 1994/85 of 9 March 1994 (approved by the Economic
and Social Council in its decision 1994/269 of 25 July 1994), required the
Special Rapporteur to establish or to continue direct contacts with the
Government and the people of Myanmar, including political leaders deprived of
their liberty, their families and their lawyers, with a view to examining the
situation of human rights in Myanmar and following any progress made towards
the transfer of power to a civilian government and the drafting of a new
constitution, the lifting of restrictions on personal freedoms and the
restoration of human rights in Myanmar. In resolution 1994/85, the Commission
urged the Government of Myanmar to extend its full and unreserved cooperation
to the Commission and the Special Rapporteur and, to that end, to ensure that
the Special Rapporteur had effectively free access to any person in Myanmar
whom he might deem it appropriate to meet in the performance of his mandate,
including Daw Aung San Suu Kyi; and requested the Special Rapporteur to report
to the General Assembly at its forty-ninth session and to the Commission at its
fifty-first session.
2. The substantive issues addressed by the
Commission on Human Rights in resolution 1994/85 include the following
concerns: that the electoral process initiated in Myanmar by the general
elections of 27 May 1990 has not yet reached its conclusion and that the
Government still has not implemented its commitments to take all the necessary
steps towards democracy in the light of those elections; that many political
leaders, in particular elected representatives, remain deprived of their
liberty and that Daw Aung San Suu Kyi, a Nobel Peace Prize laureate, is still
under house arrest; and that serious violations of a variety of fundamental
rights continue, inter alia the practice of forced labour, including forced
portering and forced displacement of the population. The Commission also
expressed its concern about the continuous problems created in neighbouring
countries by the exodus of refugees from Myanmar.
3. In addition, the Commission took note of
the fact that the Government of Myanmar had acceded to the Geneva Conventions
of 12 August 1949; signed a memorandum of understanding on 5 November 1993 with
the Office of the United Nations High Commissioner for Refugees (UNHCR)
concerning the voluntary and safe repatriation of refugees from Bangladesh;
received the Special Rapporteur for a visit to Myanmar; and observed
cease-fires and undertaken negotiations with several minority groups.
4. The Special Rapporteur submitted a
preliminary report to the General Assembly at its forty-ninth session in
October 1994 (A/49/594 and Add 1). The present comprehensive report is
submitted to the Commission on Human Rights at its fifty-first session for its
consideration.
B. Historical background
5. In 1948, the Union of Myanmar (then called
Burma) gained independence from British colonial rule. From 1948 until 1962,
the country was governed by a parliamentary democracy based on the Constitution
of 2 September 1947. It provided for a federal system of government with
separate executive, legislative and judicial branches. The states under the
Union were considered autonomous. According to article 201 of the Constitution
of 1947, ethnic minorities had, in theory, the right to secede from the Union,
but, under article 202, this right was not to be exercised until 10 years from
the date of entry into force of the Constitution. In March 1948, an armed
insurgency against the then Government of Burma was begun by the Communist
Party of Burma. Between 1948 and 1961, various minority ethnic groups joined
the armed insurgency.
6. In March 1962, General Ne Win took power
in a coup d'état. He installed one-party (the Burma Socialist Programme Party)
rule under military control and embarked upon a programme known as the
"Burmese Way to Socialism". In 1974, a new constitution was drafted
under which one-party rule continued.
7. Towards 1988, nationwide demonstrations
began in reaction to the suppression of all civil and political rights since
the overthrow of the constitutional Government in 1962 and to the economic
failure as a consequence of the policy of the "Burmese Way to
Socialism".
8. From March to June 1988, students, workers
and monks demonstrated for more freedom and democracy, but the army used harsh
measures to crush the demonstrations. Hundreds of civilians were arrested and
many suffered severe injuries or died from ill-treatment in detention. Many
persons were summarily or arbitrarily executed. On 21 June 1988, the Government
imposed a ban on all public gatherings.
9. On 23 July 1988, General Ne Win resigned
as party leader and promised economic reform and the holding of a referendum to
end one-party rule and institute a multi-party system. However, demonstrations
continued and the army and riot police attacked the demonstrators. It was
reported that approximately 3,000 persons were killed in August 1988 alone. On
18 September 1988, the military took power and the State Law and Order
Restoration Council (SLORC) was set up under the chairmanship of the Chief of
Staff, Senior General Saw Maung. The National Assembly (Pyithu Hluttaw), the
Council of State and other governmental bodies were dissolved. Free elections
were promised by SLORC, but Daw Aung San Suu Kyi, daughter of General U Aung
San (the national hero of independence who was assassinated in 1947) and
General Secretary of the National League for Democracy (NLD), was banned from
campaigning on the grounds that she kept unlawful association with insurgent
organizations. On 20 July 1989, Daw Aung San Suu Kyi was detained by government
forces. She has been under house arrest without trial since then and, in 1991,
she was awarded the Nobel Prize for Peace. Many others, including most of the
important opposition political leaders, were also detained.
10. On 27 May 1990, general elections were
held in which the main opposition party (NLD) won 81 per cent of the seats (392
seats out of a total 485) and 60 per cent of the vote. However, the official
announcement of the results of the elections was postponed by SLORC in order to
allow the Election Commission set up by SLORC to scrutinize the expense
accounts of all elected representatives.
11. Beginning in early 1992, a mass exodus of
Myanmar Muslims from Rakhine State into Bangladesh was reported. At least
250,000 such persons sought refuge for fear of persecution. On 28 April 1992,
the Governments of Myanmar and Bangladesh signed an agreement for the voluntary
and safe return of the refugees. By October 1993, approximately 40,000 refugees
had returned to Myanmar under this arrangement.
12. On 5 November 1993, the United Nations
High Commissioner for Refugees (UNHCR) and the Government of Myanmar signed a
memorandum of understanding in an effort to ensure the voluntary and safe
repatriation of the persons who had left the country. This memorandum of
understanding was similar to the one between UNHCR and the Government of
Bangladesh signed on 12 May 1993. Both Governments expressed satisfaction at
this accord and at the participation of UNHCR. Between September 1992 and the
end of September 1994, a total of 75,000 refugees returned to Myanmar. Another
45,000 refugees are expected to return before the end of 1994.
13. In April 1992, General Than Shwe became
Chairman of SLORC after General Sa Maung had resigned from the post for reasons
of health. Since this change of leadership, a number of new policies have been
announced and implemented, including the release of many political leaders in detention
(among them the former Prime Minister U Nu, but not Daw Aung San Suu Kyi); the
holding of a national convention to draft the principles and guidelines for a
new constitution; the granting of permission to the family of Daw Aung San Suu
Kyi to visit her; the opening of universities and other institutions of higher
education; the lifting of the curfew order and martial law; and cessation of
the hearing of civilian cases by military tribunals.
14. On 9 January 1993, the National
Convention was convened, composed of 702 delegates in eight categories: (a)
representatives of political parties, including NLD (49); (b) representatives
elected in the 1990 elections (107); (c) representatives of national racial
groups (215); (d) representatives of peasants (93); (e) representatives of
workers (48); (f) representatives of the intelligentsia and technocrats (41);
(g) representatives of state service personnel (92); and (h) other invited
persons (57). The meeting of the National Convention has been adjourned several
times for reasons not clear to outside observers.
15. When the National Convention adjourned on
9 April 1994, the Chairman of the National Convention, Chief Justice U Aung
Toe, stated that agreement had been reached on the principles for drafting the chapters
of the constitution on the State, the state structure and the Head of State.
According to these principles, the country would be governed by an executive
president and two vice presidents, elected by presidential electoral colleges
formed by all members of the two houses of Parliament. The National Convention
reconvened on 2 September 1994. The subjects on its current agenda are
self-administered divisions and self-administered zones, the legislature, the
executive and the judiciary.
16. In July 1994, Daw Aung San Suu Kyi, began
her sixth year of house arrest. Earlier in the year, and for the first time
since her arrest, she was allowed to meet with persons other than her immediate
family. United States Congressman William Richardson met with her twice at her
home during his visit to Myanmar from 15 to 17 February. Also present at the
meetings were the Resident Representative of the United Nations Development
Programme (UNDP) in Myanmar, a representative of the United States Embassy, and
a reporter from The New York Times. On 20 September 1994, Daw Aung San Suu Kyi
attended another meeting with the Chairman of SLORC, General Than Shwe, and
Secretary One, Lieutenant General Khin Nyunt, at a governmental guest-house.
The meeting was the result of mediation by Dr. Rewata Dhamma, a Burmese
Buddhist monk living in the United Kingdom. During two visits to Myanmar in
1994, Dr. Rewata Dhamma met with Daw Aung San Suu Kyi, whom he has known for
many years, and also with members of SLORC. A second meeting between SLORC
representatives, Lieutenant General Khin Nyunt, Armed Forces Judge-Advocate,
General Brigadier Than Oo and Armed Forces Inspector-General, Brigadier General
Tin Aye and Daw Aung San Suu Kyi took place on 28 October 1994 at a
governmental guest-house.
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Introduction
17. In carrying out his mandate, the Special
Rapporteur has continued to seek information from all relevant sources. During
the past year, information in the form of letters and reports has been received
on a regular basis from a wide variety of individuals and non-governmental
organizations, as well as from the Government of Myanmar. In November 1994, the
Special Rapporteur visited Myanmar, conducted interviews with high-level
government officials, as well as representatives of various United Nations
specialized agencies and bodies, including the Office of the United Nations
High Commissioner for Refugees (UNHCR), the United Nations Development
Programme (UNDP) and the United Nations Children's Fund (UNICEF),
representatives of various non-governmental organizations and the people of
Myanmar both inside the country and outside as he paid visits to places
relevant to his mandate.
B. Visit to Myanmar
18. On 10 August 1994, the Special Rapporteur
addressed a letter to the Government of Myanmar requesting permission to visit
the country from 7 to 16 November 1994 and to have audiences with high
governmental officials and meetings in circumstances providing full
confidentiality with leaders of political parties, including those in detention
or under restriction, in particular Daw Aung San Suu Kyi. The Special
Rapporteur also requested full and free access to all individuals and
representatives of non-governmental and intergovernmental organizations, whom
he might deem it necessary to meet in the carrying out of his mandate or who
might have expressed the wish to meet him. He further requested permission to
visit prisons and other centres of detention, and to have confidential contact
with those detained. In addition, the Special Rapporteur requested that he be
granted full access to other areas of the country, in particular the eastern
part, for the purpose of carrying out unrestricted and confidential visits with
the recent returnees. By letter dated 23 September 1994, the Government replied
that the Special Rapporteur would be welcome in Myanmar.
19. The Special Rapporteur visited Myanmar
from 7 to 16 November 1994. Prior to the visit, the Special Rapporteur had been
in frequent contact with the Permanent Representative of Myanmar to the United
Nations Office at Geneva and with the Minister for Foreign Affairs, who
cooperated fully and facilitated the visit. During his visit to Myanmar all of
the Special Rapporteur's specific requests for meetings with high-level
government officials were met. Similarly, visits to Mon, Mandalay and Mengwe
States were facilitated with appropriate briefings, meetings and visits in the
areas concerned. In general, the Special Rapporteur enjoyed relative freedom of
movement and access to private persons and others of interest, with some
notable exceptions which will be addressed below. In addition, he was promptly
furnished with all the documentary information he requested before, during and
after his visit. Consequently, the Special Rapporteur would like to record his
deep appreciation to the Government of Myanmar for its cooperation in
facilitating his visit to the country and in responding to his requests for
information and explanations.
20. In Yangon the Special Rapporteur met with
the following governmental representatives: Lieutenant General Khin Nyunt,
Secretary One of SLORC; U Ohn Gyaw, Minister for Foreign Affairs; Colonel Kyaw
Win, Deputy-Director of the Directorate of Defence Services Intelligence;
Brigadier General Myo Thant, Minister of Information; U Tha Tun,
Attorney-General; and U Aung Toe, Chief Justice of the Supreme Court. In
Mawlamyine, Mon State, the Special Rapporteur met with the Vice-Commandant of
South Eastern Command, Col. Mya Nyein; in Mandalay, Mandalay State, with the
Commander of Central Command, Major-General Kyaw Than; and in Pakkokhu, Mengwe
State, with the Commander of North Western Command, Major-General Hla Myint
Swe.
21. In the course of his visit to Myanmar,
the Special Rapporteur paid visits to the following governmental institutions
and facilities: administrative offices of the Ministry of Home Affairs, Insein
and Mandalay prisons; the National Convention premises; Yangon University
campus; and Dagon University in the Dagon New Township.
22. The Special Rapporteur also visited and
met with representatives of the following national organizations and
institutions: the Myanmar Maternal and Child Welfare Association, the Union
Solidarity and Development Association, the Myanmar Red Cross Society and
representatives of the Department of Law at Yangon University.
23. On 11 November 1994, the Special
Rapporteur met with representatives of the following political parties which
are participating in the National Convention drafting the new constitution of
the Union of Myanmar: the National League for Democracy (NLD); the Union Kayene
League; and the National Unity Party (NUP).
24. While the information and views obtained in the course of his visits and
meetings will be reflected below under relevant subject headings, the Special
Rapporteur draws attention here to the salient aspects of the visits and
meetings mentioned above.
1. Meeting with Secretary One
25. On the morning of 14 November 1994,
Secretary One of SLORC, Lieutenant General Khin Nyunt, received the Special
Rapporteur at the Ministry of Defence. They discussed political, economic and
social changes and enjoyed a frank, open and lengthy exchange of views which
touched upon issues of concern for the respect of human rights in Myanmar.
26. On the matter of the general political
organization of the State, Lieutenant General Khin Nyunt explained that SLORC
took power in 1988 to counter anarchy that was prevailing in the country during
the riots and to re-establish security for the people and maintain stability in
a country that is composed of 135 ethnic groups. Lieutenant General Khin Nyunt
said that, to achieve unity in Myanmar, SLORC was managing a process of
national reconciliation in which a variety of insurgent groups were now being
brought back into the legal framework of discussions and the National
Convention was engaged in a process that would lead to the drafting of a new,
strong constitution for the country. Lieutenant General Khin Nyunt assured the
Special Rapporteur that once the new constitution had been drafted and adopted
elections would take place and a civilian government would take power. With
regard to the time frame for the transfer of power to a civilian government,
Lieutenant General Khin Nyunt stated that it was not yet the moment to specify
when a new civilian government would be formed under such a constitution.
However, he explained that it was the intention of the Government to complete
the process of the National Convention as soon as possible because it was
costing half a million kyats a day to manage. He also explained that, before
those goals were achieved, two basic conditions would have to be met: (a)
political and social stability must be maintained and (b) the "Union"
as a multi-ethnic State must be secured so as to avoid a disastrous dissolution
of the State. He strongly stressed that the Tatmadaw (the army) had no
intention of remaining in political power for ever.
27. Lieutenant General Khin Nyunt described a
variety of social and economic development initiatives which had been taken by
the Government in managing the process of national reconciliation and restoring
law and order since it took power in 1988, in order to improve the lives of the
people and help "build nationalism", i.e. the general sentiment of
belonging to one's beloved country and building and protecting the nation. In
this regard, Lieutenant General Khin Nyunt cited different projects launched by
the Government, for example, the construction of roads, bridges and railroads.
He said that such projects had been realized all around the country in order to
develop all the regions and to reduce the gap between rich and poor and between
urban and rural areas. Specifically, the transportation system in the country
was being improved and the Government was also attempting to improve
agricultural production by building several dams in the country. Regarding
these development projects, Lieutenant General Khin Nyunt said that the
slanderous stories about forced labour were not true and were only invented by
persons who did not want to see Myanmar developed, or by insurgent groups. He
stated that the people of Myanmar were of the Buddhist faith and they
contributed voluntarily to the development projects, believing that they would
be the first to enjoy the results on earth and thereafter. He said that the
army was also taking part in those works, together with prisoners, who would
have their sentences reduced.
28. On the general subject of human rights,
Lieutenant General Khin Nyunt explained that Myanmar had a population of 43
million persons, yet only a few hundred persons were criticizing the situation
of human rights in the country and writing and reporting false information.
29. Regarding the reasons for the detention
of Daw Aung San Suu Kyi, Lieutenant General Khin Nyunt noted that she was the
daughter of the national hero and had only come back into the country in 1988,
after several years of absence, in order to see her mother, who was ill. Her
absence from the country for a long period had not permitted her to understand
the political and social situation, i.e. the chaos instigated by the
Communists, which had prevailed in the country in 1988 and, therefore, while
she had been getting involved in political affairs, she had not realized that
she was being manipulated by "the Communists". Consequently she had
accepted leadership of the movement, which had then been unable to control the
riots. Concerning the Special Rapporteur's specific questions and his requests
to visit her, Lieutenant General Khin Nyunt stated that it was not yet the
appropriate moment for a visit. Since the Government was meeting her and
holding discussions with her, it did not want any interference in that
dialogue, which was being conducted in a "good manner" and based on a
"mutual understanding". He hoped that the Special Rapporteur
understood the circumstances and all the security, political and administrative
concerns that such a decision involved. When asked if the Government intended to
release her on 20 July 1995 in conformity with the law, Lieutenant General Khin
Nyunt answered that it was still too early to say and that the decision had to
be taken by the Council of Ministers and also at the level of SLORC. Secretary
One assured the Special Rapporteur that SLORC intended to continue its dialogue
with Daw Aung San Suu Kyi in the future.
30. Regarding the venue of the meetings
between political leaders and the Special Rapporteur, which were arranged to
take place at a government guest-house despite the strong request by the
Special Rapporteur to meet with them in private at his office in the United
Nations compound in Yangon, Secretary One said that politicians were quite free
to go about their business and to travel freely in the country with the
permission of the Government. However, they could not be allowed to disturb the
peace and tranquillity or bring about disorder. As a government, SLORC had to
take into consideration several concerns, i.e. economic and political,
including security, concerns. It was in that connection that he justified the
arrests of the five opposition activists which occurred between July and
October 1994. He added that, in order to understand the human rights situation
in the country, the situation had to be seen in the overall framework as
explained by him; people were not severely repressed.
31. Regarding collaboration with the
International Committee of the Red Cross (ICRC), Secretary One indicated that a
memorandum of understanding with ICRC was under active consideration and that a
favourable decision was expected in due course.
32. Lieutenant General Khin Nyunt ended the
meeting by stating that the Government was attempting to develop the country
politically, economically and socially, and that, although there were problems,
these would be overcome. It could not allow the country to be destroyed or to
disintegrate. It would carry on action, in accordance with the law, against any
activity aimed at disunity and destruction of the country.
2. Meeting with the Minister for Foreign
Affairs
33. The Minister for Foreign Affairs, U Ohn
Gyaw, received the Special Rapporteur on 8 November 1994. During the meeting,
various issues relevant to the mandate of the Special Rapporteur were
discussed.
34. The Minister for Foreign Affairs outlined
the cooperation of the Government of Myanmar with the United Nations and the
Special Rapporteur, whose tasks had been facilitated and requests met despite
the fact that the Government did not agree with the resolution of the Commission
on Human Rights. Regarding the Special Rapporteur's request to meet Daw Aung
San Suu Kyi, the Minister replied that the Government of Myanmar could not
respond to all the requests made by the various personalities who would like to
meet Daw Aung San Suu Kyi; otherwise it would become a "kind of
circus". He explained the long process which United States Congressman
William Richardson and Dr. Rewata Dhamma, a Burmese Buddhist monk, had followed
in order to see her, and added that Daw Aung San Suu Kyi as an individual had
also the right to refuse to see people.
35. With respect to the allegations of human
rights violations regarding forced portering and forced labour, the Foreign
Minister rejected them and said that they were completely false. According to
him, local inhabitants, because of their Buddhist faith, were voluntarily
cooperating in the various development projects in the country. These citizens
did not even ask for money because they would consider it to be an insult.
36. With regard to the National Convention
and the drafting of the Constitution, priority must be given to national
reconciliation and achieving peaceful relations between all the national races
in order to obtain a consensus in the country and secure the Union. When asked
by the Special Rapporteur if a copy of the Universal Declaration oft it was
impossible to distribute it among 700 delegates, but an English copy was
available at the Convention Library.
3. Meeting with the Deputy Director of the
Directorate of Defence Services Intelligence
37. On the afternoon of 10 November 1994, the
Special Rapporteur met with Col. Kyaw Win, Deputy Director of the Directorate
of Defence Services Intelligence. During the meeting, various issues relevant
to the mandate of the Special Rapporteur were discussed.
38. Col. Kyaw Win explained to the Special
Rapporteur that the principal aim of the current Government was to achieve
democracy in the country. He added that that objective could not be achieved
without stability in the country. Therefore, priority was being given to
national reconciliation and economic development.
39. Regarding political stability, Col. Kyaw
Win informed the Special Rapporteur that there were still three
"insurgent" groups (the Karen National Union (KNU); a Mon faction; and
the Karen National Union Party (KNUPP)) who were not taking part in the work of
the National Convention.
40. Regarding economic development, Col. Kyaw
Win provided the Special Rapporteur with details of the progress that had been
made in that domain, as well as the various development projects which were
under way in the country. He added that if the people of Myanmar did not have
food, clothes and houses, there would be no human rights in the country.
41. With regard to the allegations of human
rights violations regarding forced portering and forced labour, Col. Kyaw Win
said that those accusations mainly concerned locations where insurgent groups
were fighting against the Myanmar Army. Such false information was provided by
the insurgents to destroy the image of the Government.
4. Meeting with the Minister of Information
42. On the afternoon of 11 November 1994, the
Special Rapporteur met with Brigadier General Myo Thant, Minister of
Information, together with members of the Information Committee over which the
Minister presides. The discussion focused on the democratization process and,
in particular, the National Convention. The Minister first recounted the
process from its very start, explaining how the Preparatory Committee for the
National Convention was constituted, specifying the composition of delegations
to the National Convention and highlighting the achievements of each meeting of
the National Convention, since it began on 7 January 1993 up to recent
developments.
43. Regarding the suggestion made last year
by the Special Rapporteur that a copy of the Universal Declaration of Human
Rights, in the Burmese language, be provided to every National Convention
delegate in relation to deliberations on a future constitution, while the
Minister accepted the Special Rapporteur's suggestion and received an authentic
copy of the Universal Declaration of Human Rights in the English language,
together with an unofficial translation in the Burmese language, the
Declaration was not circulated to National Convention delegates as agreed. The
Minister told the Special Rapporteur that only an English copy was available at
the Convention Library.
44. The Minister provided further basic
information on the following subjects: (a) the availability of international newspapers
and magazines in Yangon; (b) the preparation of the country for the celebration
of 1996 as The Year of Tourism (Visit Myanmar Year); (c) the composition of the
Government, which was the same as the previous year; (d) the cost and
availability of basic commodities; and (e) the remaining number of political
leaders in detention or in prison.
5. Meetings with the Attorney-General and the
Chief Justice
45. On the morning of 15 November 1994, the
Special Rapporteur met with Attorney-General U Tha Tun after having earlier met
with Chief Justice Aung Toe. In his discussion with the Chief Justice, the
recent trials of political leaders, the National Convention (which the Chief
Justice is Chairing) and some issues of legislative reform (for which the Chief
Justice is not responsible, but of which he has some knowledge as a Member of
the Law Revision Commission formed by the Government) were addressed.
46. The discussion with Attorney-General U
Tha Tun revolved around new legislation, such as reform of existing Myanmar
legislation, for which the Attorney-General has some responsibility both in his
governmental office and as Chairman of the Law Revision Commission.
47. In response to the Special Rapporteur's
inquiries about the collaboration between the Government of Myanmar and ICRC,
the Attorney-General informed him that the Myanmar authorities were still
scrutinizing the draft memorandum of understanding to see if it affected the
sovereignty of the country and if it was in accordance with the national laws.
The Attorney-General also informed the Special Rapporteur that ICRC was
assisting the authorities in their task of spreading knowledge of international
humanitarian law within the armed forces. To that end, ICRC had held an
introductory three-day course for 27 high-ranking officers of the Myanmar
Defence Forces in April 1993. A full five-day course for tactical operations
commanders had taken place in Yangon in November 1993. It had been attended by
30 officers. A six-day seminar-workshop for trainers of the Myanmar Defence
Forces had been held in early November 1994.
6. Meetings with leaders of political parties
48. On the morning of 11 November 1994, the
Special Rapporteur met with representatives of three political parties
participating in the National Convention, i.e. the National League for
Democracy (NLD), the National Unity Party (NUP) and the Union Kayene League. As
last year, and in spite of the strong request by the Special Rapporteur to meet
with them in private at his office in the United Nations compound in Yangon,
the meetings were arranged to take place at a government guest-house (at 36
Inya Road). The location and atmosphere of the meetings were obviously not
conducive to a free and unencumbered exchange of views. In addition, one of the
party delegates told the Special Rapporteur that they had been notified to meet
with the Special Rapporteur only three hours before the meeting.
49. The Special Rapporteur first met with the
two representatives of NLD; Chairman U Aung Shwe and a member of the Central
Executive Committee, U Than Tun. They explained that, in the National
Convention, three headings of the 16 chapters in the forthcoming new
constitution had been agreed upon by November 1994. The NLD delegates told the
Special Rapporteur that most of their proposals in the National Convention had
not been agreed upon except for a very few parts. In the process, should there
be any disagreement which had to be settled through discussion, the position of
NLD was never taken into consideration. They were requesting that a clause
containing human rights provisions be included in the new constitution and they
were hoping that the Government would accept that proposition.
50. The representatives of NLD also informed
the Special Rapporteur that the delegates to the National Convention were not
permitted to publish or distribute any documents or newsletters. During the
sessions, they could read statements which were preapproved by the Chairmen of
the group. When the NLD members wished to organize meetings around the country
to meet the local population, they had to seek permission from the Government.
Permission was generally received, but not for everywhere. For example, in
Rakhine State, NLD leaders had wanted to meet with local inhabitants to explain
the work they were doing in the National Convention, but the Government had not
authorized the gathering. In any case, attendance at the meetings was not
allowed to exceed 50 persons. The Chairman of NLD further reported that three
years previously he had been told by the Government not to travel outside
Yangon without permission from the Local Council. The NLD delegates stated that
the situation of freedom of movement, expression and organization had improved a
little over previous years, but serious infringements of those basic human
rights were still prevalent in the country.
51. The NLD delegates agreed that Myanmar was
developing its infrastructure and that cities like Yangon and Mandalay were
growing. But that development was not benefiting everyone: the rich were
becoming richer, while the poor were suffering more. They reported their
concern about the problem of relocation of parts of the population from their
homelands to newly constructed townships in order to provide space for new
construction. They concluded the discussion on the economy by saying that the
economy in Myanmar would grow but the people would suffer a lot and that was
why they were asking the United Nations and international non-governmental
organizations to help the people of Myanmar, especially the children and women,
who had the greatest needs.
52. The NLD delegates informed the Special
Rapporteur about their knowledge of the meetings between SLORC and Daw Aung San
Suu Kyi through the coverage in the media. They hoped that a result would soon
be achieved and mentioned their preoccupation with the fact that, as she was
alone, she might not be able to conduct appropriate negotiations with SLORC
over a long period.
53. The Special Rapporteur met with two
representatives of the National Unity Party (NUP): U Chit Hlai, a member of the
Central Executive Committee, and U Tinlatt, a member of the secretariat. The
National Unity Party was formed out of the former Burma Socialist Programme
Party. They felt that the work at the National Convention was progressing and
the major principles for the Constitution had been formulated. The Convention
was now in the process of drafting articles on the basis of the principles.
There was no deadline for finishing the drafting of the Constitution. NUP had
eight delegates in the National Convention (five for the Party and three from
the elected representatives) and at every stage during the sessions the
delegates had made various proposals. But so far, they had not discussed major
issues. For instance, NUP preferred a parliamentary system because Myanmar
people were familiar with it from the period of British rule. However, the
majority of the delegates at the National Convention had agreed to a
presidential system. Therefore, the NUP delegates respected the majority's
decision. The Special Rapporteur was also told that there would be provisions
regarding human rights in the forthcoming constitution.
54. The NUP delegates informed the Special
Rapporteur that NUP was permitted to produce a monthly booklet informing
readers about its activities, the National Convention and human rights abuses,
and also pamphlets on political education. It could circulate those
publications among its members, but not in the National Convention. It could
also organize meetings within the country, except in some areas for security
reasons.
55. Regarding the meetings between Daw Aung
San Suu Kyi and SLORC, the NUP delegates hoped that they would lead to concrete
results, but said that they had no position on the process. They thought that
Daw Aung San Suu Kyi had had a poor knowledge of the country when she came back
in 1988 after several years of absence from Myanmar. They added that, when Daw
Aung San Suu Kyi got involved in the political context, she had a biased
analysis of the situation because she was misinformed and manipulated. They
hoped that the SLORC delegation which was to meet with her would be able to
change her mind.
56. The NUP delegates informed the Special
Rapporteur that the economic situation was improving, especially in the
agricultural sector where production had increased and much progress has been
made, particularly in dry areas. They would like to see the same progress in
the industrial sector and in trade where much had still to be achieved.
57. The NUP delegates ended the meeting by
saying that some of their members had been in government and understood how
difficult it was to govern the country, especially after the events which had
occurred in 1988.
58. The Special Rapporteur met with two
representatives of the Union Kayene League: President U Mah and Joint Secretary
U Mahn Tan Maung. The representatives stated that the group, which was composed
by Pwo Kayin and Sgaw Kayin, was the only Karen group recognized by SLORC. It
had been organized in 1988 and had five delegates who attended freely the
meetings held in the context of the National Convention and a membership of
approximately 50,000. The representatives of the League said that work at the
National Convention was not going as fast as they would like, but that was
better than rushing things since there was a unique chance to achieve better
understanding among all the groups composing the country.
59. They informed the Special Rapporteur that
most of the Karens in Myanmar were poor peasants living in villages. The great
majority were Buddhists (85 per cent) and some were Christians (15 per cent).
The League had no information about and no connection with the insurgents
living at the frontier between Karen State and Thailand.
60. Regarding the economic situation, they
informed the Special Rapporteur that the market had changed from a socialist
system in which prices had been fixed by the State, to a free-market one.
Therefore, prices were going up and people were complaining. They hoped that
with free competition there would be some regulation and prices would drop.
Otherwise, they agreed that the Government was working hard to improve the
situation by launching all sorts of development programmes.
7. Visit to Mandalay jail
61. On the afternoon of 12 November 1994, the
Special Rapporteur visited the newly built central jail in Mandalay. He was
taken to the central tower of the prison, from where he had a view of land on
which new vegetables and flowers had been planted, the pagoda of the prison,
the infirmary and the cells.
62. The Special Rapporteur was not allowed to
see any of the detainees, nor was he allowed to see the cells. At the time of
the prison visit, the prison authorities stated that they were unable to comply
with the Special Rapporteur's request to see the detainees and the cells
because they required authorization from the higher authorities.
63. The Prison Warden informed the Special
Rapporteur that there were 4,715 prison inmates of whom 3,866 were males and
849 were females. The prison has a capacity of 3,000.
64. The severity of the sentences varied from
the death sentence to one-day sentences. Sixty-one prisoners (of whom three
were women) were serving 20-year sentences and nine prisoners (of whom one was
a woman) had been sentenced to the death penalty, but those sentences had been
commuted to life imprisonment by a governmental order of November 1992.
65. The Prison Warden told the Special
Rapporteur that one or two inmates were kept per cell of approximately 8 square
metres having an opening high on one wall. Bamboo mats and potable water were
available in the cells. Each inmate was provided with food three times a day
and had access to information through books. They were also contributing to
several kinds of labour, such as the renovation work of the Mandalay Palace
moat.
66. The families had the right to visit the
inmates twice a month, in addition to special permissions granted to their
lawyers. They were also provided with medical assistance in the prison
dispensary, which had 50 beds and where 3 doctors and 15 nurses were working
full-time.
67. The Prison Warden informed the Special
Rapporteur that a complaints procedure had been established at the prison. One
day a week, an officer visited all the cells and recorded the complaints of the
inmates. Most of those complaints were not founded and concerned relations
between inmates.
9. Visit to Insein Prison
68. On the afternoon of 14 November 1994, the
Special Rapporteur visited Insein Prison. The Prison Warden informed the
Special Rapporteur that there were 4,696 prison inmates, of whom 868 were
women. The prison had a capacity of 5,000. No prisoners were awaiting death
because all death sentences had been commuted by an order of November 1992.
69. The Special Rapporteur was given an
extensive tour of the grounds, in which vegetables and flowers had been newly
planted. He was shown the hospital building, the tower and a kitchen with pots
of freshly prepared food. The facilities had been freshly painted.
70. The Special Rapporteur was not allowed to
see all the detainees he had requested to meet. These prisoners were detained
under section 5 (e) of the 1950 Emergency Provisions Act ("causes or
intends to spread false news, knowing beforehand that it is untrue"),
under section 5 of the 1923 Official Secrets Act (possession or control of
secret official information) or under section 17/1 of the 1908 Unlawful
Associations Act (membership or contact with an illegal organization). Several
of them belonged to political parties and in this connection the Special
Rapporteur wished particularly to see the five NLD opposition activists
arrested between July and October 1994, including Khin Zaw Win who was arrested
in July 1994.
71. After repeated requests made orally from
the first day of his stay in Myanmar concerning detainees he wished to see, and
having asked for free access to those and other detainees at Insein Prison, the
Special Rapporteur was allowed to meet only three detained political leaders,
two of whom he had seen during his last visit in November 1993. In addition to
U Tin U, who had a distinguished military career and had been in command of the
military and was subsequently Minister of Defence, and Dr. Aung Khin Sint, an
NLD member elected in the 1990 elections and a delegate to the National
Convention, the Special Rapporteur met a student activist, Myin Ko Naing. The
meetings took place in the presence of the Prison Warden; several of the prison
guards recorded the interviews and a group of photographers were also present.
72. U Tin U greeted the Special Rapporteur
and told him of his appreciation at meeting him again. He was in good health
and seemed to speak freely without any fear. He told the Special Rapporteur
that inmates had been busy for three days prior to his arrival, painting and
cleaning the prison premises.
73. The meeting took place in front of a
small shack where he was being kept in isolation. The shack was a separate
one-story house with an entrance, sleeping section and a toilet and kitchen
facilities behind. At the outset, U Tin U proclaimed that he was a
"political prisoner" despite the claim of the authorities that he was
an "ordinary criminal". He stated that he had suffered five months of
effective house arrest before being brought before a martial court on numerous
charges. He said that he had been charged, in particular, with: (a) inciting
the entire population for democracy and human rights; (b) corresponding with
parliamentarians of the European Community, Japan and the United States of
America; and (c) meeting with military personnel and others in groups.
Government witnesses had presented testimony at his trial, but he had been
denied the right to cross-examine them. After hearing the witnesses, the court
had proceeded to sentence him to three years' imprisonment; he assumes that it
was preconceived. He had already served three years in prison and had, in fact,
already served another year. Instead of being released, he was now serving an
additional seven years to which he was sentenced by a second military court on
exactly the same charges. He pleaded res judicata, but the judge did not seem
to understand what he was saying, and found him guilty again and sentenced him
to a second (more severe) term of imprisonment to be served consecutively to
the first. U Tin U declared: "I love the army, but I love the people more
than the army". He stated that after the 1990 elections many people had
been detained for a long time without trial as "ordinary criminals".
He had sought their release and remedies. So, he had come to this fate. U Tin U
indicated that his treatment was good (he appeared to be physically and
mentally healthy). The doctor took good care of him although a shortage of medicines
was a problem. His wife came to see him every two weeks. He had access to all
the religious books and the New Light of Myanmar, but he received no other
information and had no other entertainment.
74. Following the meeting with U Tin U, the
Special Rapporteur was taken to another building, adjacent to the house where U
Tin U was kept, with a few empty cells; among these cells one was occupied by
Dr. Aung Khin Sint.
75. The Special Rapporteur could not enter
into the cell where Dr. Aung Khin Sint was kept but he was able to speak with
Dr. Aung Khin Sint through the locked grill of the cell door. The Prison Warden
and several guards recording the interview were also present, as well as
photographers. The interview was very short and the inmate seemed nervous but
in good health.
76. Contrary to last year, Dr. Aung Khin Sint
addressed the Special Rapporteur in the Burmese and English languages. Dr. Aung
Khin Sint had done his medical training in England. He had been sentenced to
20-year imprisonment after being tried in a special court, i.e. not an ordinary
court. He had not hired a lawyer. That was his own choice because he wanted to
defend himself on his own. After receiving his sentence in 1993, he indicated
to the Special Rapporteur during his last visit in November 1993 his intention
to appeal through the proper channels. During the Special Rapporteur's latest
visit, Dr. Aung Khin Sint informed him that he had not appealed but did not
give any specific reason why he had changed his mind. He also told the Special
Rapporteur that he was being treated well in the prison and had even received a
new tooth in his first week there. In concluding, he repeated that he would
like to serve a democratic government from the bottom of his heart.
77. Following the meeting with Dr. Aung Khin
Sint, the Special Rapporteur was taken to another building with a few empty
cells and one occupied by a young student activist, Myin Ko Naing. The Special
Rapporteur could not enter the cell where Myin Ko Naing was kept, but was able
to speak with him through the locked grill of the cell door. The Prison Warden
and several guards recording the interview were also present, as well as
photographers. The interview was very short and the inmate seemed nervous and
thin, but in good health. He told the Special Rapporteur that he had been
especially transferred to that cell for the meeting. When asked what he needed,
Myin Ko Naing told the Special Rapporteur that he was bored, with nothing to
do, and that he wished to read religious books.
78. Following the meetings with the political
leaders in prison, the Special Rapporteur returned to the reception room where
he sought some clarifications regarding the registration of the three inmates
he had met. The Prison Warden gave all the information requested, including the
bases for their imprisonment, dates, etc. The Special Rapporteur made a special
request to the Prison Warden to allow Myin Ko Naing to read religious books in
his cell and the Prison Warden promised the Special Rapporteur to take the
necessary steps for that purpose.
9. Visit to Mon State
79. On 9 November 1994, the Special
Rapporteur visited a construction site of the Ye-Dawei railway project in Mon
State, as arranged by the Government of Myanmar and the Vice-Commandant of South
Eastern Command, Colonel Mya Nyein. The Special Rapporteur, accompanied by
Director-General U Aye Lwin and the Managing Director of Myanmar Railways, U
Thaung Lwin, arrived at Kalawtgyi village in Ye Township and met the people who
were working on the construction. The construction project of the Ye-Dawei
railway section was started in January 1993. The entire section of 100.08 miles
will pass through four stations and will include 66 bridges.
80. The Special Rapporteur was told by the
local authorities that over 55,000 persons from towns and villages around the
railway had already participated voluntarily in the construction project. The
local authorities instructed the headmen of the various villages to provide a
number of labourers and to assign duties among them. At the beginning of the
construction, villagers were used to cut down trees and clear bushes to make
way for the rail track. When the route was mostly cleared, villagers began
digging ditches, and taking out and piling up the earth to form the embankment
for the railway.
81. Workers have been given work by the piece
rather than by the day and a given piece of work must be completed in a set
period of time. The working hours are from 8 a.m. to 11 a.m. and from 1 p.m. to
4 p.m. Each household/family is normally required to contribute one labourer in
one round of duty and each round of duty normally lasts one to two weeks. The
authorities told the Special Rapporteur that the workers are each paid 30 kyats
for a piece of 1 cubic metre, which means a working day for one or two persons.
Wages are paid by the Government to the whole village at the end of its
contribution. The workers are not provided with food: they have to take their
own food or to pay an amount of 2 kyats per meal. The Special Rapporteur had
the opportunity to visit a dispensary built near the construction site to
assist workers who suffer minor sickness and require to rest from work. When
the sickness of the worker is serious, the authorities release the sick worker
from his duty and send him to an appropriate hospital.
10. Visit to Mandalay and Mengwe States
82. On 12 November 1994, the Special
Rapporteur met in Mandalay with the Commander of Central Command, Major-General
Kyaw Than, and visited the construction site of the Mandalay Palace moat which
is being dredged by Tatmadaw soldiers, civilians and prisoners from the Central
Jail in Mandalay.
83. Around 200 unchained prisoners were
involved in the building of the moat by piling and transporting rocks. They
seemed in good health and the local authorities informed the Special Rapporteur
about their working conditions. Generally, prisoners as well as soldiers work
eight hours a day on a voluntary basis. Once the defined part of the work is
accomplished, a wage is distributed among the prisoners who are involved in the
labour. Food is provided for free and they are entitled to three meals a day.
On the day of the Special Rapporteur's visit, well-wisher families were
donating lunch, which looked quite appropriate, to all the prisoners and
soldiers working at the moat construction site.
84. On 13 November 1994, the Special
Rapporteur travelled to Mengwe State to visit the newly completed
Pakokku-Myaing-Myosoe section of the Pakokku-Gangaw-Kalay railway. The Minister
for Rail Transportation, U Win Sein, and the Commander of North-West Command
Major-General Hla Myint Swe, outlined the benefits that would accrue to the
regions surrounding the railway. The Minister attributed the successful
completion of the new railway section to "the goodwill and support of the
Government and the noble-mindedness and conscientiousness of the local
population who contributed voluntary labour for the future of their own
region". The ground survey for the construction of the
Pakokku-Myaing-Myosoe section of the railway was started on 11 June 1993. After
completion of the earth bed on 20 December 1993, the rails were laid, starting
on 12 February 1994. The entire section, 34.62 miles long, was completed on 17
October 1994.
85. During the Special Rapporteur's trip, he
had the opportunity to speak briefly with people among the large crowds
assembling around the railway stations at which the train stopped. Apparently,
the local population seemed to enjoy the opening ceremony and was happy to
benefit from the new facilities.
11. Visits to the Myanmar Red Cross Society
and the Myanmar Maternal and Child Welfare Association
86. On the morning of 8 November 1994, the
Special Rapporteur met with the representatives of the Myanmar Maternal and
Child Welfare Association at their headquarters and was given an overview of
their recent activities. Regarding the problem of AIDS, Dr. Tin Tin Hmun,
Chairman of the Association, informed the Special Rapporteur that the
Association was currently implementing a programme of education especially
addressed to mothers, in order to inform them how to safeguard themselves and
their children from infection. For this purpose training courses were being
organized for volunteers (students, doctors, young people) who would then
travel around the country to reach the population at the grass-roots level.
87. Concerned about the high rate of child
mortality, malnutrition and illiteracy, the Association was continuing to
develop, with the collaboration of international organizations such as UNICEF
and NGOs, activities and services in those areas for mothers, young women and
children throughout the country.
88. On the afternoon of 15 November 1994, the
Special Rapporteur visited the offices of the Myanmar Red Cross Society (MRCS).
The discussion went directly to the problem of AIDS. In response to an inquiry
from the Special Rapporteur, the President of MRCS, Dr. Tin U explained that of
7,500 persons tested for HIV infection in Myanmar an estimated 4,000 had tested
positive. Persons who had already contracted AIDS were estimated to number
around 300; most of them had contracted tuberculosis and were being kept in
quarantine in a section of Yangon Hospital.
89. The first cause of HIV infection is drug
injection. Seventy per cent of AIDS cases are among injecting drug users. The
rapid and extensive spread of infection among new intravenous drug users is
linked to high levels of sharing syringes and the lack of effective
sterilization between injections. Drugs are injected with a variety of
self-made equipment that is often in poor condition and impossible to
sterilize. The second cause is transmission through sexual activity.
90. With respect to the specific problem of
the Myanmar women who had returned from Thailand diagnosed as being HIV
positive the Special Rapporteur was informed that the MRCS was working closely
with the Myanmar Council of Churches and a Swiss NGO, the "Association
François Xavier Bagnoud", for their rehabilitation. The girls who had
returned from Thailand were living together and were being
"rehabilitated" by being taught cooking and sewing and other skills
in the facility operated under the Department of Social Welfare. Most of the
returnees had tested HIV positive. The reason for the high ratio of HIV
positive cases among these women, it was explained, was that they were sent
back to Myanmar because they were suspected of having been infected.
91. On the subject of the Geneva Conventions,
MRCS was cooperating with ICRC in a dissemination project about the ideals and
principles of the Red Cross Movement, as well as the basic principles of
international humanitarian law. Three three-day courses and seven one-day
sessions had been held in the framework of this programme in the Yangon area,
and training sessions for Red Cross volunteers had taken place in Myaungmya and
Prome as well. To date, according to MRCS, 60 per cent of the programme
launched with ICRC in 1993 had been achieved.
13. Visits to university campuses
92. On the morning of 16 November 1994, the
Special Rapporteur briefly visited the campus of Yangon University. In contrast
to his previous visit in November 1993, the University was open, life on the
campus appeared normal and students were casually walking about. During the
Special Rapporteur's brief visit, he met with professors from the Department of
Law. Professor Tin Aung Aye, Professor of Labour and Constitutional Law, who is
also a member of the working committee of the drafting team at the National
Convention, discussed topics related to the National Convention, citizenship
and human rights. When asked by the Special Rapporteur if the new constitution
would contain a chapter relating to human rights, he pointed out that although
human rights were important, they should be linked to duties.
93. On the morning of 16 November 1994, the
Special Rapporteur also visited briefly Dagon University, which had newly
opened buildings in Dagon township. It is a large campus with vast classrooms
and auditoriums. The atmosphere on the campus seemed normal. The Special Rapporteur
had the opportunity to meet with enthusiastic young students who informed him
about their interests in several topics other than politics.
C. Visits to camps in Thailand
94. Following his visit to Myanmar, the
Special Rapporteur travelled to the frontier with Thailand in order to meet
persons from Myanmar living in camps on the Thai side of the border. The visit
to Thailand was conducted between 16 and 20 November 1994. The two camps
visited were within driving distance of the Thai city of Mae Sot. It is
believed that approximately 60,000 persons who have fled Myanmar are living in
similar camps in the border area. During this visit, the Special Rapporteur met
a total of 31 newly arrived persons from Myanmar, mostly from Karen State. All
the interviewees were able to provide recent information on the situation in
Myanmar, especially in the border area. Most of them were in poor physical and
psychological condition. The information and views obtained in the course of
the visits will be reflected below under relevant subject headings.
II. ALLEGATIONS
A. Extrajudicial, summary or arbitrary
execution
95. Numerous communications from
non-governmental sources continue to be received by the Special Rapporteur
reporting extrajudicial, summary or arbitrary killings of civilians by Myanmar
military forces under a variety of circumstances.
96. In the regions of the country with
predominantly non-Burman populations and where insurgencies have been taking
place, many of the alleged killings are summary executions of civilians who are
accused of either being insurgents or collaborating with insurgents. For
example, in March 1994, members of the Myanmar military's Western Military
Command patrolling the Naf River (Rakhine State) came across some Muslims
fishing from a small boat. The soldiers reportedly tried to extort money from
the fishermen and, when unsuccessful, tied them up with rope and brought them
to Balu Khali village in Maungdaw Township. Eight of the fishermen were
reportedly interrogated and tortured over five days; the soldiers charged them
with carrying out clandestine operations rather than simply fishing. On 31
March 1994, the fishermen were reportedly executed.
97. Many of the reports from non-governmental
sources have described occasions on which soldiers of the Myanmar army have
opened fire with light arms against civilians without any evident provocation.
Such situations have frequently been reported in the context of attempts by the
army to arrest and detain civilians for the purposes of forced portering and
other labour; as villagers attempt to avoid being arrested or to escape the
approaching troops, soldiers are often reported to open fire. For example, on
11 September 1994, Myanmar Army forces from Division No. 33, Battalion No. 27,
reportedly entered Kyaun Sein village. When the villagers ran away because they
were afraid to be taken as porters, the Tatmadaw reportedly opened fire on
them. One villager was hit by a bullet and died the same evening, while three
other men were captured by the soldiers and executed on 12 September 1994.
98. In addition to the reports received by
the Special Rapporteur alleging summary or arbitrary executions, he also
interviewed persons, during his visit to the refugee camps in Thailand, who
claim to be witnesses to such human rights violations.
99. The Special Rapporteur has received
testimonies alleging governmental responsibility for a pattern of deaths in
custody. In the cases received by the Special Rapporteur of alleged violations
of the right to life of persons held in detention in which charges were filed,
the detentions were primarily carried out under SLORC orders, in application of
the 1950 Emergency Provisions Act, particularly section 5 (J), and article 17
of the 1908 Unlawful Association Act. During his visit to Myanmar, the Special
Rapporteur requested the Government of Myanmar to provide information
concerning the fate of 25 political leaders and elected representatives,
students and monks who had allegedly died while in custody. Prior to his
departure from Myanmar, the Government provided the Special Rapporteur with its
response to his inquiries; the response of the Government of Myanmar is
reproduced in annex I to this report. Concerning the 25 cases raised by the
Special Rapporteur, this response may be summarized as follows: the Government
denied detention in 7 cases; 4 persons were said to have been released; 3
persons were said to be still serving their terms; 10 persons were said to have
been given medical treatment upon falling ill, but to have succumbed to disease
nevertheless; and 1 person was said to have committed suicide.
100. Other cases of reported summary or
arbitrary executions were described in paragraphs 53 to 55 of the interim
report of the Special Rapporteur to the General Assembly at its forty-ninth
session (A/49/651 of 8 November 1994). These cases included allegations of:
severe torture, causing the death of the victims; the killing of civilians for
having disobeyed orders from the Tatmadaw to relocate their homes, to supply
goods or provide labour for little or no compensation; arbitrary
"revenge" killings of persons from villages near to the locations of
attacks carried out by insurgent forces against the Tatmadaw. Collective and
arbitrary punishments are often said to include summary executions of civilians
present in the area.
101. In response to the request of the
Special Rapporteur for information on any investigations into these allegations
undertaken by the Government, the Government of Myanmar replied, in a note
verbale dated 4 November 1994, as follows:
"No instances of extrajudicial, summary
or arbitrary execution can be permitted in the Union of Myanmar and no
provision is made in the law for such."
102. The Special Rapporteur is aware that
sometimes reports of arbitrary killings tend to be exaggerated or distorted,
that there are cases of good treatment of villagers and captured insurgents by
the Tatmadaw soldiers, that there is evidence that the Government is trying to
discipline those soldiers who have committed serious human rights violations,
that instances of such violations appear to be decreasing and that the
insurgents also commit serious violations of human rights from time to time.
However, the Special Rapporteur cannot deny, in view of so many detailed and
seemingly reliable reports, that violations appear to be committed consistently
and on a wide scale by the soldiers of the Myanmar Army against innocent
villagers (particularly those belonging to ethnic minorities) in the form of
summary or extrajudicial executions and arbitrary killings which occur in the
contexts of forced labour, rape, forced relocation and confiscation of
property.
103. In relation to specific cases, the
Special Rapporteur draws attention to the report of the Special Rapporteur on
extrajudicial, summary or arbitrary executions (E/CN.4/1995/61, paras.
227-230). In this connection, the Special Rapporteur is aware that the
Government of Myanmar has recently responded in detail to the allegations
transmitted to it by the Special Rapporteur on extrajudicial, summary or
arbitrary executions.
B. Arbitrary arrest and detention
104. Although some political prisoners have been released during the last two
years from centres of detention in Myanmar, reports from various sources
describe how an unknown number of civilians continue to be arrested for
criticizing SLORC, the Tatmadaw and the process being undertaken in the
National Convention of drafting a new constitution aimed at facilitating the
transfer of power to a civilian government. Other persons reportedly arrested
in large numbers are suspected insurgents (or sympathizers therewith) who
remain detained in prisons in country areas, especially in the regions with
predominantly non-Burman populations.
105. The Nobel Prize winner, Daw Aung San Suu
Kyi, is still being held under prolonged house detention without trial; on 20
July 1994, she had completed five years in detention. Seeking her release and
return to freedom in Myanmar, including respect for all of her civil and
political rights under international law, parliamentarians, non-governmental
organizations and individuals throughout the world have sent thousands of
petitions to the United Nations in the last few months.
106. In a letter dated 5 October 1994, the
Special Rapporteur requested the Government of Myanmar to provide specific
reasons, including reference to specific legal authority, for keeping Daw Aung
San Suu Kyi under house arrest after 20 July 1994, and to indicate precisely
when the Government intends to release her.
107. In a note verbale dated 4 November 1994,
the Government of Myanmar provided the Special Rapporteur with the following
detailed responses to the above inquiries:
"1. (a) ... she [Daw Aung San Suu Kyi]
had been influenced by anti-government, opportunistic politicians and insurgent
groups in their attempt to seize political power for their own end, at a time
when political vacuum developed by the people's genuine desire to forsake the
socialist economic system and their yearning for the return to a multi-party
democratic system;
"(b) For her own good and for the good
of the country she had to be restrained in order to prevent her from promoting
the cause of these unsavoury political elements who found their way and got
themselves into positions of influence around her to create disunity among the
only unified establishment left in this country, the Tatmadaw, which was
endeavouring to stabilize the situation created by the political vacuum;
"(c) Despite repeated caution on the
part of the authorities, she made seditious speeches inciting the people to
acts of violence and to cause division within the armed forces and division
between the armed forces and the people.
"2. The specific legal authority for
restraining Daw Aung San Suu Kyi is the 1975 Law to Safeguard the State Against
the Dangers of Those Desiring to Cause Subversive Acts. Under this law, if
there are reasons to believe that any citizen has done or is doing or is about
to do any act which infringes the sovereignty and security of the State or
public peace and tranquillity, the Council of Ministers is empowered to pass an
order, as may be necessary, restricting any fundamental right of such person.
"3. Also, under Section 10 (b) and
Section 14 of this 1975 Law to Safeguard the State Against the Dangers of Those
Desiring to Cause Subversive Acts, there is the legal basis for the restraint
of Daw Aung San Suu Kyi after 20 July 1994. Under this Law the Council of
Ministers may pass an order as may be necessary restricting any fundamental
right of a citizen if there are reasons to believe that he has committed, or is
committing, or is about to commit, any act which infringes the sovereignty and
security of the State or public peace and tranquillity. To exercise such power
a Central Body, consisting of the Minister for Home Affairs as Chairman, and
the Minister for Defence and the Minister for Foreign Affairs as members has
been formed.
"4. The Central Body in passing
restriction orders for safeguarding the State against dangers has the following
powers:
(a) Arresting and detaining a person for a
period not exceeding 60 days at a time up to a total of 180 days;
(b) Restraining a person up to one year.
"5. If it becomes necessary to extend
the period of detention or restraint, the Central Body may be authorized by the
Council of Ministers to detain or restrain a person for a period not exceeding
one year at a time up to a total of five years.
"6. In accordance with Section (13) of
the Law, the Central Body shall obtain the prior sanction of the Council of
Ministers if it is necessary to continue the restraint of the person against
whom action is taken for a period longer than contained in Section 10 (b).
"7. In so doing, in accordance with
Section (14) of the Law, the Council of Ministers may, in granting prior
sanction to continue the detention and arrest or to continue to restrain,
permit a period not exceeding one year at a time up to a total of five years.
"8. Hence, the Central Body can restrain
a person for one year with its own mandate entrusted by Section 10 (b) of the
Law and, with prior sanction of the Council of Ministers, can extend the period
of restraint for five years in accordance with Section (14) of the Law.
"9. In view of the foregoing, there is
the legal basis for restraining Daw Aung San Suu Kyi after 20 July 1994 based
on Section 10 (b) and Section (14) of the 1975 Law to Safeguard the State
Against the Dangers of Those Desiring to Cause Subversive Acts."
108. In his letter dated 5 October 1994, the
Special Rapporteur also requested the Government of Myanmar to provide
information regarding: Khin Zaw Win; U Khin Maung Swe (aged 52 years, a
prominent dissident Member of Parliament-elect and member of the Central
Executive Committee of the National League for Democracy); U Sein Hla Oo (aged
58 years, a journalist and opposition politician); Dr. Htun Myat Aye (a
dentist); Daw San San Tin (a translator); Daw San San Nwe (a writer) and her
daughter.
109. n its note verbale dated 4 November
1994, the Government of Myanmar provided the Special Rapporteur with the
following general response to the above inquiries:
"In the Union of Myanmar, a person
cannot be arrested and detained if it is not in accordance with the law. It is
provided in Section 61 of the Code of Criminal Procedure that no police officer
shall detain in custody a person for a period exceeding 24 hours. Where it is
necessary to detain such an accused for more than 24 hours, special order of a
Magistrate has to be obtained under Section 167 of the Code of Criminal
Procedure. The arrested person has the right of defence and the right to have
legal defence counsel. Moreover, the arrested or detained person has the right
to apply freely for bail to the Magistrate concerned and the Court may grant
him bail according to the merits of the case."
110. The following are the detailed charges
against the persons mentioned in the summary of allegations received by the
Special Rapporteur in the note verbale of 4 November 1994 from the Government
of Myanmar:
Name, Charge(s)
Khin Zaw Win
"(a) Under Section 17 (a) of the Unlawful Associations Act (1908) for
contacting some members of the terrorist groups and providing funds for them.
He was sentenced on 6 October 1994 to three years' imprisonment after due
process of law;
"(b) Under Section 5 (e) of the
Emergency Provisions Act for arranging to write and distribute seditious
literature. He was sentenced on 6 October 1994 to seven years' imprisonment
after due process of law;
"(c) Under Section 9 (2)/24 (1) of the
Foreign Exchange Regulations Act (1947) for trying to smuggle out precious
stones and foreign currency. He was sentenced on 6 October 1994 to three years'
imprisonment after due process of law.
"... Moreover, Yangon Divisional
(Northern District) Court found Dr. Khin Zaw Win guilty of an illegal act under
Section 5 (2)/(4) of the Government Official Secret Act (1923) for smuggling
out confidential data from the Ministry of Energy of the Government of the
Union of Myanmar. Accordingly, he is sentenced on 6 October 1994 to two years'
imprisonment with labour.
" Daw San San Nwe
"... guilty of an illegal act and
criminal offence under Section 5 (e) of the Emergency Provisions Act and
Section 109 of the Code of Criminal Procedure for [her] collaboration with Dr.
Khin Zaw Win in writing and distributing false news that could jeopardize the
security of the State. Accordingly, they were sentenced on 6 October 1994 to
seven years' imprisonment.
"Moreover, Daw San San Nwe was sentenced
to three years' imprisonment under Section 17 (1) of the Unlawful Associations
Act (1908) on 6 October 1994 by the same Court for contacting some members of
the terrorist groups and providing funds for them."
U Khin Maung Swe
"... guilty of an illegal act and
criminal offence under Section 5 (e) of the Emergency Provisions Act and
Section 109 of the Code of Criminal Procedure for [his] collaboration with Dr.
Khin Zaw Win in writing and distributing false news that could jeopardize the
security of the State. Accordingly, they were sentenced on 6 October 1994 to
seven years' imprisonment."
Dr. Htun Myat Aye
"... has not been detained. As he was
aware of the movements of Dr. Khin Zaw Win and his colleagues, he was
questioned and then released."
Daw San San Tin
"When legal action was taken against Dr.
Khin Zaw Win and his colleagues, [she] was not included."
111. The Government of Myanmar also responded
that U Khin Maung Swe, U Sein Hla Oo, Daw San San Nwe and her daughter
"had the right of defence and the right to have legal defence counsel for
their cases".
112. The Special Rapporteur continues to
receive reports indicating that several persons who have reportedly been
sentenced may not benefit from the minimum standards of judicial guarantees.
Numerous persons are reportedly subjected to lengthy prison terms which
constitute disproportional sentences in relation to the offences for which they
have been found guilty. Information from reliable sources indicates that there
are general problems in the matter of fair trial especially in the sense of
free access to defence lawyers, sufficiency of time for careful examination of
the cases, and proportionality between offences committed and punishments
applied. For example, on 11 January 1994, the Special Court of Yangon West
District sentenced to death four persons after they had been found guilty of
murdering a student: the judgements were rendered within a few days of the
arrest of those accused.
113. With respect to other specific cases,
the Special Rapporteur draws attention to the report of the Working Group on
Arbitrary Detention (E/CN.4/1995/31, paras. 7-8 and 13-14) and Decision No.
13/1994, adopted by the Working Group on 28 September 1994.
C. Torture and other cruel, inhuman or
degrading treatment
114. Numerous allegations, often in
considerable detail, have been received from various sources alleging that
members of the Myanmar military, intelligence and security services and police
continue to torture persons in detention or otherwise subject them to cruel,
inhuman or degrading treatment and punishment. Such treatment seems to be
routinely employed during the interrogation of persons who have been
arbitrarily arrested or held on suspicion of real or perceived anti-government
activities. Allegations include subjection to severe beatings, shackling, near
suffocation, burning, stabbing, rubbing of salt and chemicals in open wounds
and psychological torture, including threats of death. Other reported methods
of torture include sexual assault and rape, mostly among women serving as
porters.
115. The Special Rapporteur received
testimony from reliable sources, corroborated by photographs, indicating that
detainees are very often chained and are forced to sleep on cold cement, and
that many of them suffer from sickness and serious diseases. The same reliable
testimony and photographic evidence indicate that cells are often overcrowded
and that prisoners are provided with inadequate hygiene or medical care.
116. In addition to several reports received
by the Special Rapporteur alleging widespread torture and other cruel, inhuman
and degrading treatment in Myanmar, he has also interviewed persons claiming to
be victims or to have witnessed such human rights violations.
117. With respect to specific cases, the
Special Rapporteur draws attention to the report of the Special Rapporteur on
Torture (E/CN.4/1995/34, paras. 492-500). In this connection, the Special
Rapporteur is aware that the Government of Myanmar has responded to the
allegations transmitted by the Special Rapporteur on Torture.
D. Freedom of movement
118. During his visit to Myanmar, the Special
Rapporteur was pleased to note that several members of intergovernmental and
international non-governmental organizations are permitted to travel through
the country to implement their programmes directly with the concerned
population. Nevertheless, reliable sources informed the Special Rapporteur that
forced relocation and internal displacement of persons occurs on a wide scale.
People continue to be forcibly relocated, without compensation, to new towns
and villages. For example, on 9 July 1994, some 80 persons are said to have
been forced to leave Kyein-ta-li village in southern Rakhine State; they were
forced to leave on very short notice and were not allowed to bring any property
with them. In another example, about 1,500 persons were said to have been
forced to leave their homes in Nga-let village in Min-pya township in northern
Rakhine State on 13 July 1994; these persons are said to have been rounded up
by the military and put on seven boats. In July 1994, in Rakhine State, a
Muslim community composed of 250 households was allegedly forced to move from
their native village of Ngla, in Minbya township, to Mang Daw township. In a
third example, another Muslim community composed of 360 households was
reportedly forced to move from their village of Kawalong, Myauk U township, to
be relocated in Mang Daw on 4 October 1994.
119. Allegations have also been made that 30
Muslim heads of family were rounded up from villages around Pyapon township in
the delta area of the Irrawaddy division and sent to Yangon, where they were
detained at the police lock-up in Barr Street. The detained persons are all
said to be holders of national identity cards and to be owners of the land that
they have worked on for generations. Reports claim that these persons now face
deportation or forcible relocation, without compensation, to Rakhine State.
120. Forced relocations and evictions have
also been reported by reliable sources in connection with major development
projects. According to several non-governmental sources, Myanmar authorities
are forcing Muslims to dismantle their cemeteries and religious buildings at
six months' notice, to make room for more profitable construction related to tourism.
Such acts are claimed to have taken place in, for example, Yangon, Mandalay and
Yan-bye township in southern Rakhine State. In Kyauk-ni-maw village tract,
Yan-bye township, the local authorities have reportedly ordered six mosques to
be dismantled. The reason said to have been given by the authorities for the
order is that the trustees of the mosques could not produce any documentation
concerning the legality of the buildings. The mosques are several hundred years
old.
E. Freedom of expression
121. During his visit to Myanmar the Special
Rapporteur was pleased to note that several members of the foreign press,
including members of foreign radio and television companies, were allowed entry
into Myanmar. Foreign newspapers were also available in some book stores in
Yangon, and more than 80 Myanmar magazines, of social and cultural interest,
are available to the public. Nevertheless, the Special Rapporteur was also
informed that, within Myanmar, the written press, radio and television continue
to be subject to governmental censorship, and that the distribution of written
material was also subject to governmental restrictions and control. For
example, all magazines must be read by a governmental body before their
distribution.
122. According to an article entitled
"Action taken against destructive elements" which was published in
the 23 August 1994 edition of the State-controlled English-language newspaper
The New Light of Myanmar (printed on p. 12), the receiving or passing of
information or written material from and to foreigners appears to be illegal.
By prosecuting persons for such exchanges of information, the Government of
Myanmar effectively intimidates its citizens and discourages them from
exercising their fundamental rights to freedom of expression.
123. The Special Rapporteur is especially
concerned about the fact that during his visit to Myanmar he was unable to meet
citizens who wished to contact him, because of their fear of subsequent
repercussions. In this connection, the Special Rapporteur notes that one of the
charges against Khin Zaw Win, who was arrested in July 1994, was that of having
made arrangements to send fabricated news on Myanmar to the Special Rapporteur
during his visit to the country in 1992. This allegation was published on 23
August 1994 in the same article of The New Light of Myanmar referred to above,
as follows:
"Dr. Khin Zaw Win and group met those
who have opposite views on government and the Tatmadaw and made arrangements
for sending fabricated news on Myanmar to Professor Yozo Yokota, representative
of the United Nations Commission on Human Rights during his visit in December
1992."
The Special Rapporteur was informed during
his visit to Myanmar that this particular charge was not considered as a basis
for judgment by the court, but the fact that it was widely reported, including
by the government newspaper, would have a strong psychological effect on people
and cause them to be extremely reticent about contacting him.
F. Labour rights
124. The Special Rapporteur has been informed
that workers in Myanmar do not enjoy basic labour rights including, in
particular, freedom of association and the right to organize. There is hardly
any trade union movement, and workers and trade unionists who criticize the
Government would risk interrogation and arrest.
125. The Special Rapporteur received many
complaints from several reliable sources that men, women and children from the
age of 14 years are allegedly used for forced labour for the construction of
railways, roads and bridges. Persons with past records are randomly rounded up
by local police or the military in resettlement areas, and in downtown Yangon,
along Insein Road and in the small coffee houses. In the countryside, village
headmen are responsible for filling forced labour and porter quotas or
providing large sums of money to the military instead.
126. The Special Rapporteur received
testimonies describing minutely the duties of porters. Porters are required to
carry heavy loads of ammunition, food and other supplies between army camps,
generally over rugged mountains which are inaccessible by vehicle. They must
often construct the camps for the military upon arrival. They are not paid for
their work and are allowed only a minimum of food and rest.
127. The Special Rapporteur takes note of the
fact that the matter has been raised before appropriate bodies of the
International Labour Organisation (ILO). On 7 November 1994, ILO issued
document GB.261/13/7 entitled "Report of the Committee set up to consider
the representation made by the International Confederation of Free Trade Unions
under article 24 of the ILO Constitution alleging non-observance by Myanmar of
the Forced Labour Convention, 1930 (No. 29)". The Committee has concluded
that "the exaction of labour and services, in particular porterage
service, under the Village Act and the Towns Act is contrary to the Forced
Labour Convention, 1930 (No. 29), ratified by the Government of Myanmar in
1955".
G. Rights of the child
128. The Special Rapporteur is pleased to
note that the Government of Myanmar formally withdrew the reservations made by
Myanmar upon accession to the Convention on the Rights of the Child in July
1991 with respect to article 15 (regarding freedom of association) and article
37 (regarding the prohibition of torture and other cruel, inhuman or degrading
treatment in regard, inter alia, to the treatment of children during
interrogation). However, the Special Rapporteur is concerned that there is some
evidence of children being forced to serve in the army as soldiers or as
porters. This practice, which is reported to remain widespread, would involve a
variety of human rights violations, including forced labour, cruel and
degrading treatment (if not also torture) and threats to life.
129. Regarding allegations of violations of
children's rights, the Special Rapporteur interviewed several witnesses during
his visits to the refugee camps in Thailand. He met children of 16 and 17 years
of age who claimed that they had been forced to serve in the Myanmar Army two
years earlier. Such military service of children is contrary to article 38,
paragraphs 2 and 3, of the Convention on the Rights of the Child, to which
Myanmar is a party.
H. Treatment of the Muslim population in
Rakhine State
130. In early 1992, there was a mass influx
of some 250,000 Muslim refugees into Bangladesh from Rakhine State in Myanmar.
To address this problem, a joint statement was made by the Governments of
Myanmar and Bangladesh, on 23 April 1992, concerning the voluntary repatriation
of the refugees. Bangladesh requested the assistance of UNHCR to facilitate the
repatriation and memoranda of understanding between UNHCR and the Governments
of Bangladesh and Myanmar were signed on 12 May 1993 and 5 November 1993,
respectively.
131. In this connection, the Special
Rapporteur welcomed the willingness of the Government of Myanmar to cooperate
with UNHCR in order to ensure the voluntary and safe return of the Muslim
population who had fled to Bangladesh from Rakhine State. Between September
1992 and the end of September 1994, a total of 75,000 refugees had returned to
Myanmar and, according to UNHCR, it is anticipated that an additional 45,000
refugees will have returned by the end of 1994. If the aforementioned
anticipated return is accomplished as planned, the total number of returnees at
the end of 1994 would be 120,000, or approximately half the number who fled.
132. The Special Rapporteur also welcomed the
undertaking of the Government of Myanmar to allow the establishment in December
1993 in Rakhine State of a UNHCR permanent field office with international
staff. This presence may dissipate the fear of many of the Muslim population of
Rakhine State who remain in the camps on the Bangladeshi side of the border.
Many of them are said to be fearful of possible ill-treatment by the Myanmar
authorities upon return and, therefore, do not wish to come back without some
kind of international monitoring.
133. In Myanmar, five reception centres
(Taungpyo, Ngakhuya, Pyinphyu, Kanyinchaung and Magyichaung) and one transition
centre (in Buthidaung) have been established. Upon arrival at the reception
centres, returnee families are issued "family lists" serving as
temporary identity documentation until they are provided with a returnee
identity card.
134. UNHCR reports that, up to the present,
all returnees have been able to move back into their former homes. Most
returnees who had access to land prior to their departure for Bangladesh will
be able to regain their land after the next harvest. In cases where the
returnees are unable to claim their land back, the authorities have committed
themselves to finding alternative solutions at the location of the returnees'
former residences.
135. UNHCR is playing a key role in helping
create conditions in Rakhine State conducive to the return of the refugees and
to monitor their wellbeing. The Special Rapporteur is informed that the
returnees are free to travel and will be entitled to the same rights as other
residents of Myanmar. The governmental authorities are also obliged to inform
UNHCR of cases of arrest or detention of returnees and to allow UNHCR officers
access to any detained returnee.
I. The National Convention
136. On 9 January 1993, the Government
convened a national convention to lay down the basic principles for the
elaboration of a new and enduring constitution. Of the 702 delegates from 8
categories of people, 49 are selected by the 10 political parties remaining
after the 1990 elections, 106 are elected representatives and the remainder of
the delegates from the other 6 categories were chosen by SLORC. Before any real
discussion could take place at the National Convention, a broad framework of
basic objectives was provided by the Government: (a) non-disintegration of the
Union; (b) non-disintegration of national solidarity; (c) consolidation and
perpetuity of sovereignty; (d) emergence of a genuine multiparty democratic
system; (e) development of eternal principles of justice, liberty and equality
in the State; and (f) participation of the Tatmadaw in a leadership role in the
national politics of the future.
137. The Special Rapporteur has been informed
that each of the eight groups represented were to have a panel of five chairmen
who would lead the discussions and that, in the political parties group, only
one chairman was from NLD the party that won a majority in the 1990 elections.
In the elected representatives group, where 89 of the remaining 106 delegates
were from NLD. No NLD representatives were selected as chairmen.
138. During his visit to the National
Convention, the Special Rapporteur met with several delegates. He was informed
that all the delegates to the National Convention are required to stay in the
Convention compound. In the same dormitory, five delegates live together. There
is one sergeant clerk in each dormitory serving the delegates. It is reported
that these sergeant clerks may also observe the activities of the delegates.
139. Delegates are not totally free to meet
with other delegates inside the compound. They are not entitled to leave the
compound without authorization. When they leave the compound, delegates are not
allowed to take out any written or printed materials. It was also reported to
the Special Rapporteur that when the delegates return to their States to see
their families they are sometimes harassed by the local authorities. The
Special Rapporteur is concerned that such an atmosphere does not permit the
delegates to be in touch with the populations they represent, or enable them to
take into account their grievances, wishes and points of view and, thus, to
represent them meaningfully during the debates which are taking place in the
National Convention.
140. The Special Rapporteur was told that the
delegates enjoy the freedoms of expression and discussion. However, they cannot
distribute discussion papers among themselves: all papers have to be
distributed to the chairmen of the groups. The chairmen scrutinize the contents
and, if the statements are found to be contradictory with the agreed
principles, the relevant parts are deleted. Only then will the papers be read
at the group meetings. When the proposed statements are to be read before the
plenary meeting, they have to be submitted again for scrutiny by the Work
Committee.
141. The reply of the Government in response
to a query by the Special Rapporteur with regard to progress made so far in the
National Convention on the drafting of a new constitution, and the anticipated
schedule for future meetings, is reproduced in the addendum to the interim
report of the Special Rapporteur to the General Assembly (A/49/594/Add.1, pp.
13 to 15 of the English version).
J. The movement towards reconciliation with
the insurgents
142. The Special Rapporteur has been informed
that the Government of Myanmar extended an official invitation to the armed
groups to return to the legal fold, to hold talks with the Government and to
join hands with the Government in the ongoing national endeavour for the
development of border areas and national races. During his meetings in Myanmar,
the Government of Myanmar provided the Special Rapporteur with a list of the 13
ethnic and other armed groups which "had returned to the legal fold",
i.e. have signed ceasefire agreements with the Government of Myanmar. The list
is reproduced in annex II to the present report.
143. In connection with the "return to
the legal fold" of various of the former insurgent groups, the Special
Rapporteur notes a list supplied to him by the Government of Myanmar which
names 77 persons who have been released from imprisonment subsequent to
receiving sentences for a variety of politically related offences, including
offences under section 17 (1) of the 1908 Unlawful Association Act. This list
is reproduced in annex III to the present report.
144. In response to the Government's invitation
to "return to the legal fold", it was reported in November 1994 that
the leader of the Karen National Union (KNU), the largest armed insurgent
group, was ready to discuss a ceasefire with the Government of Myanmar. It is
still too early to make any meaningful assessment of developments in this
respect. But, from the viewpoint of protection of human rights, such a move
towards true national reconciliation should be welcomed because, as stated
above, many cases of serious human rights violations are being committed in the
context of military operations. For example, Kachine State, where an insurgency
was previously taking place during which foreigners were prohibited to visit,
has become opened for journalists and tourists as a result of the return of the
Kachine Independence Organization (KIO) guerrilla group to the legal fold.
During a visit to Kachine State in November 1994, Lieutenant General Khin Nyunt
was quoted as saying that peace is now prevailing in Kachine State.
III. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
145. The visit of the Special Rapporteur to
the Union of Myanmar at the invitation of the Government was facilitated by the
efforts, cooperation and courtesy extended to him by the officials of the
Government, in particular Lieutenant General Khin Nyunt, Secretary One of
SLORC, and U Ohn Gyaw, Minister for Foreign Affairs. Most of the requests of
the Special Rapporteur to meet persons pertinent to his mandate were met,
including meetings with the Attorney-General, Chief Justice, Minister of
Information, some political leaders in detention and representatives of
political parties. However, the Special Rapporteur was disappointed that he was
not allowed to meet Daw Aung San Suu Kyi. He also regrets that the meetings
with the representatives of political parties were held at a place and in an
atmosphere not fully ensuring privacy. However, the Special Rapporteur commends
the Government for arranging quite efficiently his visits to Mon State,
Mandalay State and Mengwe State, Insein Prison, Mandalay Prison and other
places and facilities which he had requested to visit.
146. The Special Rapporteur generally
observed in Yangon and Mandalay that there were visible signs of relaxation of
tension in the life of the people. There were many consumer goods in market
places where many shoppers crowded. Streets and bridges have been constructed
or improved. There were many cars on the streets. Indeed, in the centre of
Yangon, traffic congestion and parking problems occurred at certain times of
the day. However, the Special Rapporteur was informed that this development and
construction is benefiting only a few persons. In fact, there were poor people
in the cities and, in particular, in the countryside; these persons did not
appear to be sharing in any new prosperity, and rather appeared to be suffering
from inflationary pressures on basic necessities such as rice and medicines.
147. The Special Rapporteur welcomes the
expanding cooperation between the Government of Myanmar and various United
Nations organs and with international humanitarian non-governmental
organizations.
148. The Special Rapporteur continues to be
concerned about the serious restrictions imposed upon people in the enjoyment
of civil and political rights. The people do not generally enjoy freedom of
thought, opinion, expression, publication and peaceful assembly and
association. They seem to be always fearful that anything they or their family
members say or do, particularly in the area of politics, could put them at risk
of arrest and interrogation by the police or military intelligence.
Consequently, most people with whom the Special Rapporteur spoke casually
avoided any conversation touching upon political subjects. Several people told
him that many persons wished to tell the Special Rapporteur their stories, but
were too afraid to come to see him.
149. The persons whose civil and political
rights are most severely restricted are the leaders of political parties,
particularly the NLD leaders, and delegates to the National Convention, again
particularly those from NLD. Because of both visible and invisible pressures,
they cannot assemble in a group, cannot freely discuss, and cannot publish or
distribute printed materials. In this situation it is difficult to assume that,
in the National Convention, open and free exchanges of views and opinions are
taking place in order to produce a truly democratic constitution.
150. The Special Rapporteur is pleased to
note that the Government of Myanmar has continued to release persons who have
been detained for political activities. He also welcomes the Government's
decision to allow persons other than members of her immediate family to visit
Daw Aung San Suu Kyi, as well as the beginning of a dialogue between her and
the Government. He would, however, express concern that there are still
hundreds of such persons detained in Myanmar, most notably Daw Aung San Suu
Kyi. He also regrets that, in the summer of 1994, five persons were
specifically arrested for engaging in political activities and were
subsequently sentenced to long prison terms.
151. Government representatives have
repeatedly explained to the Special Rapporteur that the Government is willing
to transfer power to a civilian government, but that, in order to do so, there
must be a strong constitution and that, in order to have a strong constitution,
it is doing its best to complete the work of the National Convention. However,
the Special Rapporteur cannot help but feel that, given the composition of the
delegates (only one out of seven delegates was elected in the 1990 elections),
the restrictions imposed upon the delegates (practically no freedom to
assemble, to print and distribute leaflets or to make statements freely) and
the general guidelines to be strictly followed (including the principle
regarding the leading role of the Tatmadaw), the National Convention does not
appear to constitute the necessary "steps towards the restoration of
democracy, fully respecting the will of the people as expressed in the
democratic elections held in 1990" (General Assembly resolution 47/144,
para. 4).
152. The Special Rapporteur welcomes the fact
that, subsequent to the signing on 5 November 1993 of the Memorandum of
Understanding between the Union of Myanmar and UNHCR to facilitate and
guarantee the voluntary and safe return of Myanmar residents from Bangladesh,
and the subsequent opening of a UNHCR field office in Rakhine State to allow
UNHCR international staff to monitor the repatriation of the refugees, tens of
thousands of refugees have been successfully repatriated.
153. The Special Rapporteur further welcomes
the undertaking of various training programmes for military officers and
soldiers with the cooperation of ICRC and the Myanmar Red Cross Society in the
area of international humanitarian law.
154. The Special Rapporteur is paying special
attention to the recent successes of the government initiative to invite the
armed insurgent groups to enter into talks with the Government and he notes, in
particular, some initially positive response from the Karen National Union. He
is hopeful that the process will move forward in the direction of achieving
true reconciliation and peace throughout the country.
B. Recommendations
155. In the light of the foregoing
conclusions, the Special Rapporteur submits the following recommendations for
the consideration of the Government of Myanmar:
(a) The Government of Myanmar should fulfil
in good faith the obligations it has assumed under articles 55 and 56 of the
Charter of the United Nations "to take joint and separate action in
cooperation with the Organization for the achievement of ... universal respect
for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language and religion". In this respect, the
Special Rapporteur notes that the Government of Myanmar is in an ideal position
to encourage the delegates of the National Convention to include various human
rights provisions in the new constitution using, as a reference, the provisions
of the Universal Declaration of Human Rights, a copy of which should be
circulated to each delegate in the Burmese language;
(b) The Government of Myanmar should consider
accession to: the International Covenants on Human Rights; the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
and the two Protocols additional to the Geneva Conventions of 1949;
(c) Myanmar law should be brought into line
with accepted international standards regarding protection of physical
integrity, including the right to life, protection against disappearance,
prohibition of torture and other cruel, inhuman or degrading treatment,
providing humane conditions for all persons under detention and insurance of
the minimum standards of judicial guarantees;
(d) The Government of Myanmar should take
steps to facilitate and guarantee enjoyment of the freedoms of opinion,
expression and association, in particular by decriminalizing the expression of
oppositional views, relinquishing government control over the media and
literary and artistic communities, and permitting the formation of
independently organized trade unions;
(e) All political leaders, including elected
political representatives, students, workers, peasants and others arrested or
detained under martial law after the 1988 and 1990 demonstrations or as a
result of the National Convention, should be tried by a properly constituted
and independent civilian court in an open and internationally accessible
judicial process. If found guilty in such judicial proceedings, they should be
given a just sentence; alternatively, they should be immediately released and
the Government refrain from all acts of intimidation, threats or reprisals
against them or their families. With respect to Daw Aung San Suu Kyi, the
Government should release her immediately and unconditionally;
(f) The Government of Myanmar should take the
necessary steps to bring the conduct of the military, including ordinary
soldiers and officers, into line with accepted international human rights and
humanitarian standards so that they do not arbitrarily kill, rape, confiscate
property, force persons into acts of labour or porterage, relocate them or
otherwise treat persons without respect to their dignity as human beings. When
the hiring of local villagers for porterage and other works may be required for
governmental purposes, it should be undertaken on a voluntary basis and
adequate wages should be paid. The nature of the work should be reasonable and
in accordance with established international labour standards. When the
relocation of villages is considered necessary for military operations or for
development projects, proper consultation with the villagers should take place
and appropriate compensation -should be paid for those relocations which may be
determined necessary for reasons of the public good;
(g) The Government of Myanmar should take all
steps to refrain from recruiting any person who has not attained the age of 15
years into their armed forces, in accordance with article 38.3 of the
Convention on the Rights of the Child;
(h) All military and law enforcement
personnel, including prison guards, should be thoroughly informed and trained
as to their responsibilities, in full accordance with the standards set out in
international human rights instruments and humanitarian law. Such standards
should be incorporated into Myanmar law and legislation, including the new
constitution to be drafted. The training programme undertaken with the
cooperation of ICRC is a good start in this direction and should be continued;
(i) Given the magnitude of the abuses,
official condemnation should be made by the Government of all acts by
authorities involving human rights violations. Such acts, including all acts of
intimidation, threat or reprisal, should not benefit from the present system of
almost complete denial by, and impunity under, the Government;
(j) The Government of Myanmar should consider
the revision of the 1982 Citizenship Law to abolish its burdensome requirements
for citizenship. The law should not apply its categories of second class
citizenship in a manner which has discriminatory effects on racial or ethnic
minorities, particularly the Rakhine Muslim population. It should be brought
into line with the principles embodied in the Convention on the Reduction of
Statelessness of 30 August 1961;
(k) The Government of Myanmar is encouraged
to continue its cooperation with UNHCR in facilitating and ensuring the
voluntary and safe return of Rakhine Muslims from Bangladesh;
(l) The Government of Myanmar is also
encouraged to continue its cooperation with international non-governmental
organizations in facilitating and ensuring the free access of their
international staff to ordinary persons in the townships and villages in order to
establish contacts and provide assistance to persons who are suffering from a
shortage or lack of food, safe water, medicines, medical care and proper
education.
Annex 1
RESPONSE OF THE GOVERNMENT OF MYANMAR TO
ALLEGATIONS OF EXTRAJUDICIAL EXECUTION WHILE IN CUSTODY, AS RAISED BY THE
SPECIAL RAPPORTEUR DURING HIS MEETING WITH COLONEL KYAW WIN OF THE DIRECTORATE
OF DEFENCE SERVICE INTELLIGENCE ON 10 NOVEMBER 1994
(Document given to the Special Rapporteur by
the Myanmar authorities during his visit to Myanmar)
Name (age) Brief case history Remarks
1. Ko Zaw Win Tun: No one by that name was
detained or imprisoned.
2. U Aye Lwin: No one by that name was
detained or imprisoned.
3. Ko Soe Htay: No one by that name was
detained or imprisoned.
4. Ko Nay Win Aung: No one by that name was
detained or imprisoned.
5. Ko Aung Moe: No one by that name was
detained or imprisoned.
6. U Sein Win (alias U Win Zaw): No one by
that name was detained or imprisoned.
7. U Than Win (49 years): Action was not
taken against him. He is a representative-elect of the National League for
Democracy for Tha Baung 2 Constituency. He is now living in Pathein.
8. U Kyaw Win: Sentenced to 5 years'
imprisonment under section 5 (j) of the 1950 Emergency Provisions Act on 20
January 1992 at Myaungmya Prison. He was released on 9 January 1993 and is now
living in Pa Let village in Nyaung Don township.
9. U Tha Tun: Sentenced to 5 years'
imprisonment on 1 January 1991 under section 5 (j) of the 1950 Emergency
Provisions Act at Myaungmya Prison. He was released from prison on 25 November
1992 and is now living in Phoe Nar Ko village, Laputta township.
10. David Hla Myint (35 years): A
representative-elect of the National League for Democracy for Ngapudaw 2
Constituency. Sentenced to 6 months' imprisonment on 26 January 1991 under
section 6 of the State Flag Law for showing disrespect for the State flag. He
was released on 26 June 1991 and is now living in Pathein.
11. Ko Kyaw Soe (21 years): Sentenced to 8
years' imprisonment on 7 June 1991 under section 17 (2) of the 1908 Unlawful
Association Act for having been involved in the destruction of the electric
transformer at Bamaw. He is still serving his sentence in Mandalay Prison.
12. Hamin: Sentenced to 12 years'
imprisonment on 7 June 1991 under section 17 (2) of the 1908 Unlawful
Association Act for having been involved in the destruction of the electric
transformer at Bamaw. He is still serving his sentence in Mandalay Prison.
13. U Aye Ko (37 years): Sentenced to 6
years' imprisonment under section 5 (j) of the 1950 Emergency Provisions Act on
5 February 1991. He is still serving his prison term at Mandalay Prison.
14. Man Daweit (55 years): Sentenced to 8
years' imprisonment on 27 November 1989 under section 17 (2) of the 1908
Unlawful Association Act for seeking assistance from the KNU insurgents. He was
hospitalized on 29 June 1992 at Yangon General Hospital for lung cancer and
died on 12 July 1992 from the disease.
15. Mohamed Ilyas (alias Maung Nyo): Detained
for having laid explosive mines near the Golf Club at Maung Daw. He was
hospitalized at Mungdaw Hospital for severe pains in the stomach. He died on 23
June 1992 due to severe gastritis.
16. Khin Maung Myint (64 years): Sentenced to
10 years' imprisonment on 6 November 1989 under section 5 (j) of the 1950
Emergency Act and section 17 of the 1908 Unlawful Association Act for
involvement in the underground movement of the Burma Communist Party. He was
hospitalized on 12 August 1991 for tuberculosis and taken to Yangon General
Hospital for further treatment. He died on 16 February 1993.
17. Kyaw Myo Thant: Sentenced to 1 year's
imprisonment under section 505 (b) of the Penal Code on 7 November 1989 for
distributing illegal leaflets. He died on 20 May 1990 because of liver cancer
at Maubin General Hospital.
18. Soe Win (72 years): Sentenced to 20
years' imprisonment on 6 November 1989 under section 5 (j) of the 1950
Emergency Act and section 17 of the 1908 Unlawful Association Act for
involvement in the underground movement of the Burma Communist Party. He was
transferred from the Prison Hospital to Insein General Hospital for severe
jaundice, and died on 3 May 1991 at the hospital.
19. Nyo Win (58 years): Action was taken
against him on 18 July 1989 under section 19 (a) of the Unlawful Association
Act for circulating disinformation and distributing illegal leaflets. He was
hospitalized at the Prison Hospital for blood-poisoning and severe jaundice on
1 March 1991 and transferred to Insein General Hospital. He died from the
disease on 8 March 1991.
20. Khin Maung (alias Bo Set Yaung):
Sentenced on 2 November 1989 to 5 years' imprisonment under section 5 (j) of
the 1950 Emergency Act and section 17 of the 1908 Unlawful Association Act for
involvement the in underground movement of the Burma Communist Party. He died
at Insein Prison Hospital on 7 March 1990 from heart disease.
21. Thaw Ka, (62 years): Sentenced to 20
years' imprisonment on 5 November 1989 under section 5 (a) and (b) of the 1950
Emergency Provisions Act for organizing and exhorting the Tatmadaw personnel
from the Navy to dissociate from the combined Armed Forces. He was hospitalized
for heart disease on 7 June 1991 and transferred to Yangon General Hospital on
8 June 1991. He died from heart disease on 11 June 1991 at the hospital.
22. Tin Maung Win (51 years): Action was
taken against him on 21 November 1990 under sections 121 (1) and 124 of the
Penal Code for his involvement in attempting to form a parallel government. He
was hospitalized 10 January 1991 for leukaemia and died from the disease on 18
January 1991.
23. Zaw Tika, (60 years): Sentenced to 3
years' imprisonment on 8 February under section 5 (j) of the 1950 Emergency Act
and under section 295 of the Penal Code for involvement in a strike organized
by the monks. He was hospitalized in the Prison Hospital on 1 September 1992
because of tuberculosis and died of the disease on 18 November 1992 at the
Insein Prison Hospital.
24. Maung Ko: A member of the National League
for Democracy HQs. Detained for his involvement in attempting to form a
parallel government. He committed suicide on 9 November 1990.
Annex II
NATIONAL ARMED GROUPS WHICH HAVE RETURNED TO
THE LEGAL FOLD
(Document given to the Special Rapporteur by
the Myanmar authorities during his mission to Myanmar)
Name| Place| Leader| Date
Kokang National Group | Lauk kai | U Yan Moe
Lyan | 31 March 1989
Wa National Group | Pang Sang | U Kyauk Ni
Hlaing and U Bauk Yu Chang | 9 May 1989
Shan State Army (SSA) | Hseng Kiao | U Sai
Naung | 24 June 1989
Shan/Ahka National Group | Mong La | U Sai
Lin | 30 June 1989
New Democratic Army (Kachin) (NDA) | Pang Wa
| U Sakhon Taint Yein | 15 December 1989
Kachin Defence Army (KDA) | Kaung Kha | U Ma
Htu Naw | 1 November 1991
Pa-O National Organization (PNO) | Kyauk Ta
Loe | U Aung Kham Hti | 18 February 1991
Palaung State Liberation Party (PSLP) | Nam
Hsam | U Aik Mong | 21 April 1991
Kayan National Guard (KNG) | Mong Pai | U
Kabrial Byan | 27 February 1992
Kachin Independence Organization (KIO) |
Liaison Post | U Zaw Mai | 24 February 1992
Kayinni National People's Liberation Front
(KNPLF)| Hoya/Biya | U Htun Kyaw |9 May 1994
Kayan New Land Party (KNLP)| Polaung | U Than
Soe Naing | 26 July 1994
Shan National People's Liberation Organization
(SNPLO)| Naung Htaw | U Tarka Le | 10 September 1994
Annex III
CHART SHOWING PARTICULARS OF THOSE AGAINST
WHOM ACTION HAS BEEN TAKEN FOR HAVING CONTACT WITH KNU INSURGENTS AND WHO HAVE
BEEN RELEASED BY THE MYANMAR AUTHORITIES DURING 1994
(Document given to the Special Rapporteur by
the Myanmar authorities during his mission to Myanmar)
KNU - Kayan National Unity Party
MNLD - Mon National League for Democracy
UND - Union National Democracy Party
Name | Party assignment/occupation |
Sentence/legal basis | Prison/date of release
1. U.R.P. Thaung (Son of U Ni Si Taung) KNU
(disbanded), Central Executive Committee member (Than Daung 2) 5 years, 30 May
1991, section 5 (j) of the Emergency Provisions Act for selling secret
information and the fraudulent act of selling fabricated false reports to
foreign embassies. Insein Prison 21 June 1994
2. Nai Ngwe Thein (Son of U Tha Tun Aung)
MNLD (disbanded), Vice-Chairman 7 years, 4 November 1992, section 5 (j) of the
1950 Emergency Provisions Act; and 7 years' imprisonment under section 17 of
the Printers and Publishers Registration Act; 7 years, section 28 of Printers
and Publishers Registration Act. Mawlamyaing Prison 22 August 1994
3. Nai Tun Thein (Son of U Aung Dun) MNLD
(disbanded) Chairman (Thanbyu 2)
4. Maung Maung (Son of U Ko Lay) UND
(disbanded) Central Executive Committee Member 1 year, 25 February 1993,
section 17/20 of the Printers and Publishers Registration Act for printing
illegally books concerning the 6 basic principles of the National Convention; 6
months, 27 April 1993 under Section 468 of the Penal Code for failing to pay
the debt owed to Daw Ahmar Kyi. Insein Prison 14 December 1993
5. Saw Cha Lay (alias Saw Kyaw Thein) (Son of
U Saw Han) Fisherman 3 years, 8 June 1992, section 5 (j) of the Emergency
Provision Act for having contact with KNU insurgents. Pathein Prison 8 January
1994
6. Saw Lay Gyi (alias Saw Shwe Pe) (Son of U
Tha Hto) Dependent
7. Saw Jean (Son of U Saw Lay Gyi, alias Saw
Shwe Pe) Peasant
8. Thabye (alias Pauk Taw) (Son of U Pauk
Kyaw) Peasant 3 years, 12 November 1991, section 17 (1) of the 1908 Unlawful
Association Act for having contact with KNU insurgents. Maubin Prison 8 January
1994
9. Auspon (Son of U Saw Thein Kyaw) Student
(sentenced 28 December 1991)
10. Myint Aung Lay (Son of U Wai Hlaing)
Peasant
11. Hla Tun (alias Tha Tu) (Son of U Sein
Pale) Fisherman 3 years, 11 December 1991, section 17 (1) of the 1908 Unlawful
Association Act for having contact with KNU insurgents.
12. Maung San (Son of U Sein Hlaing) Peasant
(sentenced 12 December 1991)
13. Ma Ne Win Myint (Daughter of U Gar Midi)
Peasant (sentenced 30 December 1991)
14. Nan Tannie Soe (17 years) Peasant
15. Ma Naw Mu Tu (30 years) (Daughter of U
Shwe Kyu) Primary school teacher (sentenced 9 January 1992)
16. Naw Cristina (34 years) (Daughter of U
Aung) Principal of primary school
17. Nant Naung Sein (Daughter of U Mya Maung)
Peasant (sentenced 27 January 1992)
18. Ma Chaw Bo (Daughter of U Tha Paw)
Peasant (sentenced 31 January 1992)
19. Ma Thu (Daughter of U Tha Oo) Peasant
20. Ma Kyi Win (Daughter of U Aung Shwe)
Peasant 3 years, 14 February 1992, section 17 (1) of the 1908 Unlawful
Association Act for having contact with KNU insurgents.
21. Shwe Soe (Son of U Kyaw Hlaing) Peasant
(sentenced 10 April 1992)
22. San Aye (Son of U Ba Kyi) Peasant
23. Aung Maung (Son of U Khway) Peasant
24. Shwe Man (Son of U Tun Myaing) Peasant
25. Toke Kyi (Son of U Shwe Phee) Peasant
26. Thein Win (Son of U Than Kaung) Peasant
27. Kyaw Aye (Son of U Aung Yay) Peasant
28. Kywet Ni (Son of U Tun Phyu) Peasant
29. Pyone Cho (Son of U Toe Si) Peasant
30. Mya Thein (Son of U Shwe Yone) Peasant
31. Ohn Shwe (Son of U Thu Taw) Peasant 3
years, 10 April 1991, section 17 (1) of the 1908 Unlawful Association Act for
having contact with KNU insurgents. Maubin Prison 8 January 1994
32. Nant Sein Pwa (alias Phu Salu) Peasant
33. Tha Sein (Son of U Kyar Khin) Peasant
(sentenced 9 April 1992)
34. Nant La Pan Peasant (sentenced 27 April
1992)
35. Nant Aye Aye (Daughter of U Man Lan)
Peasant
36. Ma Melmon (Daughter of U Saw) Primary
School Teacher (sentenced 31 January 1992)
37. Htu Htu Ee (Son of U Takhu Taw) Peasant
13 years, 28 November 1991, section 17 (1) of the 1908 Unlawful Association Act
and 123 of the Penal Code for having contact with KNU insurgents. Insein Prison
26 April 1994
38. Saw Than Myaing (alias Po Dwe Hla) (Son
of U Po Than) Peasant (sentenced 29 November 1991)
39. Saw Ye Lu Htu (alias Po Htu) (Son of U
Tun Kyi) Peasant (sentenced 31 December 1991)
40. Saw Tin Tun (Son of U Aye Maung) Peasant
(sentenced 30 October 1991)
41. Saw Kaw Htu (Son of U Aung Htay) Peasant
20 years, 30 October 1991, section 17 (1) and 19 (a) of the 1908 Unlawful
Association Act and 122 of the Penal Code for having contact with KNU
insurgents. Insein Prison 26 April 1994
42. U Thaung (Son of U Tin Pe) Peasant
43. U Thein Aung (Son of U Charlie) Peasant
20 years, 30 October 1991, section 17 (1), 19 (a) and 2 (1) (a) of the 1908
Unlawful Association Act for having contact with KNU insurgents. Insein Prison
26 April 1994
44. Po Htay (alias Htaw Htu Shar) (Son of U
Po Pye) Peasant 5 years, 25 November 1991, section 17 (2) of the 1908 Unlawful
Association Act for having contact with KNU insurgents. Insein Prison 26 April
1994
45. Saw Kale Htu (alias Aye Gyi) (Son of U
Saw Htu) Peasant Myaungmya Prison 22 April 1994
46. Po Taw (alias El-Kaw Oo) (Son of U Wai
Po) Peasant
47. Po Kya Phyu (Son of U Kyaukhe) Peasant
48. Chit Thein (alias Po Thein) (Son of U War
Kle) Peasant
49. Shin Hmway Hla (alias Gadoe) (Son of U
Yaw Han) Peasant
50. Myo Myint Lay (alias Thet Pyinn) (Son of
U Aye Thein) Peasant 5 years, 25 November 1991, section 17 (2) of the 1908
Unlawful Association Act for having contact with KNU insurgents. Myaungmya
Prison 22 April 1994
51. Myo Myint Htun (alias Chit Koko) (Son of
U Aye Thein) Peasant
52. Waw Flee Thaw (alias Oak-Aul) (Son of U
Saw Roh Tha) Peasant
53. Saw Kale Htu (Son of U San Shwe) Peasant
54. Gaung Pyar (alias Aung Win Shwe) (Son of
U Po No No) Peasant
55. Po Kin (alias Hla Win) (Son of U Than
Sein) Peasant
56. Ta Ma La Wah (Son of U La Pye) Peasant
(sentenced 27 November 1991)
57. Saw Say He (Son of U Ei Faw) Peasant
(sentenced 25 November 1991)
58. Mu Le (Son of U Klar Pu) Peasant
(sentenced 3 June 1992)
59. Lwe Htu (Son of U Klar Pu) Peasant
60. Saw Ta Khu (Son of U Lu Lay) Peasant 5
years, 23 June 1992, section 17 (2) of the 1908 Unlawful Association Act for
having contact with KNU insurgents. Myaungmya Prison 22 April 1994
61. Saw Hmway Tha (Son of U Lu Lay) Peasant 3
years, 23 June 1992, section 17 (2) of the 1908 Unlawful Association Act for
having contact with KNU insurgents. Myaungmya Prison 22 April 1994
62. Saw Har Ray (Son of U Adu) Peasant 3
years, 5 October 1992, section 17 (1) of the 1908 Unlawful Association Act for
having contact with KNU insurgents. Myaungmya Prison 22 April 1994
63. Saw Pe Khu (alias Pine Aye) (Son of U Tun
Pe) Peasant (sentenced 21 June 1992)
64. Maung Gyo (alias Shwe Aye) (Son of U Lu
Lay) Peasant (sentenced 23 June 1992)
65. Saw Shie Plaw (Son of Htu Saw) Peasant
(sentenced 5 October 1992)
66. Saw Say Lay (Son of U Char Lay) Peasant
67. Saw Khay Let (Son of Saw Htu) Peasant
68. Saw El Mu Khu (Son of U Saw Roh) Peasant
69. Saw Htu Htu (Son of U Phre-Say) Peasant
70. Saw Phar Gay (Son of U Man Ko) Peasant
71. Saw Kar Yu (Son of U Ngwe Gaine) Peasant
3 years, 5 October 1992, section 17 (1) of the 1908 Unlawful Association Act
for having contact with KNU insurgents. Myaungmya Prison 22 April 1994
72. Saw Lar Phaw (Son of U Kyee Phyu) Peasant
73. Saw Shie Tha (Son of U Seik Sin) Peasant
74. Set Htee Man (Son of U Pu Lay) Peasant
(sentenced 11 November 1992)
75. Kyar Htun (Son of U Aung Tin) Peasant
76. Saw Yi Phine Se (alias Ba Lay) (Son of U
Saw Nelson) Peasant 20 years, 12 November 1991, section 17 (1) and 19 (a) of
the 1908 Unlawful Association Act and section 123 of the Penal Code. Myaungmya
Prison 22 April 1994
77. Saw Phar Lar Kho (Son of U Saw Hla Kyaw)
Peasant 10 years, 29 August 1994, section 17 (1) and 19 (a) of the 1908
Unlawful Association Act for having contact with KNU insurgents. Insein Prison
13 October 1994
78. U Shwe Boke (son of U Kar Lein) Peasant 3
years, 10 April 1992, section 17 (1) of the 1908 Unlawful Associations Act for
having contact with KNU insurgents. Ma U Bin Prison 8 January 1994
*/ Corrigendum E/CN.4/1995/65/Corr.1 issued
on 6 February 1995
Paragraph 100
Lines 2 and 3 should read paragraph 9 of the
interim report of the Special Rapporteur to the General Assembly at its
forty-ninth session (A/49/594 of 28 October 1994).
******************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
1996
UNITED NATIONS
Economic and Social Council
Distr. GENERAL
E/CN.4/1996/65
5 February 1996
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-second session
Item 10 of the provisional agenda
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ANY PART
OF THE WORLD, WITH PARTICULAR REFERENCE TO COLONIAL AND OTHER DEPENDENT
COUNTRIES AND TERRITORIES
Report on the situation of human rights in
Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on
Human Rights, in accordance with Commission resolution 1995/72
CONTENTS
Paragraphs
INTRODUCTION 1-18
A. Mandate 1-4
B. Historical background 5-18
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR 19-84
A. Introduction 19
B. Visit to Myanmar 20-83
C. Visits to camps in Thailand 84
II. ALLEGATIONS 85-164
A. Extrajudicial, summary or arbitrary executions 85-92
B. Arbitrary arrest and detention 93-113
C. Torture and other cruel, inhuman or degrading treatment 114-117
D. Freedom of expression and association 118-133
E. Freedom of movement and forced relocation 134-140
F. Labour rights 141-144
G. The National Convention and the process of democratization 145-152
H. The movement toward reconciliation with the insurgents 153-160
I. The treatment of the Muslim population in Rakhine State 161-164
III. CONCLUSIONS AND RECOMMENDATIONS 165-180
A. Conclusions 165-179
B. Recommendations 180
Annexes
(Documents given to the Special Rapporteur by
the Myanmar authorities)
I. Extract from the Prisons Act, 1894 (Sect.
40, provision 784) 40
II. Directive No. 125 prohibiting unpaid
labour contributions in national developments projects 41
III. Directive No. 82 to stop obtaining
labour without compensation from the local people in irrigation projects 42
Introduction
A. Mandate
1. The mandate of the Special Rapporteur of
the Commission on Human Rights on the situation of human rights in Myanmar has
been described in each of the Special Rapporteur's previous reports to the
General Assembly (A/47/651, A/48/578, A/49/594 and A/50/568) and to the
Commission on Human Rights (E/CN.4/1993/37, E/CN.4/1994/57 and E/CN.4/1995/65).
The mandate, initially articulated in Commission resolution 1992/58 and
extended most recently by the Commission in its resolution 1995/72 of 8 March
1995 (approved by the Economic and Social Council in its decision 1995/283 of
25 July 1995), required the Special Rapporteur to establish or to continue
direct contacts with the Government and the people of Myanmar, including
political leaders deprived of their liberty, their families and their lawyers,
with a view to examining the situation of human rights in Myanmar and following
any progress made towards the transfer of power to a civilian government and
the drafting of a new constitution, the lifting of restrictions on personal
freedoms and the restoration of human rights in Myanmar. In resolution 1995/72,
the Commission urged the Government of Myanmar to extend its full and
unreserved cooperation to the Commission and the Special Rapporteur and, to
that end, to ensure that the Special Rapporteur had effectively free access to
any person in Myanmar whom he might deem it appropriate to meet in the
performance of his mandate, including Daw Aung San Suu Kyi; requested the
Secretary-General to give all necessary assistance to the Special Rapporteur;
and requested the Special Rapporteur to report to the General Assembly at its
fiftieth session and to the Commission at its fifty-second session.
2. The substantive issues addressed by the Commission on Human Rights in resolution 1995/72 included the following concerns: that the electoral process initiated in Myanmar by the general elections of 27 May 1990 had not yet reached its conclusion and that the Government still had not implemented its commitments to take all the necessary steps towards democracy in the light of those elections; that many political leaders, in particular elected representatives, remained deprived of their liberty; that Daw Aung San Suu Kyi, Nobel Peace Prize laureate, was still under house arrest; that there had been a recent offensive against the Karen National Union, Burmese student activists and other groups of the political opposition which resulted in an exodus of refugees