COLLECTED REPORTS TO THE UN
GENERAL ASSEMBLY BY THE SPECIAL RAPPORTEURS
ON THE SITUATION OF HUMAN
RIGHTS IN
PROFESSOR YOZO YOKOTA (1992-1996)
JUDGE RAJSOOMER LALLAH (1996-2000)
PROFESSOR PAOLO SERGIO PINHEIRO (2000-)
INTRODUCTION
Basic starting points for an assessment of human rights
conditions in Burma/Myanmar are the UN resolutions on the situation of human
rights in
Special Rapporteurs are independent experts appointed by the
Commission on Human Rights to examine and report on particular human rights
themes or on the situation of human rights in particular countries. Country
Special Rapporteurs are only appointed to examine the most serious human rights
situations. The Commission appointed Professor Yozo Yokota as Special
Rapporteur on the situation of human rights in
Not only are the reports of the Special Rapporteur the most
authoritative general reports on the human rights situation in Burma/Myanmar,
including analysis of the legal framework governing the exercise of human
rights in the country, but they also contain an abundance of summaries of
testimonies gathered by the Special Rapporteurs over 12 years as well as the
responses of the Government of Myanmar to specific allegations.
By reading the reports as a body it is thus possible to see
the patterns of violations over a number of years, to assess the degree to
which they are systematic, widespread and persistent over time, to track
particular themes from 1992 (e.g. killings, rape, torture, forced relocation,
forced labour) but also to inquire whether there has been any development,
positive or negative, since the United Nations human rights bodies began their
examination of the situation.
The present document and the parallel collection of
reports to the Commission on Human Rights are intended to facilitate searching
of the reports as a body. Since they are rather large documents, they are
presented in Text. Text does not permit tables, and although I have presented
the information from the tables as clearly as possible, some readers may wish
to check the original (and authoritative) versions -- go to http://www.burmalibrary.org and search
for the document number, e.g. A/48/578, and click on the link, or to the
website of the UN High Commissioner for Human Rights, http://www.unhchr.ch and search. Otherwise, go
to http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/Myanmar%20En?OpenDocument&Start=1&Count=15&Expand=2
for links to the individual reports or to the web-page of the Special
Rapporteur on
David Arnott,
Last updated, August 2003
CONTENTS
A/47/651
Professor Yokota’s first report to the GA
A/48/578
A/49/594
A/49/594/Add.1
A/50/568
A/51/466
8 October 1996
Judge Lallah's first report to the GA
A/52/484
A/53/364
A/54/440
A/55/359
A/56/312
Professor Pinheiro's first report to the GA
A/57/290
A/58/219
**********************************************************************************************************************************************************************************************************************************************************************************************************************
THE REPORTS
UNITED NATIONS
A
General Assembly
Distr. GENERAL
A/47/651
ORIGINAL: ENGLISH
Forty-seventh session
Agenda item 97 (c)
HUMAN RIGHTS QUESTIONS: HUMAN RIGHTS SITUATIONS AND REPORTS OF SPECIAL RAPPORTEURS AND REPRESENTATIVES
Situation of human rights in Myanmar Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the General Assembly the preliminary report prepared by Professor Yozo Yokota (Japan), Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with paragraph 3 of Commission resolution 1992/58 of 3 March 1992 and Economic and Social Council decision 1992/235 of 20 July 1992.
ANNEX
Preliminary report on the situation of
human rights in
CONTENTS
Paragraphs Page
I . INTRODUCTION .......................................... 1-53 3
II . BACKGROUND ............................................ 6-32 3
A. General ........................................... 6-7 3
B. Chronology of events pertinent to the situation ... 8-28 4
C. The legal framework ............................... 29-32 7
III. MEMORANDUM OF THE SPECIAL RAPPORTEUR TO THE GOVERNMENT
OF
IV.
RESPONSE OF THE GOVERNMENT OF
MEMORANDUM OF THE SPECIAL RAPPORTEUR .................. 34 9
V. PROPOSED VISIT
TO
A. Arbitrary detention ............................... 39-42 10
B. Disappearances .................................... 43 - 45 10
C. Torture, cruel, inhuman or degrading treatment .... 46-52 11
D. Summary or arbitrary execution .................... 53-55 12
VI. PRELIMINARY OBSERVATIONS AND RECOMMENDATIONS .......... 56-64 13
A. Preliminary observations .......................... 56 - 60 13
B. Preliminary recommendations ....................... 61-64 14
Appendix.
Memorandum on the human rights situation in
by the Government of
I. INTRODUCTION
1. On
2. By paragraph 3 of resolution 1992/58, the Commission on Human Rights decided to nominate a Special Rapporteur to establish direct contacts with the Government and with the people of Myanmar with a view to examining the situation of human rights in Myanmar and to report to the General Assembly at its forty-seventh session and to the Commission on Human Rights at its forty-ninth session.
3. After
consultation with the Bureau, the Chairman of the Commission on
4. At its
session of
5. The present preliminary report is submitted to the Secretary-General of the United Nations for dissemination to all States Members of the United Nations.
II. BACKGROUND
A. General
6. 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 Subcommission on the Prevention of Discrimination and Protection of
Minorities at its fortieth and forty-first sessions, in 1988 and 1989,
respectively. The Commission continued in 1991 its consideration of the
situation in
7. As mentioned above,
the Commission decided at its forty-eighth session to appoint a Special
Rapporteur to examine the situation of human rights in
B. Chronology of events pertinent to the situation
8. In 1948 the
Union of Myanmar (then called
9. 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, 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
10. According to
article 201 of the Constitution, ethnic minorities had, in theory, the right to
secede from the
11. In March 1948, an armed insurgency against the then Government of Burma was begun by the Communist Party of Burma. From 1948 until 1961, various minority ethnic groups joined the armed insurgency.
12. In March
1962, General Ne Win took power in a coup d'etat. 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 "
13. On
14. In 1974, a new Constitution was drafted. However, one-party rule continued.
15. 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. 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.
16. From March to
June 1988, serious clashes between students and workers and the military took
place. 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
17. On
18. Clashes continued between demonstrators and the army and riot police (Lon Htein). 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.
19. On
20. 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.
21. 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).
22. On
"1. Maintenance of law and order.
"2. Providing smooth and secure transportation.
"3. The State Law and Order Restoration Council will strive for better conditions of food, clothing and shelter of the people and render necessary assistance to the private sector and the cooperatives to do so."
23. 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.
24. On
25. In May 1990, general elections were held. Widespread allegations of irregularities were reported. Nevertheless, the opposition (NLD) was reliably reported to have won the elections overwhelmingly.
26. SLORC set up an Election Commission to scrutinize the results of the elections and all expense accounts of all elected representatives. When this process is completed (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.
27. 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 Declaration 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 preparation of the
Coordination Meeting for the Convening of the National Convention. Leaders of
lawfully existing political parties were to attend in numbers as designated by
the Steering Committee. The nomination list of those representatives was 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. Beginning in
early 1992, a mass exodus of Myanmar Muslims from
C. The legal framework
29. As a
30. On
31. In addition
to its treaty obligations,
32. The Union of Myanmar is not a party to the International Covenant on Civil and Political Rights and its Optional Protocol nor to the International Covenant on Economic, Social and Cultural Rights, nor is it a party to the 1951 Convention relating to the Status of Refugees or to the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
III. MEMORANDUM OF THE SPECIAL RAPPORTEUR TO THE
GOVERNMENT OF
33. The following questions were addressed to the Government of Myanmar by the Special Rapporteur:
(a) With regard to preparations for the National Convention for drafting a new democratic state constitution, please indicate the nature and advancement of these preparations and in particular: the members of the Steering Committee that will steer the holding of the Coordination Meeting for the Convening of the National Convention; the purpose of the Coordination Meeting; which political parties and how many members from each party will participate; how it is determined if these parties and each individual representative from each party is "lawfully standing" (as prescribed by SLORC Order No. 9/92 dated 28 May 1992); what the role and competency will be of the Steering Committee in the preparation, holding and aftermath of the Meeting and the Convention; the projected timetable for the holding of the Convention; the projected timetable for the drafting of the new constitution and the projected timetable for the transfer of power to a civilian government?
(b) With regard to the political leaders deprived of liberty, would the Government please provide: a copy of the list of persons in detention and of those released during the course of 1992 indicating which among these persons were/are active members of their political parties and those who stood for the general elections; the charges brought in each case of arrest or detention; whether the person was brought before a magistrate prior to trial and within how much time subsequent to arrest; whether a trial was held for each case of detention or arrest; how the courts were constituted and what the trial procedures are under the law; whether pre-trial and/trial counsel were provided; what provisions for notification of detention to relatives exist under the law; whether each detainee was or is allowed visits by relatives and a lawyer; whether final sentence was passed in each case and who is responsible for determining the length and kind of sentence according to what provision of law?
(c) The recent decision of the Government of Myanmar to sign and ratify the four Geneva Conventions of 1949 is highly welcomed. What steps have been taken to adhere to the two Protocols Additional to the Geneva Conventions, particularly the Second Protocol Additional to the Conventions? Please indicate any steps taken to adhere to any of the international human rights instruments, particularly the Covenants on Civil and Political Rights and on Social, Cultural and Economic Rights and the Convention on Torture.
(d) Concerning
the Muslim people of
(e) Please describe any other recent steps taken by the Government of Myanmar in the field of human rights that the Government wishes to bring to the attention of the Special Rapporteur.
IV. RESPONSE OF THE GOVERNMENT OF
34. The following responses to the Special Rapporteur's memorandum were received:
(a) On
(b) On
V. PROPOSED VISIT TO
35. The Special
Rapporteur has envisaged a visit to
36. The Rapporteur has further requested full access to all areas of the country in which information may be gathered that is deemed necessary for the completion of his mandate.
37. The Rapporteur has also envisaged carrying out visits to Thailand (from 5 to 7 December 1992) and Bangladesh (from 15 to 18 December 1992) for the purpose of gathering information and testimony from refugees regarding the situation in the country of origin (Myanmar), as well as from other individuals and groups who may provide information pertinent to the situation of human rights in Myanmar.
38. As regards
the situation of human rights in
A. Arbitrary detention
39. The United
Nations Centre for Human Rights has received information concerning 914 cases
of alleged arbitrary detentions reported to have occurred in
40. In cases where the legislative basis for detention has been indicated, section 10 (a) of the 1975 State Protection Law, section 5 (j) of the Emergency Provisions Act, section 17.1 or 17.2 of the Unlawful Association Act, section 19.1 of the Provisional Arms Act and the Printers and Publishing Law have most frequently been cited.
41. According to information provided by the Government of Myanmar, 427 persons previously under detention have been released since April 1992 in accordance with Declaration 11/92.
42. The Special Rapporteur was informed that in the case of Daw Aung San Suu Kyi, the Government of Myanmar has allowed the family to visit her in restrictive detention and to bring necessary foodstuffs.
B. Disappearances
43. The Working Group on Enforced or Involuntary
Disappearances maintains files on two outstanding cases of enforced or involuntary
disappearances alleged to have occurred in
44. Cases of disappearances have allegedly occurred in the context of forced relocations of entire villages by the army, round-ups reportedly for forced recruitment of porters or minesweeps for the army or for recruitment of young men to serve in the army. It has been reported that in many cases the males have either already been recruited or fled for safety at the approach of the army. In such cases, the women and young girls have been left at considerable risk and many of the alleged violations concern this vulnerable group.
45. One example
is the case of a 12-year-old girl from Bawli Bazaar, Akyab,
C. Torture, cruel, inhuman or degrading treatment
46. The Centre
for Human Rights has been seized of more than 100 well-documented cases of alleged
torture or cruel, inhuman or degrading treatment alleged to have been committed
by the SLORC army in the context primarily of forced recruitment and forced
labour. Again, the preponderance of cases, particularly those alleged to have
occurred in 1992, pertain to victims belonging to the Muslim population of the
47. Examples of torture include cases such as porters being forced to carry loads they cannot bear. When they are too sick or weak to continue, they are allegedly beaten with rifle butts, kicked and left by the wayside. Those too weak to move have reportedly been burned alive and any who survive have been left to die.
48. In another reported case, soldiers from the 82nd Company based in Thentarang Camp went through the Hangdaung village recruiting people for forced labour. A dozen females, including old women and children, were tied together and taken away. During the journey, the old women were allegedly frequently beaten for their inability to keep up. Upon reaching a camp, the females were separated "by beauty". The old women and youngest girls sat under guard, while the others were taken into rooms and raped without stop for several days and denied food or sleep.
49. In another
case demonstrating a continual pattern of abuse, many women of Hashuradha
village in Maungdaw,
50. Torture of detainees to extract confessions has also been reported. The torture has been said to ha/e occurred primarily during periods of prolonged incommunicado detention and several of the security forces, including the regular army, have allegedly been involved. The use of electric shocks, using prisoners as "motorcycles", burnings and continual beatings have been described in cases received.
51. In one reported case in Immuddinpara, Rama Musleroi, Bauthidaung, a young man returned from forced portering to find that his sister and brother had been abducted by security forces. Because he was a village headman, he believed he would be safe in approaching the army with regard to his siblings. He disappeared. About three weeks later, his body and that of his brother were found by the man's wife. His genitals had been cut off, his eyes gouged out, both hands cut off and his torso had been sliced in two.
52. Cruel, inhuman or degrading treatment has also been reported during periods of detention. Deprivation of food, sleep and light have been reported in various cases. Situations of forced portering have been described as including almost constant cruel and inhuman treatment. Forcing persons to bear undue weights, to withstand physical conditions without proper food and clothing, lack of medical attention if porters fall ill and the constant use of ankle chains have been reported.
D. Summary or arbitrary execution
53. Information
concerning numerous well-documented cases of summary and arbitrary execution
alleged to have occurred in
54. Large numbers
of reported cases of arbitrary executions allegedly occurred in the context of
forced portering. In reports received from
55. Other arbitrary executions have been reported in the context of forced ' relocations of persons, sometimes entire villages. In one case received, villagers from Ludengpara, Buthidaung, were forced by soldiers to move out of the village in February 1992. Over 120 women, many with children, were tied together and moved. Along the way, many of the women could not continue and children began to cry. It is alleged that crying babies and children were taken from the mothers and thrown over the roadside. Over 20 children were allegedly lost in one night.
VI. PRELIMINARY OBSERVATIONS AND RECOMMENDATIONS
A. Preliminary observations
56. Since the Special Rapporteur intends to visit
57. By note verbale, the Government informed him that, by
SLORC Order No. 12/92, Martial Law Orders 1/89 of
58. 'The Special Rapporteur has also been informed that other SLORC Orders still in effect include, inter alia, 1/91, prohibiting civil servants from participating in politics and their dependents or persons under their guardianship from participating directly or indirectly in activities aimed at opposing the Government; 2/88, prohibiting the assembly of five or more persons; and 3/90, relating to the right to assemble and campaign, which 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 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 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".
59. With regard to the memorandum addressed to the Government of Myanmar (see para. 33), it should be noted that the fourth section, concerning the Muslim population of Northern Rakhine State, was not directly answered. The response indicates that the Constitutions of 1947 and 1974, which contain adequate provisions for all citizens to profess the religion of their choice, are no longer operative. No other legal basis attesting to the existence of religious tolerance or freedom in Myanmar has been detailed. Further, although the Special Rapporteur appreciates the constitutional safeguards presented, it should be noted that while the Constitution accords rights and protections regarding religious freedoms to all "citizens", the response of the Government (appendix, para. 36) elucidates that "those Muslims of Bengali stock living on the Myanmar-Bangladesh border are not Myanmar citizens according to the Myanmar Citizenship Law". The Special Rapporteur hopes that further exchanges with the Government of Myanmar will shed light on the legal status, rights and protections of the Muslim population of Northern Rakhine State. With regard to the de facto situation of the Muslim population, while the Special Rapporteur also appreciates the statement of the Government that "many national races ... have lived together in amity and harmony for a long time" and that the fact that "the four major religions have existed and flourished in peace is an eloquent testimony to the existence of religious freedom in Myanmar", the situation of 250,000 Muslim refugees in Bangladesh who refuse to return to Myanmar without adequate international monitoring of a safe return and reinstallation continues to be a matter of concern to the Special Rapporteur and he looks forward to an ongoing dialogue with the Government on the question.
60. With regard to the question of "matters concerning arrests or detention and trial of cases", the Special Rapporteur wishes to note that again the question posed by him was not specifically answered. The Code of Criminal Procedure and the criminal procedures used in detentions and trials of cases as detailed in the response of the Government are not the authority upon which any of the persons listed in annexures F or G were detained or tried. All of the listed persons were detained under section 5 (j), (a) or (b) of the Emergency Provision Act of 1950 or section 17 (1) of the Unlawful Association Act. In the Government's response, the Law Safeguarding the State against the Dangers or Subversive Elements of 1975 was not detailed and its role in any actual detentions and trials was not explained. The Special Rapporteur looks forward to an ongoing dialogue with the Government on further questions of laws regarding arrests, detentions, restrictions and trials and hopes that a copy in English of the Emergency Provisions Act will be provided to him.
B. Preliminary recommendations
61. The Special Rapporteur congratulates the Government of Myanmar on its recent accession to the four Geneva Conventions of 1949 and urges the Government to sign and ratify Protocol II additional to the Geneva Conventions of 1949 Relative to Conflicts of a Non-International Character and Protocol I Relative to Armed Conflicts of an International Character.
62. The Special Rapporteur further urges the Government of Myanmar to sign and ratify the Covenants on Civil and Political Rights and Economic/ Social and Cultural Rights/ the Optional Protocol to the Covenant on Civil and Political Rights, as well as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
63. The Special Rapporteur encourages>the Government of Myanmar, in a spirit of humanitarian goodwill, to invite the presence in Myanmar of the International Committee of the Red Cross and the United Nations High Commissioner for Refugees in order to carry out their purely humanitarian tasks.
64. The Special Rapporteur urges the Government of Myanmar to continue its policy of allowing Daw Aung San Suu Kyi to receive visits from her family and to receive all resources necessary for her well-being. The Special Rapporteur encourages the Government to extend this policy to other persons in detention or restriction.
Notes
1/ State Law and Order Restoration Council Chairman, Commander-in-Chief of the Defence Services, General Saw Maung's Addresses, p. 29.
2/ 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.
APPENDIX
Memorandum on the human rights situation in Myanmar by the Government of Myanmar
A. Preparations for the National Convention
1. Preparations are now in full swing for the convening of the National Convention in order to lay down the basic principles for the drafting of a firm and strong constitution.
2. In accordance with the programme of action spelt out in its Declaration No. 1/90 of 27 July 1990, the Government issued Declaration No. 11/92 on 24 April 1992, which maps out the programme to be implemented in a specific time-frame in respect of the National Convention that will set out the basic principles for a new constitution (annex A).
3. In accordance with the programme of implementation, a 15-member Steering Committee was established on 28 May 1992 by Notification No. 35/92. (Please see annex B for members of the Steering Committee.) With a view to holding the Coordination Meeting for the convening of the National Convention, Order No. 9/92 was issued on 28 May 1992. It sets out the number of elected representatives of the lawfully existing political parties to attend the Coordination Meeting. It also sets out duties to be carried out by the Steering Committee for the successful holding of the Coordination Meeting (annex C).
4. The Coordination Meeting met in June and July to discuss and coordinate the category and number of delegations to be invited to the National Convention. It completed its coordination work on 10 July 1992. General agreement was reached at the Coordination Meeting that elected representatives, representatives of the political parties, the national races, peasants, workers, the intelligentsia and technocrats, civil service personnel and specially invited persons are to be included to participate in the National Convention. Terrorist groups that renounce the path of armed struggle and return to the legal fold will also have an opportunity to participate. There is also complete convergence of views that the constitution to be drafted should uphold and safeguard the following three main national causes:
(a) Non-disintegration of the Union;
(b) Non-disintegration of national solidarity;
(c) Perpetuation of national sovereignty.
5. The National Convention is expected to be convened at the end of the year or by the beginning of 1993 at the latest.
6. In order that the National Convention may be convened systematically, successfully and smoothly, an 18-member Convening Commission for the National Convention has been formed by Order No. 13/92 of 2 October 1992 setting out the duties and functions of the Commission (annex D).
7. The Convening Commission, in order to carry out its duties and functions more effectively and successfully, formed a 36-member Management Committee for Convening the National Convention on 1.5 October 1992 (annex E).
B. Members of political parties against whom action has been taken during 1992 and list of persons in detention and those released during 1992
8. For members of political parties against whom action has been taken during 1992, please see the table in annex F.
9. For the list of persons in detention and of those released during 1992, please see the table in annex G. [The above-mentioned lists are maintained by the secretariat and are available for consultation upon request. The Government indicated that action against 6 persons had been taken in 1992 and that out of 68 persons in detention in 1992, 29 were still in detention and 39 had been released. Note by the secretariat.]
Matters concerning arrests or detention and trial of cases
(a) Arrest and detention
10. In the Union of Myanmar, arrest or detention of a person is made in accordance with the provisions contained in the Code of Criminal Procedure. Under section 54 of the Code any police officer may, without an order from a magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. Therefore, a police officer may not arrest a person without an order or a warrant from a magistrate for an offence that is not cognizable.
11. However, under section 61 of the Code of Criminal Procedure no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the police station, and from there to the magistrate's court.
12. Whenever a person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of 24 hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation shall immediately submit to the nearest magistrate a copy of the diary of the case, and shall, at the same time, forward the arrested person to such magistrate. The magistrate may authorize the detention of the arrested person in custody for not more than 15 days in the case of an arrested person accused of an offence punishable with imprisonment for a term of less than seven years. If the offence is one punishable with imprisonment for a term of not less than seven years, the total period of detention shall, in no case, exceed a total of 30 days.
(b) Right of the accused while in custody
13. During the investigation by the police the arrested and detained person has the right to engage a lawyer, if he so desires. Under paragraph 1198 (3) of the Myanmar Police Manual, the arrested and detained person may, while in police custody, meet and seek advice from his lawyer or his relatives and friends. He may be provided with food of his liking by his relatives and friends.
14. Under section 496 of the Code of Criminal Procedure, he has the right to apply for granting of bail to the police officer either through his lawyer or by himself during the investigation by the police. If the offence alleged against him is a bailable one according to the second schedule of the said Code he shall, as of right, be released on bail. Even in non-bailable cases mentioned in the above schedule the arrested and detained person has the right to apply freely for bail to the magistrate concerned during the police investigation and the court may grant him bail according to the merits of the case. Even in cases where a person is accused of an offence punishable with death or transportation for life, the Court may grant bail to him if there is no ground to believe that he is guilty of such an offence.
15. If there is no case against the arrested and detained person he shall be released. If a case is made against him, he is sent up for trial to the court concerned.
(c) Courts and judicial principles
16. The courts in Myanmar are constituted under the Judiciary Law of 1988, in the following order:
(a) The Supreme Court;
(b) State or divisional court;
(c) District court;
(d) Township court.
An appeal or revision of any judgement or. order of the township court goes to the state or divisional court, or the district court; an appeal or revision of the judgement or order of the state or divisional court, or the district court goes to the Supreme Court.
17. The administration of justice in Myanmar is based on the following principles:
(a) Administering justice independently according to the law;
(b) Protecting and safeguarding the interests of the people and aiding in the restoration of law and order and peace and tranquillity;
(c) Educating the people to understand and abide by the law and cultivating in the people the habit of abiding by the law;
(d) Working within the framework of law for the settlement of cases;
(e) Dispensing justice in open court unless otherwise prohibited by law;
(f) Guaranteeing in all cases the right of defence and the right of appeal under the law;
(g) Aiming at reforming moral character in meting out punishment to offenders.
(d) Trial of cases
18. After completion of investigation by the police within the 30 days allowed by section 167 of the said Code, the case is sent up for trial to the Court concerned. The accused has the right under section 340 of the said Code to engage a lawyer for his defence if he has not done so during investigation by the police. If the accused has not been granted bail during investigation he may apply again for bail to the trial court
19. Procedures for trial of cases differ according to the classification of cases. Cases are classified as summons and warrant cases. Summons cases are those cases relating to an offence punishable with imprisonment for a term not exceeding six months. Warrant cases are those cases relating to an offence punishable with death, transportation or imprisonment for a term exceeding six months.
20. Summons cases not being of a serious nature are mostly adjudicated .the day the cases are sent up for trial.
21. The procedure for trial of warrant cases is prescribed in chapter XXI of the Code of Criminal Procedure. In a warrant case the evidence produced in support of the prosecution is first taken and the accused has the right to cross-examine each and every witness so produced. If a prima facie case is made a formal charge is framed against the accused. After the charge is framed the accused has the right to recall and cross-examine for the second time any of the prosecution witnesses examined previously by the prosecution and the defence. Then the accused has the right to give evidence on his own behalf and produce witnesses in his support. Except as otherwise expressly provided all evidence shall be taken in the presence of the accused or when personal attendance is dispensed with under the Code of Criminal Procedure in the presence of his counsel.
22. When the accused is examined, the whole of the examination, including every question put to him and every answer made by him, shall be recorded in full and such record shall be shown or read to him, or if he does not understand the language, shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his answers. The court may at any stage of the trial put any question to the accused and when he declines to give evidence the court may ask questions generally. The accused will not render himself liable to punishment if he refuses to answer or give false answers. No oath is given when he declines to give evidence on his own defence. Any person aggrieved by an order of the trial court may appeal against such order to the relevant appellate court.
23. Under section 403 of the said Code a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence.
(e) Trial of cases by military tribunals
24. With a view to more effectively carrying out security tasks ensuring the rule of law and prevalence of peace and tranquillity military tribunals were formed in 3 of the 10 military regions in Myanmar under Martial Law Order No. 1/89 dated 17 July 1989 by the State Law and Order Restoration Council.
25. The procedure for the trial of cases by the military tribunals was prescribed under Martial Law Order No. 2/89 dated 18 July 1989 by the State Law and Order Restoration Council for speedy disposal of criminal cases.
26. Only those cases which affect the security, rule of law and peace and tranquillity of the State and also cases that affect the moral character of the people are tried by military tribunals. The number of cases tried by the military tribunals compared to criminal cases tried by civil courts is negligible. Later, martial law power exercised in various townships where the rule of law and maintenance of peace and tranquillity have improved was revoked township by township. ,
27. In view of the improvement and stability of the general situation in the State and in view of the interest of the people, the State Law and Order Restoration Council has now revoked all the Martial Law Orders by Order No. 12/92 on 26 September 1992. As a result, at present all cases are being tried by civil courts.
(f) Law safeguarding the State
28. In order to prevent the infringement of the sovereignty and security of the State or public peace and tranquillity and to safeguard the State against the dangers of subversive elements, the Law Safeguarding the State against the Dangers of Subversive Elements was enacted in 1975. 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 the Council of Ministers has formed a Central Body consisting of the Minister for Home Affairs, the Minister for Defence and the Minister for Foreign Affairs. The policies and guidelines to be adhered to in restricting the fundamental rights of citizens are laid down in section 9 of the Law.
29. The Central Body in passing restriction orders for safeguarding the State against dangers has the following powers:
(a) Arresting and detaining a person against whom action is taken for a period not exceeding 60 days at a time up to a total of 180 days;
(b) Restraining a person against whom action is taken up to one year. 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.
30. A person may be restrained under the aforesaid Law in the following manner:
(a) Prescribing the area within which he shall not reside;
(b) Prescribing the area in which he shall reside;
(c) Restricting his movements, as may be necessary;
(d) Prohibiting the possession or use of articles prescribed.
C. Myanmar's accession to the four Geneva Conventions
31. On 24 August 1992, Myanmar acceeded to the four Geneva Conventions of 1949.
32. We are making an in-depth consideration of the provisions in the two Additional Protocols to the four Geneva Conventions.
33. Myanmar is not yet a party to the Covenants on Civil and Political Rights and on Social, Cultural and Economic Rights and the Convention on Torture.
D. Muslim people of
(a) Residency status under law
34. Among the Muslims of Bengali stock living along the border area in the Rakhine State there are those who hold registration cards issued in accordance with the 1949 National Registration Act for those living within the Union of Myanmar. There are also those who are listed in the list of household members without, however, possessing any registration cards.
35. The national registration card does not determine the citizenship of the holder of the card. It is a certificate that establishes the identity of the holder and the fact that he resides within the Union of Myanmar.
36. Those Muslims of Bengali stock living on the Myanmar-Bangladesh border are not Myanmar citizens according to the Myanmar Citizenship Law. They have guest status with the right to apply for citizenship. In order to become a citizen, they must apply for citizenship in accordance with the relevant provisions, of the Citizenship Law. According to the Election Law of the Pyithu Hluttaw, they have the right to vote without, however, the right to be elected.
(b) Legal provisions that determine residency status
37. The legal provisions that determine the status of citizenship are governed by the 1948 Citizenship Act (concerning the choice to become a Myanmar citizen) and the 1948 Union of Myanmar Citizenship Act, which have been revoked, and the Myanmar Citizenship Law of 15 October 1982, which is still in force.
(c) Laws that provide for freedom of religious belief and religious expression
38,. Both the 1947 and 1974 Constitutions contained adequate provisions for all citizens to profess the religion of their choice. Although the two Constitutions have become inoperative, the fact that many national races of different faiths in Myanmar have lived together in amity and harmony for a long time and that the four major religions have existed and flourished in peace is an eloquent testimony to the existence of religious freedom in Myanmar.
39. People of Islamic faith have never been subjected to persecution, torture or discrimination in Myanmar, which is predominantly Buddhist. They have lived harmoniously with the national races of different faiths. The General Secretary of All Myanmar Moulvis Headquarters, in addressing about 350 Muslims who had gathered at the Zafar Shah Mosque in Dagon Township, Yangon, on 24 July 1992, recounted from his personal experience after visiting the border area that there was no persecution of Muslims in Rakhine State. The authorities, for their part, have taken adequate measures in order that the people of Islamic faith are treated on an equal footing with other faiths. For instance, Id al-Adha is designated as one of the official holidays of Myanmar and the religious organizations of Islamic faith are allowed to broadcast their sermons over the Myanmar radio and television on that day. The authorities have never failed to extend necessary facilities to the people of Islamic faith in Myanmar.
40. In February of this year, the Minister for Religious Affairs attended the ceremony held for the laying of cornerstones for the annex to the Muslim Home for the Aged Women of Cholia Muslim Religious Fund Trust. When copies of the Holy Koran imported by the Amin Hawa Waqf were distributed in March of this year to the representatives of various states and divisions, the Minister for Religious Affairs himself honoured with his presence the ceremony held for that purpose. The then-Chairman of the State Law and Order Restoration Council also sent a special message to that ceremony.
41. In May 1992, 200 Hajj pilgrims went to Makkah and the authorities provided the necessary assistance both before and after the pilgrimage.
42. The Chairman of the State Law and Order Restoration Council General Than Shwe on 8 July 1992 sent a message to Myanmar hajjis at the ceremony to honour Hajj pilgrims organized by the Amin Hawa Wagf of the Islamic Religious Welfare Foundation. In his message he stated that "the people of Myanmar Naing-Ngan have enjoyed religious freedom as an inalienable right since the time of their forefathers and so the peoples of the different faiths have been living in unity here because every citizen realizes this very well". At another ceremony, held on 9 July 1992 to honour Hajj pilgrims of 1992 and organized by the Myanmar Muslim National Affairs Organization, the Chairman of the State Law and Order Restoration Council General Than Shwe sent a second message to Myanmar hajjis. In his second message he stated that "Myanmar history shows that all nationals in Myanmar have lived together in weal and woe and enjoyed freedom in the profession of whatever religious faith he or she believes".
43. Myanmar hajjis recounted their experience in Cholia Hall in Pabedan, Yangon, on 25 July. The Chairman of the Myanmar Muslim National Affairs Committee speaking on that occasion spoke of the freedom of religion in Myanmar, citing as an instance the Government's permission for the Hajj pilgrimage to Saudi Arabia. The Myanmar Muslim National Affairs Committee General Secretary also elaborated some points regarding the freedom of faiths in Myanmar and called on those who had fled to Bangladesh not to believe unfounded reports of the foreign media and to come back to their own region.
44. While the authorities in Myanmar are making every effort to fulfil the religious needs of the Islamic faith in Myanmar, Islamic organizations for their part are endeavouring to strengthen friendly ties between the Islamic faith and other religions. One such event took place in Mandalay in March 1992 under the sponsorship of the Myanmar Muslim National Affairs Organization of the Union of Myanmar. It was a get-together of all religions for the Upper Myanmar Zone. The get-together was attended by, in addition to ; the representatives of the sponsoring organization, representatives of Buddhist, Muslim and Hindu organizations, as well as by the Deputy Commander of the Central Command and the Secretary of the Mandalay Division Law and -o?> Order Restoration Council.
45. At the 74th General Meeting of the Myanmar Naing-Ngan Christian Council, held in conjunction with a get-together to honour the Minister for Religious Affairs, Maj.-Gen. Myo Nyunt, held in May 1992 at Myanmar Naing-Ngan Institute of Christian Theology on Seminary Hill in Insein Township, the Chairman of the Christian Council thanked the State for religious freedom in the country.
46. The Minister for Religious Affairs, speaking on that occasion, said that all citizens were free to profess the religion of their choice, practise and preserve their own language, literature, traditions and customs and culture and to make efforts for their own religious code of conduct and ethics to flourish. He also pointed out that the Government was at present providing all-round assistance to all the religions and was also helping to solve their problems. He said that monetary assistance was also provided to Christians like the rest of the people of other religions. He also disclosed that books on Christian religious literature were permitted to be published in accordance with policy and that religious meetings, discussions and training courses were permitted to be held.
47. At a Hindu traditional ceremony of offering Mingaladipa lights of Goddess Lakshmi held in Yangon on 26 July 1992, the Minister for Religious Affairs, who attended the ceremony, stated that the Government was providing monetary assistance to support Hinduism and that the Religious Affairs Department was making arrangements for Hindu religious activities. He stated on that occasion that freedom to profess the faith of one's choice enjoyed by all nationals in Myanmar and the assistance provided by the Government were an offshoot of "metta" (loving kindness).
(d) Reasons for the flow of Muslim people from Rakhine
State to
48. Since the first Anglo-Myanmar War in 1824 Muslims of Bengali stock had entered Rakhine State illegally from across the border. After annexation of Myanmar Naing-Ngan the British Administration adopted a policy of liberalizing immigration regulations in order to import labour from India to Myanmar with the result that there was an exodus of people from the Indian subcontinent to settle in Myanmar. Over the course of years, the number of such immigrants increased, culminating in illegal settlements creating problems for the local populace. Recently the immigration officials conducted routine checking of the national registration cards in the area. Those who did not want to submit themselves to examination of their registration cards fled to the other side of the border. Among those who fled were mostly poor people who were lured by stories that relief food and goods were being distributed on the other side. Some left because they had been threatened by terrorist insurgents to burn down their houses. There were also those who left after having committed crimes.
(e) Aggravation of the problem
49. The problem was exacerbated in 1991 by the broadcasts made by the BBC and the Voice of America and by certain foreign media that carried exaggerated and distorted news concerning the situation at the Rakhine-Bangladesh border. In addition, some people with biased views, within and outside the country, also spread false and exaggerated news, creating a wedge not only between Myanmar and Bangladesh but also among the Muslim community, thereby aggravating the problem.
(f) Bilateral
solutions undertaken by the Government of Myanmar to stop the movement of these
people to
50. Myanmar has faithfully carried out the Myanmar-Bangladesh Agreement on Border Arrangements and Cooperation of December 1980 and the Border Ground Rules.
51. In keeping with the Agreement, border area supervision bodies were formed to prevent undesirable incidents on the border. The agreed rules govern border-crossing, black-marketeering and illegal trading and subversive activities, hot pursuit of insurgents across the border and so on. On 7 February 1981, the Government of Myanmar issued procedures to be followed regarding Myanmar-Bangladesh border affairs. Therefore, an adequate mechanism is in place to tackle bilaterally any problem that may arise between the two countries.
52. In November 1991, the Bangladesh Foreign Minister Mostafizur Rahman visited Myanmar to discuss the problem of those who had fled to Bangladesh and all related aspects of the matter with Foreign Minister U Ohn Gyaw.
53. The slander campaign by foreign public media was stepped up perceptibly, especially after the visit of the Bangladesh Foreign Minister, prompting Myanmar authorities to respond to their biased and unsubstantiated reports and broadcasts. On 16 January 1992 and on 21 February 1992, the Ministry of Foreign Affairs issued press releases to put the matter in its true perspective (annex H). On 19 March 1992, Minister for Foreign Affairs U Ohn Gyaw held a special press conference regarding the Myanmar-Bangladesh border situation and explained the true situation at the border as well as Myanmar's stance on the matter (annex I).
54. On 29 March 1992, the Minister for Foreign Affairs and the Deputy Minister for Information took foreign ambassadors, military attaches and foreign journalists on a fact-finding mission to the Myanmar-Bangladesh border area to enable them to witness the real situation prevailing there. The ambassadors, military attaches and journalists met with the local populace from 14 villages of Kyeinchaung Village Tract and raised questions concerning the situation in the area, freely and frankly.
55. The United Nations Under-Secretary-General for Humanitarian Affairs, Mr. Jan Eliasson, visited the Myanmar-Bangladesh border area in April 1992. Mr. Eliasson and his party met with the local populace and studied the situation in the border area firsthand.
56. In April 1992, a Myanmar delegation led by the Minister for Foreign Affairs U Ohn Gyaw visited Dhaka and held discussions with the Bangladesh delegation headed by Foreign Minister Mr. Mostafizur Rahman on the problem of refugees who had fled to Bangladesh from Rakhine State. The following are the salient points of the agreement reached (please see annex J for the joint statement):
(a) The two sides reiterated their firm conviction of the need to resolve the problem amicably and peacefully through bilateral negotiations on the basis of mutual understanding/ accommodation, trust and goodwill and to maintain peace and tranquillity on their borders;
(b) Repatriation in batches of all persons, inter alia, carrying Myanmar citizenship identity cards/national registration cards; those able to present any other documents issued by relevant Myanmar authorities; and all those persons able to furnish evidence of their residence in Myanmar such as addresses or any other relevant particulars;
(c) Both sides agreed that repatriation should be safe and voluntary;
(d) The two Governments agreed to take all necessary measures to enhance security and tranquillity in their borders in full compliance with the Agreement on Border Arrangements and Cooperation (Border Ground Rules) signed by the two countries in 1980.
(g) How many persons have returned or been repatriated to
Myanmar from
57. In accordance with the Agreement reached between Myanmar and Bangladesh in April 1992, five reception camps have been opened since 15 May 1992 in Maungdaw Township.
58. On 22 September 1992, nine families, consisting of 25 men and 21 women, were repatriated for the first time at Kanyin Chaung Camp on the Myanmar side. On 1 October 1992, two women were repatriated. On 12 October 1992, 34 men and 29 women were sent back to Kanyin Chaung Reception Camp. Thus a total of 111 persons have so far been repatriated.
(h) Aid provided by the Government of Myanmar to those
people who have returned to
59. Medical examinations as well as necessary medical treatment were given to those who returned. Relief goods, food, clothing, pots, pans and plates were also distributed to them. Arrangements are being made for their safe return s to their homes.
E. Other recent steps taken by the Government of Myanmar in the field of human rights
60. The recent steps undertaken by the Government to create an atmosphere and conditions conducive to the establishment of a democratic system in Myanmar include the following:
(a) The suspension of all offensive operations in Kayin State and other parts of the country to consolidate national solidarity and unity;
(b) The release from detention and the lifting of restrictions of individuals against whom action had been taken under existing laws and who no longer pose a threat to the security of the country;
(c) The reopening of universities, colleges and other institutes of ' higher learning that had been temporarily closed;
(d) The rescinding of the curfew order in the entire country;
(e) The revocation of the Martial Law Order that had been in force since July 1989;
(f) The reconstitution of township-level Law and Order Restoration Councils that are responsible for local administration with civilian service personnel in anticipation of the future democratic administrative structure;
(g) The creation of a separate Ministry of Development of Border Areas and National Races in order to implement more effectively measures for the welfare of the national races living in the remote regions of the country.
************************************************************************************************************************************************************************************************************************************************
UNITED NATIONS
General Assembly
Distr.GENERAL
A/48/578
ORIGINAL: ENGLISH
Forty-eighth session
Agenda item 114 (c)
HUMAN RIGHTS QUESTIONS: HUMAN RIGHTS SITUATIONS AND REPORTS OF SPECIAL RAPPORTEURS AND REPRESENTATIVES
Situation of human rights in
Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the General Assembly the interim report prepared by Professor Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with paragraph 16 of the Commission on Human Rights resolution 1993/73 of 10 March 1993 and Economic and Social Council decision 1993/278 of 28 July 1993.
ANNEX
Interim report on the situation of human rights in Myanmar prepared by Professor Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1993/73 and Economic and Social
Council decision 1993/278
CONTENTS
Paragraphs
I. INTRODUCTION 1-11
II. MEMORANDUM OF ALLEGATIONS TO THE GOVERNMENT OF MYANMAR 12
A. Arbitrary detention
B. Torture, cruel, inhuman or degrading treatment
C. Disappearances
D. Summary or arbitrary execution
E. Repatriated Muslims from Northern Arakan State
F. Labour rights
G. Rights of the child
H. The National Convention
I. Rights devolved from citizenship status
J. Steps to improve the human rights situation
K. Social, cultural and economic rights
III. INFORMATION RECEIVED SUBSEQUENT TO THE MEMORANDUM OF ALLEGATIONS OF
30 SEPTEMBER 1993 13-25
A. Arrests and detention 13-14
B. Courts and trials 15-19
C. Law Safeguarding the State against Dangers of Subversive Elements 20-22
D. Repatriation of Muslims of Myanmar 23-24
E. Social and economic rights 25
IV. RESPONSE BY THE GOVERNMENT OF MYANMAR TO THE MEMORANDUM OF THE SPECIAL RAPPORTEUR 26
A. Arbitrary detention
B. Matters concerning arrests or detention and trial of cases
C. Disappearance
D. Summary or arbitrary executions
E. Repatriated Muslims from Northern Arakan State
F. Labour rights
G. Forced portering and forced labour
H. Rights of the child
I. The National Convention
J. Rights devolved from citizenship status
V. PRELIMINARY OBSERVATIONS 27-52
I. INTRODUCTION
1. On 10 March 1993, at its forty-ninth session, the Commission on Human Rights adopted resolution 1993/73 entitled "Situation of human rights in Myanmar" without a vote. In paragraph 16 of the resolution, the Commission decided to extend for one year the mandate of the Special Rapporteur to establish or continue direct contacts with the Government and the people of Myanmar, including political leaders deprived of their liberty, their families and their lawyers, and requested him to report to the General Assembly at its forty-eighth session and to the Commission at its fiftieth session. The present report, which was finalized on 26 October 1993, is being presented in accordance with that request.
2. In that resolution, the Commission noted the visit of the Special Rapporteur in December 1992 and deplored the continued seriousness of the situation of human rights in Myanmar, in particular the fact that a number of political leaders, including Daw Aung San Suu Kyi and other leaders of the National League for Democracy, remained deprived of their liberty, and that in spite of the provisions of Commission resolution 1992/58 of 3 March 1992 requesting the Myanmar authorities to extend their full and unreserved cooperation to the Special Rapporteur, he was denied access to some persons, in particular detainees, including Daw Aung San Suu Kyi, and that a number of persons wishing to provide testimony were subjected to intimidation or harassment.
3. In the resolution the Commission expressed its deep concern at the violations of human rights in Myanmar, which remained extremely serious, in particular those concerning the practice of torture, summary and arbitrary execution, forced labour, including forced portering for the military, abuse of women, politically motivated arrests and detentions, the existence of important restrictions on the exercise of fundamental freedoms and the imposition of oppressive measures directed, in particular, at minority groups which have resulted in flows of refugees towards neighbouring countries and the absence of guarantees for the physical integrity and well-being of returnees to Myanmar.
4. The Commission also noted with concern that the meetings of the National Convention to prepare the basic elements for the drafting of a new constitution have excluded most of the representatives duly elected in 1990 and that one of the objectives of the Convention has been to maintain the participation of the armed forces (Tatmadaw) in a leading role in the future political life of the State.
5. The Commission urged the Government to take every appropriate measure to allow all citizens to participate freely in the political process in accordance with the principles of the Universal Declaration of Human Rights and to accelerate the process of transition to democracy, in particular through convening the Parliament elected in May 1990, lifting restraining orders placed on a number of political leaders, releasing those who are detained, ensuring that political parties can function normally and lifting restrictions on the right of association and assembly, as well as the right to freedom of opinion and expression, to restore the protection of persons belonging to minority groups especially in the framework of citizenship laws and to put an end to violations of the right to life and integrity of the human being, to the practices of torture, abuse of women, forced labour, enforced disappearances and summary executions.
6. At its substantive session of 1993, the Economic and Social Council adopted decision 1993/278 approving Commission resolution 1993/73.
Visit to Myanmar by the Special Rapporteur
7. In September 1993, the Special Rapporteur addressed a letter to the Government of Myanmar requesting to visit the country from 9 to 16 November 1993. He requested the honour of audiences with high governmental officials, meetings in circumstances providing full confidentiality with political leaders, including those in detention or under restriction, and in particular with Daw Aung San Suu Kyi. The Special Rapporteur further requested full and free access to all individuals, non-governmental and intergovernmental, whom he may deem necessary to the carrying out of his mandate or who express the will to meet with the Special Rapporteur. Visits to prisons and other centres of detention, with confidential contact with those detained, were also requested.
8. The Special Rapporteur also requested full access to other areas of the country, in particular Rakhine State for the purpose of carrying out unrestricted and confidential visits with the recent repatriates and returnees.
9. By a letter dated 15 September 1993, the Government replied that the Special Rapporteur would be welcome in Myanmar.
10. By a letter dated 8 October 1993, the Government further replied that the proposed dates for the visit of 9 to 16 November 1993 would be agreeable.
11. The Special Rapporteur also foresees carrying out a visit to Thailand from 16 to 20 November 1993.
II. MEMORANDUM OF
ALLEGATIONS TO THE GOVERNMENT OF
12. By a letter dated 30 September 1993 to the Minister for Foreign Affairs of the Union of Myanmar, the Special Rapporteur transmitted the following memorandum of allegations received by him of human rights violations reported to have occurred in Myanmar:
"A. Arbitrary detention
"1. In regard to arbitrary detention, the Special Rapporteur welcomes reports that over 1,700 persons detained under the emergency regulations have been released since April 1992.
"2. Allegations have nevertheless been received that under the persistent State Law and Order Restoration Council (SLORC) orders and other emergency decrees, numerous persons have been arrested for criticizing SLORC, the army (Tatmadaw) or for openly criticizing the process being undertaken in the National Convention for the drafting of a new constitution and the transfer of power to a civilian government. Reports indicate that up to 60 persons may have been detained since July 1993 for engaging in political activity although many of these have now been released.
"3. Some persons were reportedly detained without charges, while others have reportedly been sentenced to lengthy terms in trials which did not afford the minimum standards of judicial guarantees as set out under articles 10 and 11 of the Universal Declaration on Human Rights. In this regard, it has been alleged that in December 1992 the following persons were arrested for printing and distributing leaflets criticizing the National Convention: U Aung Myint, aged 57, Daw Khin Mar Aye, aged 53, and Htay Myint (alias Khin Soe), aged 37.
"4. In January 1993, 14 persons were allegedly arrested for having distributed leaflets which were, according to the Government, 'aimed at obstructing the National Convention and undermining peace and tranquillity in the country'. In August, Dr. Aung Khin Sint, the elected NLD representative for the Mingala Taungnyunt-1 constituency and his assistant, U Than Min, were allegedly arrested for being 'engaged in unscrupulous activities with intent to undermine the National Convention'.
"5. The Special Rapporteur has received allegations of arrests of the following persons in the Yangon area in August 1993 in connection with the National Convention: Ma Thi Da; Nay Thin Myint; Bo Lay; Thet Oo; Tin Htune; Khin Maung; Kyaw Than; Kyi Myint and Than Min.
"6. These persons are allegedly being detained in Insein prison. It is not known if formal charges have been drawn or if a minimum level of judicial guarantees has been accorded. It is also not known if the families of these persons have been notified.
"7. Other reports have been received, in some cases supported by photographic evidence, of large portions of entire villages being detained for 'defying Governmental authority' by having refused displacement or, as in the case of over 100 villagers in the Irrawaddy Delta, for refusing to turnover rice crops to the military.
"8. The Special Rapporteur would appreciate the Government providing information regarding the detained persons described above, their places of detention, the formal charges lodged against them, the judicial guarantees accorded them before, during and after trial, the sentences received and whether these persons are allowed regular visits by their families and legal counsel.
"B. Torture, cruel, inhuman or degrading treatment
"9. Extensive allegations have been received that torture and other cruel, inhuman or degrading treatment has continued to be used by the Myanmar army (inter alia, the 99th Light Infantry Division and the 301st Battalion), police and intelligence services, that such practices have been used routinely in the interrogation of persons and the treatment of porters, forced labourers and members of ethnic minorities. It has been alleged that the practices in prisons include poor sanitary conditions, shackling, beatings, sleep, food and water deprivation, electric shock, the use of falanga, near suffocation and psychological torture, including threats of death to the individual and his family.
"10. In the context of military operations, forced relocation, portering and forced labour, the practices allegedly involve the carrying of heavy supplies up mountains and in extreme weather conditions, beating, stabbing, pouring salt or other toxic material into open wounds, drowning, rape, burning and mutilation before execution. It has also been alleged that men, women and adolescents of ethnic minorities continue to be used as mine sweeps and to be forced to precede army battalions so that they will not be attacked by opposition forces.
"11. Please respond to these allegations, indicating what steps have been undertaken to comply with the prohibition against these practices as encompassed by article 5 of the Universal Declaration of Human Rights, article 3 common to the Geneva Conventions of 1949, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly resolution 43/173 of 9 December 1988) and the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (General Assembly resolution 3452 (XXX) of 9 December 1975). Please indicate whether dissemination of these principles within the operational security forces has been undertaken. Please detail any independent or Government investigations which may have been carried out in regard to these allegations, whether any military or security personnel have been tried and sentenced, dismissed from duty or otherwise disciplined for their part in any established violations.
"C. Disappearances
"1. Disappearance after mass demonstrations and in connection
with the National Convention
"12. Since he was appointed in March 1992, the Special Rapporteur has continually 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 new township, Hlaing Thaya.
"13. Several friends and relatives of missing persons told the Special Rapporteur during his visit to Myanmar that they had not been able to transmit cases to him or to the Working Group on Enforced or Involuntary Disappearances because of a lack of knowledge of the available international mechanisms, a lack of experience in preparing the information for cases and a serious concern for their own physical safety.
"14. It has been reported that many of the persons detained recently for their activities in connection with the National Convention have been held in incommunicado detention and that generally these detentions remain unacknowledged for at least a period of time after the detention.
"15. Please indicate whether any steps have been taken by the Government to investigate the whereabouts of the alleged missing persons; if there are any institutions or Governmental organs set-up to address the question of disappearances, whether any legal or administrative procedures for the purpose of clarification (such as habeas corpus) are available to the relatives of missing persons, the number of times these remedial procedures have been used and to what effect. Please indicate whether any regulations exist requiring security forces and/or those responsible for prisons or other detention centres to maintain a register and to report the particulars of all persons under detention.
"16. Please indicate whether there is a prohibition under law against unacknowledged or incommunicado detention and whether certificates of death are required by law, whether the cause of death is mandatory on the certificate and if the certificate is accessible to the relatives of the deceased.
"2. Disappearance in the context of forced portering
"17. Other reports continue to be received of persons disappearing after having been abducted by the army throughout the country to function as porters for the army or as labourers on construction projects.
"18. Please comment on these general allegations indicating whether security force personnel are under an obligation to report to their superiors or to an administrative body the names of all persons detained by them or placed under their custody for whatever reason.
"D. Summary or arbitrary execution
"19. As noted in his report to the Commission on Human Rights at its forty-ninth session, the Special Rapporteur welcomed the fact that all death sentences have been commuted to life imprisonment. 1/ Reports however, of extra-judicial executions have been continually received since the 1992 visit to Myanmar by the Special Rapporteur. These have allegedly been carried out particularly against ethnic minorities. In 1993, the Tatmadaw did not launch a dry-season offensive, yet extra-judicial executions by the Tatmadaw of hundreds of ethnic civilians were reported to have taken place outside areas of conflict.
"20. The reports focused on executions of civilians accused of being insurgents or of providing aid to insurgents, of civilians in one village as retaliation for attacks on the Tatmadaw in another area, of whole families or even entire villages that resisted relocation. In other cases, some persons were allegedly executed when they resisted becoming porters for the army or labourers on military construction projects. Some village head-men were also reportedly executed for not providing the requisite number of porters or labourers as demanded by the army.
"21. Among the allegations received were the extra-judicial executions of scores of Mon persons resisting relocation in five villages in Yebyu Township in February 1993 and in seven villages in Thanbuzayat Township in March 1993. Eye-witness accounts were received from Klaingbwe Township of retaliation killings of Kayin people and from Kyauk Kyi Town, in Nyaunglebin District, Pegu Division, of Kayin persons resisting relocation. In this case, the allegations were consistent with the copies of relocation orders allegedly issued by the army, which were received by the Special Rapporteur.
"22. Eye-witness accounts from Papun, Pa'an and Thaton Districts are consistent in alleging that hundreds of Karen villagers were shot or beaten to death by the Tatmadaw, including children and persons over the age of 65 accused of being insurgents, many while portering, refusing to relocate, refusing to give rice, livestock or money to the army, for escaping rape or in retaliation for or in lieu of another family member or villager.
"23. The Special Rapporteur has also received allegations that similar extra-judicial executions of the Shan and Kayah ethnic groups are taking place and that extra-judicial executions of hundreds of Myanmarese Muslim porters continue.
"24. The Special Rapporteur would appreciate receiving information describing any investigations into these allegations undertaken by the Government. Please detail any steps taken internally by the military or by the civilian authorities, legal or otherwise, to prevent or curtail the occurrence of extra-judicial executions in contravention of article 3 of the Universal Declaration of Human Rights and article 3 common to the Geneva Conventions. Please indicate whether any military personnel have been tried and sentenced, dismissed from duty or otherwise sanctioned for their part in any verified violations, if the Code of Criminal Procedure provides for sanctions for these violations, what remedies it may provide for the relatives of the victims and if any such petitions have been brought and to what effect.
"E. Repatriated Muslims from Northern Arakan State
"25. It is reported that over 35,000 Myanmar Muslims have now been repatriated or returned, the most recent of these repatriations with the participation of the United Nations High Commissioner for Refugees screening for the voluntary character of the repatriations. Reports concerning the status of the repatriated persons assert that they have not been allowed to return to their villages of origin and have been forcefully resettled in villages prepared by the Government.
"26. It is further reported that their residency and/or nationality status remains unclear, that most have not received identification cards and therefore are not free to travel, enrol in learning institutions or reportedly, in some cases, apply for jobs. It has been alleged that they are segregated from other groups and are not allowed to travel freely.
"27. Reports continue to be received of wide-scale forced recruitment of Muslims from Arakan State for portering and labour.
"28. Please comment on the above-mentioned allegations indicating in detail the sites of resettlement, what the nationality and/or residency status is of the returnees and repatriates and what rights under law are applicable to them.
"F. Labour rights
"29. In regard to International Labour Organization (ILO) Convention No. 87 on Freedom of Association and Protection of the Right to Organize of 1948, which was ratified by Myanmar in 1955, the following comments and observations made during the course of the eightieth session of the ILO Committee on the Application of Standards, held at Geneva in June 1993.
"30. A Government representative stated the position of the Government that the purpose of the National Convention for the drafting of a new constitution was to lay down the basic principles (of a new constitution) that would ensure fundamental rights, including those of workers. After the emergence of the new constitution, various laws would have to be reviewed so as to be brought into line with it. However, during the transitional period, the workers' rights were being ensured by the legislation still in force. At the same time, labour laws reflecting the democratic principles pertaining to workers had been drafted.
"31. He stated that new labour laws reflecting the principles of the Convention, to which the Government had referred in last year's report, and which replaced old ones concerning the formation of workers' organizations, had been submitted to the appropriate authorities and were now under consideration. His Government would inform ILO in due course of progress in the framing of the new Constitution and the new labour laws.
"32. The Government representative opposed the allegation that elected representatives had been imprisoned and stated that the single trade union no longer existed and that steps had been taken to adopt legislation which would take into account the principles of freedom of association. The Government representative also stated that the 'so-called trade union operating on the border areas was a creation of terrorist groups outside the territory of Myanmar and did not represent any worker in Myanmar'.
"33. The workers were of the opinion that there still was no freedom of association in the country and that there was hardly any trade union movement; trade unionists who criticized the Government were allegedly imprisoned. It was further noted that the members of Parliament freely elected in May 1990 had not been allowed to convene and that many were in prison, had been disqualified or had fled the country.
"34. It was pointed out that the extant legislation (1976), which the Government representative had cited as being in force during the transitional period, provided for a monopoly of trade union rights as well as for a monopoly of the practice of trade union activities, which represented a 'clear infringement of the Convention'. The arrest of some labour activists was pointed out, as well as the continued practice of forced labour.
"35. Please indicate what measures have been taken to comply with the obligations undertaken under ILO Convention No. 87 and explain what workers rights are protected under the present legislation and what lawful trade unions or other syndicates presently exist. Further indicate, please, if the right of five or more persons to congregate and associate freely is presently protected under law. Please indicate what measures have been taken to comply with the obligations under ILO Convention No. 29 prohibiting the practice of forced portering and other forced labour, what prohibition against forced portering or labour exists under the present law and what rights of redress are available to alleged victims of such practices. Please indicate the number of times that these procedures for redress have been resorted to and to what effect.
"G. Rights of the child
"36. In 1989, Myanmar became a party to the Convention on the Rights of the Child. At the time of its ratification, a number of understandings and reservations were deposited pertaining to article 37 thereof on the prohibition of torture, cruel, inhuman or degrading treatment in regard, inter alia, to the treatment of children during interrogation. In his report to the Commission on Human Rights at its forty-ninth session, the Special Rapporteur recommended that the Government consider withdrawing its reservations and understandings to article 15 of the Convention on the Rights of the Child regarding freedom of association and to article 37 regarding the prohibition of torture of minors. 2/
"37. Please indicate what steps have been taken in response to those recommendations.
"H. The National Convention
"38. In regard to the National Convention, it has been reported that of the 702 delegates from 8 categories of people, 49 were selected by the 10 political parties remaining after the elections, 106 were elected representatives and the remainder of the delegates from the other six categories were chosen by the State Law and Order Restoration Council (SLORC).
"39. It has been further reported that the draft principles or guidelines for discussion during the Convention were to remain within a framework of the following objectives: (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 the Tatmadaw in a leadership role in the national politics of the future; and that this framework for discussion was determined by SLORC and that the discussions were to remain exclusively within these guidelines. Wearing badges, distributing leaflets or disseminating propaganda were reportedly prohibited.
"40. It has been further reported 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 (U Tha Zan Hla) was from the National League for Democracy (NLD), the party that won the majority in the May 1990 elections. In the elected representatives group, where 89 of the remaining 105 delegates were from NLD, no NLD representatives were selected as chairmen.
"41. It has been further alleged that since the beginning of the National Convention, numerous participants have been disqualified or arrested for allegedly contravening these guidelines and particularly for having questioned the leadership role foreseen for the Tatmadaw. When the Convention reconvened in June 1993, statements were allegedly read out by Chairman Major General My Nyunt and U Aung Toe to the effect that, there should be a strong President who should be able to carry out his responsibilities 'without constraints' in working for the development of the country, and that this person should be 'an indigenous citizen who is loyal to the nation and its citizens'. Several persons have allegedly since been arrested for challenging these concepts, and some have been charged with participating in activities intending to undermine the National Convention (see paras. 1-8 above).
"42. The Special Rapporteur would appreciate information from the Government regarding these allegations, indicating what steps have been taken to comply with the results of the elections of May 1990.
"I. Rights devolved from citizenship status
"43. Information received by the Special Rapporteur has indicated that the citizenship laws of Myanmar are unclear, vague, inconsistent, inaccessible to the public and inequitably applied. 3/ Inability to obtain nationality or not belonging to one of the many tiers of residency status applied throughout Myanmar, have allegedly excluded entire groups, particularly from the ethnic minorities, from enjoying a range of civil, political, social, cultural and economic rights and protections.
"44. Among the rights allegedly rendered inaccessible, is the right to education. The right of every citizen to education was incorporated into the 1974 Constitution. Under the 1980-1981 regulations of the Ministry of Education regarding access to university, the applicant must satisfy four requirements: being a 'Burmese National'; passing prescribed exams; having a 'good character'; and being in good health. These requirements have allegedly been used to ban students disapproved of by the authorities. Particularly cited as being singled out for such discrimination are the ethnic Indians, Bangladeshi and Chinese, even when they, and at times even their parents, were born in Myanmar. Only those with full citizenship are reportedly allowed to prepare for certain higher professional careers, including medicine and technology. Ethnic minority students have also reportedly found it difficult or impossible, particularly without proper identification cards, to travel to the major cities to attend institutions of higher learning.
"45. The Special Rapporteur would appreciate information from the Government delineating the differences among the various nationality and residency statuses and the corresponding rights and obligations.
"J. Steps to improve the human rights situation
"46. The Special Rapporteur would appreciate receiving information regarding any steps taken by the Government to improve the situation of human rights in Myanmar since his last visit.
"K. Social, cultural and economic rights
"47. Please detail any steps taken by the Government to increase the enjoyment of the social, cultural and economic rights of the people of Myanmar including any recent economic developments which the Government may wish to bring to the attention of the Special Rapporteur."
III. INFORMATION RECEIVED SUBSEQUENT TO THE MEMORANDUM OF ALLEGATIONS OF 30 SEPTEMBER
A. Arrests and detentions
13. Information was received regarding the arrests of 14 persons in connection with the National Convention. The Special Rapporteur on the situation of human rights in Myanmar and the Chairman of the Working Group on Arbitrary Detention transmitted, on 12 October 1993, to the Minister of Foreign Affairs of Myanmar, the following letter regarding these arrests and the trials of some of those arrested:
"We have the honour to address you jointly in our respective capacities as Special Rapporteur on the situation of human rights in Myanmar and as Chairman-Rapporteur of the Working Group on Arbitrary Detention, appointed by the Commission on Human Rights in its resolutions 1993/73 and 1991/42 of 5 March 1991, respectively.
"In this connection, we wish to draw your attention to information we received regarding the following persons:
1. MA THI DA NLD Member
2. U KHIN MAUNG NLD representative from Kyu Athada
3. U KYI MYINT NLD representative from Latha
4. U KYAW THAN NLD representative
5. U LWIN OO NLD representative from Kyu Athada
6. U WIN KYI NLD representative from the Third Kamandeen
7. NE THIN MYINT NLD member
8. BO LAY Student
9. THET OO Student
10. NE WIN Student
11. U THIN THUN National Convention Representative
12. U HAN SIEN National Convention Representative
13. MYU WIN
14. THAN MYIN
"It has been brought to our attention that the above-mentioned persons were allegedly arrested on or about 3 September 1993 and detained at Insein Prison on charges of: (a) printing material without a permit; (b) distributing illegally printed matter; (c) committing acts against State security and, in the case of Ma Thi Da, for maintaining contacts with illegal organizations.
"It has further been reported that Ma Thi Da and Myu Win were brought to trial, the latter on 7 July 1993 where he was subsequently sentenced to a five-year term of imprisonment. The other above-cited persons are reportedly to stand trial beginning on 11 October 1993.
"Without in any manner wishing to prejudge the decision eventually to be taken by the Working Group as regards the arbitrary character or otherwise of the arrest and detention of the above-mentioned persons, we should like to appeal to your Government to do its utmost to ensure that the judicial guarantees provided for by the Myanmar Penal Code and the Code of Criminal Procedure and applicable to all persons detained for the Commission of a crime for which the punishment may be imprisonment for more than one year, and the relevant international standards, be applied to the above-mentioned persons, in particular the rights to be formally charged, to be informed of the charges being brought, to be defended by a counsel of his own choosing, to be granted a just and fair trial by a competent court and to have the right to appeal to a court in which a fair and impartial judgement may be held.
"In regard to the minimum basic international standards for judicial guarantees, we would like to recall in particular those embodied in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
"It would be most appreciated if your Government could provide us forthwith with any information concerning the legal situation of the above-mentioned persons."
14. In this regard, the following information on the laws relevant to the above-mentioned cases had been provided during the previous reporting period by the Government of Myanmar:
(a) Under section 61 of the Code of Criminal Procedure, no police officer shall detain in custody a person arrested without warrant for a period longer than 24 hours in the absence of a special order of a magistrate under section 167;
(b) If the investigation cannot be completed within this period, and it appears there are grounds to believe that the accusation or information is well-founded, the dossier of the case and the arrested persons are to be presented to the magistrate. For offences punishable with up to seven years, the person may be held for a period of up to 15 days. For offences where the term of imprisonment may be for more than seven years, the person may be held for a period of up to 30 days;
(c) Under paragraph 1198(3) of the Myanmar Police Manual, while under detention, a person is entitled to meet with and seek advice from a lawyer and is to have access to his family.
B. Courts and trials
15. The courts in Myanmar are constituted under the Judiciary Law of 1988. Under this law, appeals and revisions of the order and judgement of a court are permitted.
16. The administration of justice in Myanmar is based on the following principles:
(a) Administering justice independently according to law;
(b) Protecting and safeguarding the interests of the people and aiding in the restoration of law and order and peace and tranquillity;
(c) Educating the people to understand and abide by the law and cultivating in the people the habit of abiding by the law;
(d) Working within the framework of law for the settlement of cases;
(e) Dispensing justice in an open court unless otherwise prohibited by law;
(f) Guaranteeing in all cases the right to defence and the right of appeal under the law;
(g) Aiming at reforming moral character in meting out punishment to offenders.
17. After the 15- or 30-day investigatory period, a case must be sent to trial. Under section 340 of the Code of Criminal Procedure, a person has the right to engage a lawyer for his defence if he has not done so during the investigation by the police. The accused may apply for bail.
18. Cases are categorized as either summons cases or warrant cases. Summons cases are generally not of a serious nature and are punishable by a term of not more than six months. These cases are generally adjudicated within one day.
19. Warrant cases are those related to an offence punishable by death (although in December 1992, the Government commuted all death sentences to a life term), transportation (commutation) or imprisonment for a period of more than six months. The procedure for these cases is contained in Chapter XXI of the Code of Criminal Procedure. The case of the prosecution is heard first. Then the defence may be heard. There is a right to recall and cross-examine witnesses, all evidence should be taken in the defendant's presence or in some cases, when this right is dispensed with by the Code of Criminal Procedure, in the presence of the defendant's counsel. A language understood by the defendant must be used, and all proceedings must be recorded by the court. There is a right to not self-incriminate and there is no double jeopardy section (403). There is also the right to appeal.
C. Law Safeguarding the State against the Dangers of Subversive Elements
20. The Law Safeguarding the State against the Dangers of Subversive Elements was enacted in 1975. 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, the Council of Ministers has formed a Central Body consisting of the Minister for Home Affairs, the Minister for Defence and the Minister for Foreign Affairs. These policies and guidelines to be adhered to in restricting the fundamental rights of citizens are laid down in section 9 of the law.
21. The Central Body is imbued with the following powers:
(a) Arresting and detaining a person against whom action is taken for a period not exceeding 60 days at a time, for a total of up to 180 days;
(b) Restraining a person against whom action is taken for up to one year.
22. 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, for a total of up to five years. Restrictions as to movement, residence and possession of articles is permitted under this law.
D. Repatriation of
Muslims of
23. The Special Rapporteur has been informed that through recent discussions between the Government of Myanmar and the United Nations High Commissioner for Refugees, it has been agreed, in principle, that the United Nations Office of the High Commissioner for Refugees (UNHCR) will soon be allowed to establish a presence in the Rakhine State. The purpose of the presence of UNHCR will be to assist and coordinate the voluntary repatriation and safe resettlement of the persons from Myanmar returning from the UNHCR-assisted camps in Bangladesh.
24. Other information received regarding the situation of repatriated persons includes reports that in some cases the returnees have been allowed to go back to their original villages. Other reports indicate that some of the villages, largely built of mud, disintegrated during the absence of the inhabitants, and that for this reason, they have in some cases, taken up residency in other villages. Still other reports indicate that during the absence of these persons, some of their homes and villages were appropriated by the military or others from the Rakhine State, and thus, upon their return, some of the Muslims of Myanmar were forced to take up alternative residency.
E. Social and economic rights
25. The Special Rapporteur has been informed that all schools and institutions of higher learning have now been reopened and have remained open throughout the normal term.
IV. RESPONSE BY THE GOVERNMENT OF MYANMAR TO THE MEMORANDUM OF THE SPECIAL RAPPORTEUR
26. By a note verbale dated 17 October 1993, the following response was received from the Government of Myanmar to the memorandum of allegations of the Special Rapporteur:
"A. Arbitrary detention
"Reference to paragraph 2
"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.
"Reference to paragraphs 3 and 4
"2. Legal Action was taken against the following persons:
(a) Dr. Aung Khim 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 [Associations] 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 maintenance of public law 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
(b) Than Min (alias) Tin Tun Aung
(c) Thet Oo
(d) Ko Lay (alias)Aung Naing Oo
(e) Nay Win (alias)Nay Tin Myint
(f) Lwin Oo
(g) Kyaw Than
(h) Ma Thida
(i) Han Sein
(j) Kyi Myint
(k) Tin Tun (alias) Rashid
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Name of defendant
Charges
(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 Secret Act. Section 5 (1) (4)
He infringed the above Law by making use of an official document in committing the above-mentioned illegal acts.
---------------------------------------------------------------------------
"B. Matters concerning arrests or detention and trial of cases
[The Government of Myanmar also included in its report an explanation of the pertinent laws regarding arrests or detention and trial of cases. These laws have been summarized in paras. 14 to 22 above.]
"C. Disappearance
"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 that 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.
"8. In the case of the death of any person, it is mandatory to state the cause of death on the death certificate. In cases where the cause of death is not yet known, the police has to forward a report of the case to a magistrate under section 174 of the Code of Criminal Procedure, and the magistrates are empowered to hold inquests under section 176 of the Code of Criminal Procedure to make known the cause of death.
"D. Summary or arbitrary executions
"9. All the 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.
"E. Repatriated Muslims from Northern Arakan State
"10. In pursuance of the agreement reached between the Union of Myanmar and the People's Republic of Bangladesh, repatriation of the Myanmar residents in Bangladesh started on 22 September 1992. For the facilitation of systematic and orderly repatriation, five reception centres, namely, Taungbro, Ngakhura, Pyinphyu, Kanyinchaung and Magyichaung, were established on the Myanmar side on 15 May 1992. Since 22 September 1992, a total of 9,209 households and 41,098 persons, comprising 20,103 males and 20,995 females, were repatriated as at 12 October 1993.
"11. The returnees were resettled in their original villages. They were not sent to other places and were not resettled to the regions other than their own villages or origin. At present, for the development of the country, priority is being given to the development of border areas and national races. In implementing the development programmes, the people in the border areas contributed their voluntary labour of their own accord. It is the custom and culture of indigenous races of Myanmar to give voluntary services in nation-building works.
"12. The State had spent 100 million kyats for the development of border areas and national races in the Buthidaung and Maungdaw regions in Rakhine State. The Muslims in Rakhine State give voluntary services of their own accord to the development of border areas. They were neither forced to serve as porters nor hard labourers. Therefore there are no grounds whatsoever for those complaints. The voluntary services given by the people in the regions were stopped in 1991. After that, delegations of the United Nations, UNHCR and Bangladesh visited the villages of the returnees for first-hand knowledge of the situation.
"13. Without legal permission, no one is allowed to cross the borderline. The Muslims in Rakhine State had crossed the borderline without legal permission.
"F. Labour rights
"14. With regard to the comments and observations made during the course of the 80th Session of the International Labour Conference in the Committee on the Application of Standards held at Geneva in June 1993, the following is a reply to those comments in a question and answer form:
"Q. There continues to be no freedom of association in the country or hardly any trade union movement.
"A. The Government is in no way whatsoever exercising prohibition or restriction in this matter. No restrictive legislation has been promulgated. Many associations are operating such as medical doctors and nurses associations, arts and crafts associations, artists and artistes associations, reporters and journalists associations and the like.
"Q. Trade unionists who criticized the Government were allegedly imprisoned. Members of Parliament freely elected in May 1990 had not been allowed to convene, many were in prison, had been disqualified or had fled the country.
"A. Those who are imprisoned are the people who had committed crimes, not the trade unionists. The allegation does not bear any iota of truth. Only those who had committed crimes were sent to prison, and the criminals and those who breached the law fled to the country so as to escape the legal proceedings and punishment.
"15. As regards the accusation of 'a clear infringement of the Convention', the Government of the Union of Myanmar had already reported and stated at several ILO sessions since 1989 that 'with the abolition of the one-party political system, the Unitary Workers' Organization no longer exists and that the said 1976 legislation organizing the single trade union system has automatically become obsolete'. How can extinct legislation infringe the provisions of the Convention when there is no longer a monopoly of trade union rights and the practice of such activities in a country? Hence, no infringement of the Convention. The Trade Union Act of 1926 is still in existence, and since it has become old, new legislation has been drafted and submitted to the concerned authority for vetting and scrutiny. A new Trade Union Act will come into being in the not too distant future.
"Q. Please indicate:
(a) What measures have been taken to comply with the obligations undertaken under ILO Convention No. 87;
(b) What workers rights are protected under present legislation;
(c) What lawful trade unions or other syndicates presently exist.
"A. (a) The reply to (a) is in the last paragraph (see para. 15 above)
(b) and (c) Workers are enjoying many rights, such as social security, under the Social Security Act, 1954; compensation, under the Workmen's Compensation Act, 1923; leave and holidays, under the Leave and Holidays Act, 1951; welfare, health and safety under the Factories Act, 1951; and other rights under present, existing labour legislation.
"G. Forced portering and forced labour
"16. Concerning the allegation of the continued use of forced portering and forced labour, a brief explanation is required. The International Confederation of Free Trade Unions (ICFTU) had made a representation under article 24 of the ILO Constitution, alleging non-observance of the Forced Labour Convention No. 29, 1930. The Governing Body of ILO considered receivability and the representation was set up, comprising Ms. L. Caron (Government member, Canada), Mr. B. Noakes (Employer member, Australia) and Mr. P. S. Sundaram (worker member, Sri Lanka). On 4 March 1993, the said Committee asked to supply observations on the representation and a statement of observations had been presented to the Committee. The Myanmar delegation to ILO had personally appeared before the Committee in June 1993 and presented a rebuttal. But the Committee further requested detailed information on the matter.
"17. In compliance with the request of the Committee, a detailed report has been prepared after fielding the three independent observation teams to the areas mentioned in the ICFTU allegation to find out the truth of the matter. The areas visited by the independent observation teams were:
"(a) Ok Ta Da Village in Mon State (traced in Paung Township);
"(b) Moe Kaung Village in Mon State (traced in Thaton Township);
"(c) Thein Yazat Village in Mon State (traced in Kyaikto Township);
"(d) Pyu Township in Bago (Pegu) Division;
"(e) Hline Bwe Township, Kayin (Karen) State.
"18. The findings of or the testimonies obtained by the three observation teams revealed that what have been alleged proved to be no better than the preconceived fabrication of false accounts intended to invite misconception and misunderstanding. A detailed statement to that effect is to be presented to the above-mentioned Committee of ILO very soon.
"H. Rights of the child
"19. In acceding to the Convention on the Rights of the Child in July 1991 the Union of Myanmar had made reservations relating to articles 15 and 37 of the Convention. Arrangements are being made by the Myanmar authorities concerned to withdraw the reservations made on these two articles.
"I. The National Convention
"20. In its Declaration No. 11/92 of 24 April 1992, the State Law and Order Restoration Council declared that it would convene a National Convention within six months and that it would meet within two months with the leaders of representatives-elect of the political parties and independent representatives-elect.
"21. A 15-member Steering Committee was formed on 28 May 1992 to coordinate with the representatives-elect concerning the convening of a National Convention.
"22. In accordance with Order No. 9/92 of 28 May 1992, the following political parties and an independent representative-elect were represented at the Coordinating Meeting, held from 23 June to 10 July 1992:
Name of party. Number of representatives
(a) National League for Democracy 15
(b) Shan Nationalities League for Democracy 6
(c) National Unity Party 3
(d) Union Poah Nation Organisation 1
(e) Mro (or) Khami National Solidarity Organisation 1
(f) Shan State Kokang Democratic Party 1
(g) Lahu National Development Party 1
(h) Independent Representative 1
"Selection of National Convention Delegates
"23. At the Coordinating Meeting it was decided that delegates attending the National Convention should be classified under eight categories of representatives. They are:
Categories Number of persons
1. Representatives from political parties 49
2. Representatives-elect 107
3. Representatives of national racial groups 215
4. Representatives of peasants 93
5. Representatives of workers 48
6. Representatives of the intelligentsia and Technocrats 41
7. Representatives of State Service Personnel 92
8. Other invited personages 57
702
"Categories 3 to 5: representatives of national races, peasants and workers
"24. In nominating delegates under categories 3 to 5 to represent the national races, peasants and workers, selection committees comprising 15 members each for State/Division, District and Township levels were formed. Each committee was chaired by a Governmental General Administrative Officer and other members were from the administrative departments concerned and had an intimate knowledge of national racial groups, peasants and workers, as well as local personages who had earned the respect and trust of the national racial groups, peasants and workers.
"Category 6: representatives of the intelligentsia and technocrats
"25. In nominating delegates to represent the intellectuals and the intelligentsia, selection committees composed of senior administrative officials, academicians and intellectuals were formed.
"Category 7: representatives of State Service personnel
"26. In nominating delegates to represent the State Service personnel, selection bodies were formed at various Government ministries and departments to select the delegates.
"Category 8: other invited personages
"27. Of the 57 personages invited to attend the National Convention, 38 were representatives from 8 special regions of 8 armed groups who have returned to the legal fold to join hands with the Government in carrying out the border area development programmes being implemented by the Government.
"28. The remaining 19 invitees were personages who are well known for their political, economic, social and administrative experience.
"29. From the foregoing it is apparent that the delegates under categories 3 to 8 were not, repeat not, chosen by the State Law and Order Restoration Council.
"Selection of the panel of chairmen
"30. At the National Convention it was decided after due consultation that each category would nominate five delegates to act as Chairmen in the deliberations. Since there were eight categories, 40 delegates were nominated to serve on the panel of chairmen. Accordingly, delegates under category 1 (representatives from political parties) and delegates under category 2 (representatives-elect) were entitled to be represented by 10 delegates as Chairmen on the Panel. As a large majority of the delegates under category 1 and category 2 represented the political parties, and with a view to maintaining and nurturing unity and amity among the 10 political parties, it was decided that each political party should nominate a delegate to serve on the Panel of Chairmen. Hence, each of the 10 political parties was able to nominate a delegate on the Panel. Accordingly, U Tha Zan Hla of the National League for Democracy is one of the Chairmen on the Panel to represent his own party.
"Objectives of the National Convention
"31. The purpose of convening the National Convention is to lay down the basic principles for the elaboration of a new and enduring democratic State Constitution. As such, there is no place for playing party politics or for party propaganda, as those can be detrimental to the unity prevailing among the delegates and, above all, it can defeat and jeopardize the objectives of the National Convention.
"32. The principles of non-disintegration of the Union, national solidarity, national sovereignty, establishment of a multi-party democratic system and the universal values of justice, liberty and equality are universally accepted general principles. And the Tatmadaw has played a crucial role throughout Myanmar's contemporary history. In the struggle for independence the Tatmadaw fought hand-in-hand together with the people, a struggle in which many indigenous Myanmar national races participated. Born out of national struggle for national independence some 50 years ago, the Tatmadaw follows the tradition of serving the people's interests loyally and faithfully. The Tatmadaw has played an important role not only in the struggle for national independence but also in preventing the Union from disintegrating in times of crises and in safeguarding national sovereignty and integrity. In 1948 and 1949, in 1958, 1962 and 1988 the Tatmadaw was called upon to shoulder national responsibilities to protect and safeguard the nation. As it represents the single disciplined organization in the nation, it is incumbent upon it to play a leading role in national politics. It is therefore only natural that in the transformation of one system to another the Tatmadaw should also take part in the political process of the country. Its participation in this process is in consonance with the national aspirations of the people.
"Badges, distribution of leaflets etc.
"33. There were no restrictions whatsoever with regard to wearing badges. In fact, various delegates representing various political parties wore their badges. Also, there were no restrictions regarding distribution of leaflets and dissemination of propaganda which did not go beyond the framework of the six objectives.
"Alleged disqualification or arrest of some delegates
"34. 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 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.
"J. Rights devolved from citizenship status
"35. The weakness of the Union Citizenship Act (1948), enacted after Myanmar gained independence, became evident with the passage of time. Thus, the Union Citizenship Act (1948) was revoked and the Myanmar Citizenship Law was promulgated on 15 October 1982. Under the new Myanmar Citizenship Law, there are three categories of citizen, namely, citizen, associate citizen and naturalized citizen. The rights to be enjoyed by those citizens and the punishment if citizenship is acquired through unlawful means, the decision-making body, the right to appeal, the right of defence against action taken and the right to clarify in case of doubt in the citizenship are clearly mentioned in the Law section-by-section. Thus, the complaints made about the Myanmar Citizenship Law are not valid.
"36. A total of 82,541 foreigners were granted citizenship under the Union Citizenship Act (1948). Under the new law, 19,290 associate citizenships and 1,245 naturalized citizenships were granted to a total of 20,535 foreigners. The remaining cases are under scrutiny for further processing.
"37. The right to study for basic education at the primary, middle and high school levels is given, even to foreigners. The citizens and the foreigners residing permanently in Myanmar-Naing-Ngan have the right to study for higher education. The right to study for professional lines at institutes of medicine, technology, etc. is given only to those whose parents are citizens and who themselves are citizens, as is the case in other countries. Every citizen can work for his or her livelihood and enjoys benefits without any discrimination. Every citizen is free to travel to any place in the country, however, it is necessary for him or her to carry a citizen identity card, issued by the authorities, while travelling."
V. PRELIMINARY OBSERVATIONS
27. The Special Rapporteur welcomes the cooperation of the Government of Myanmar in responding to the memorandum of allegations and in agreeing to the visit of the Special Rapporteur from 9 to 16 November 1993, and expresses the hope that he will be accorded free and confidential access to all persons he deems useful in carrying out his mandate.
28. In regard to arrests and detentions, the Special Rapporteur has noted that over 1,000 persons detained during the mass demonstrations of 1988 and 1990 have now been released; however, arrests of many persons attempting to voice political dissent have been reported in 1993.
29. Although martial law was lifted in December 1992, the persons cited (see para. 13 above) were all arrested in 1993 in Yangon under still existing emergency decrees, such as the Unlawful Association Act 17 (1), the 1950 Emergency Provisions regarding acts detrimental to the security of the Union, section 17/20 of the Registration of Printers and Publishers Law and sections 5 (1) and (4) of the Burma Official Secret Act. They have been tried in civilian courts, but for offences under these emergency laws.
30. The legal causes of action against these persons (based on existing emergency legislation and SLORC decrees) appear to have arisen from their publication or circulation of documents pertaining to the process of the National Convention or for their criticism of the National Convention. However, the Special Rapporteur has not been informed what the specific acts are which constitute the crimes.
31. The above-mentioned existing laws place severe restrictions on freedom of expression, prohibit assembly of more than five persons in any one place, prohibit all criticism of the State Law and Order Restoration Council, the army (Tatmadaw) and the proceedings and content of the National Convention.
32. Further information provided to the Special Rapporteur concerning the trials of these and other persons, indicates that legal counsel was put at the disposal of the defendants. It is not clear how counsel was chosen, what the affiliation was of the lawyers provided or what role the lawyers had been permitted to carry out before, during or after the trials. It was further reported that the trials that had taken place had not been open, as is normally prescribed by law.
33. The Special Rapporteur has been informed that the persons tried at Insein Prison on 11 October 1993 have been sentenced to 20 years of imprisonment. Among these is Aung Khin Sint, National League for Democracy elected-member of Parliament and representative to the National Convention. His assistant, Than Min, was also arrested and tried for circulating illegal documents "issued by terrorist groups", in which delegates were asked to recall their responsibilities. He has reportedly been sentenced to 20 plus 18 additional years of imprisonment. It is not known whether appeals to a higher court have been or will be permitted in these cases.
34. The Special Rapporteur requests the Government of Myanmar to allow an international presence at any possible future trials concerning the persons cited above or of others tried under the emergency decrees. The Special Rapporteur urges the Government of Myanmar to release Daw Aung San Suu Kyi and to ensure that there are no threats or acts of intimidation or reprisal towards her.
35. In regard to torture and cruel, inhuman or degrading treatment, the Special Rapporteur received numerous allegations that this practice has continued to occur in the Union of Myanmar. It arises in a number of contexts. During interrogation, the practice is said to be routine and takes the form of poor sanitary conditions, being shackled, beatings, sleep, food and water deprivation, electric shock, the use of falanga, near suffocation, and psychological torture, including threats of death to the individual and his family. During forced portering and forced labour, the practice includes beating, kicking, burning, whipping, sleep, food and water deprivation, denial of medical treatment, carrying heavy loads in rugged terrain and in extreme temperatures. The repeated rape of women has been alleged. In some cases it has reportedly been carried out as a method of reprisal. During forced relocations in the context of military operations, similar forms of torture have been reported.
36. Numerous cases of disappearances alleged to have occurred in 1988 and in December 1991, reportedly remain unclarified. It is alleged that the whereabouts of hundreds of persons, including monks, workers, writers, professors and others, have never been established, and it is believed that some remain in unacknowledged detention, while others may have been killed and buried in mass graves. The Government has not indicated whether legal or administrative procedures for the purpose of clarification, such as habeas corpus petitions, are available to the relatives of the missing persons, and if available, how many times in the last year these remedial procedures have been used and to what effect. Disappearances have most frequently occurred since the last visit to the Union of Myanmar by the Special Rapporteur, in the context of recruitment for forced labour and forced portering.
37. The Government has stated that under the existing laws disappearances cannot occur because all detentions and arrests must be carried out in accordance with the law, which requires a register of all detainees to be kept and submitted to the relevant authorities.
38. As stated in his report to the Commission on Human Rights at its forty-ninth session, the Special Rapporteur took note of the fact that all death sentences had been commuted to life imprisonment. Nevertheless, reports continue to be received of extrajudicial executions carried out by the army (Tatmadaw) in the context of forced portering and labour, and carried out most frequently against ethnic minorities. The reports focused on executions of civilians accused of insurgency, of those refusing to be recruited for portering or other labour, or killed in reprisal for others refusing recruitment or, in some cases, for another village refusing relocation.
39. The Government reply in regard to extrajudicial executions indicates that it is mandatory to state the cause of death on the death certificate. If the cause of death is not known, the police are required to forward a report to a magistrate, who has the discretionary power to hold inquests into the cause of death.
40. The Government stated that all allegations regarding summary or arbitrary executions were totally false and unfounded and that while undertaking the three main causes: 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 the future". The Government stated its belief that these allegations "are based upon false information given by insurgents, persons communicating with insurgents and persons who are endeavouring to bring down the Government of the State Law and Order Restoration Council".
41. Over 35,000 Myanmar Muslims who had fled to Bangladesh from Northern Rakhine State have now returned or repatriated. The repatriations took place with the participation of the Office of the United Nations High Commissioner for Refugees (UNHCR). The Special Rapporteur has received numerous and varied reports concerning the conditions of resettlement. Some reports have indicated that they have not been allowed to return to their villages of origin and have been resettled in villages set up by the Government. Other reports indicate that many of the villages of origin were appropriated by military personnel and/or by Burmese civilians. Still other reports state that they have been allowed to return to their original villages but that in some cases, the homes (constructed mostly of mud), had fallen apart during their prolonged absence.
42. The residency and citizenship status of the returnees remain unclear, and most have not received identification cards. The Special Rapporteur was told that they were not entitled to freedom of movement, to enrol in institutions of higher learning or to take up certain professions.
43. The Government replied that they had been resettled in their original villages and that "priority is being given to development of border areas and national races". Since 22 September 1992, a total of 9,209 households and 41,098 persons had been repatriated as at 12 October 1993.
44. The Special Rapporteur is pleased to note that through recent discussions between the Government of Myanmar and the UNHCR, it has been agreed, in principle, that UNHCR will soon be allowed to establish a presence in the Rakhine State. The purpose of the presence of UNHCR will be to assist and coordinate the voluntary repatriation and safe resettlement of the persons of Myanmar returning from the UNHCR assisted camps in Bangladesh.
45. It has been reported to the Special Rapporteur that there has been no progress made in allowing freedom of association or trade union activity and that a monopoly of trade union rights, as well as trade union activities, still exists. The arrest of some labour activists was reported to the Special Rapporteur, as was the continued practice of forced labour.
46. The Government responded that the people in the border areas contribute their voluntary labour and that it is the custom and culture of indigenous races of Myanmar to give voluntary services in nation-building works. In regard to Muslims in Rakhine State, the Government stated that "they give voluntary services to the development of border areas" and that "such voluntary service was stopped in 1991".
47. In regard to the Convention on the Rights of the Child and to reservations made by the Government relating to articles 15 and 37 of the Convention, the Government stated that arrangements are being made by the Myanmar authorities to withdraw the reservations on these two articles.
48. The Special Rapporteur has been informed that schools and universities were re-opened for the normal school term.
49. In regard to the National Convention for the drafting of a new constitution, no evident progress has been made towards turning over power to the freely elected civilian Government. The fifteen-member Steering Committee set out the agenda, the terms of reference and the topics to be discussed. Each of the eight categories represented at the Convention elected 5 delegates (total of 40 delegates) to be on the Panel of Chairmen to direct the Convention. Out of the ten nominees allowed the political parties and representatives-elect, one member of the National League for Democracy, the party that won 80 per cent of the vote in the national elections, has been named as a Chairman.
50. The Government stated that in the National Convention, there was no place for party politics or propaganda as those could be detrimental to unity and could defeat and jeopardize the objectives of the National Convention. Persons voicing dissent in regard to the National Convention have been arrested and sentenced to long prison terms.
51. The Government has stated that because the Tatmadaw had, inter alia, prevented the Union from disintegrating and had safeguarded national sovereignty and integrity, and as it represented the single disciplined organization in the nation, it was incumbent upon it to play a leading role in national politics and that "(I)n the transformation of one system to another the Tatmadaw should also take part in the political process of the country".
52. The Special Rapporteur plans to visit the Union of Myanmar from 9 to 16 November 1993 and Thailand from 16 to 20 November 1993, at which time he will have the opportunity to examine further these issues related to the situation of human rights in Myanmar.
Notes
1/ See E/CN.4/1993/37, paras. 69 and 70.
2/ Ibid., para. 242 (c).
3/ Ibid., para. 226.
-----
******************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
UNITED NATIONS
General Assembly
Distr.
GENERAL
A/49/594
ORIGINAL: ENGLISH
Forty-ninth session
Agenda item 100 (c)
HUMAN RIGHTS QUESTIONS: HUMAN RIGHTS SITUATIONS AND REPORTS
OF SPECIAL RAPPORTEURS AND REPRESENTATIVES
Situation of human rights in
Note by the Secretary-General
The Secretary-General has the honour to transmit to the
members of the General Assembly the interim report prepared by
Mr. Yozo Yokota, Special Rapporteur of the Commission on Human
Rights on the situation of human rights in Myanmar in accordance
with paragraph 20 of Commission on Human Rights resolution
1994/85 of 9 March 1994 and Economic and Social Council decision
1994/269 of 25 July 1994.
94-42026 (E) 111194 /...
*9442026*
ANNEX
Interim 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 1994/85 and Economic and Social Council decision 1994/269
CONTENTS
Paragraphs
I. INTRODUCTION 1-4
II. CORRESPONDENCE WITH THE GOVERNMENT OF MYANMAR 5-8
III. SUMMARY OF ALLEGATIONS RECEIVED 9
I. INTRODUCTION
1. On 9 March 1994, at its fiftieth session, the Commission on Human Rights adopted without a vote resolution 1994/85 entitled "Situation of human rights in Myanmar". In paragraph 20 of the resolution the Commission decided "to extend for one year the mandate of the Special Rapporteur to establish or continue direct contacts with the Government and people of Myanmar, including political leaders deprived of their liberty, their families and their lawyers" and requested him "to report to the General Assembly at its forty-ninth session and to the Commission on Human Rights at its fifty-first session". The present report, which constitutes a preliminary report by the Special Rapporteur, is being presented in accordance with that request. A final report will be submitted to the Commission on Human Rights at its fifty-first session.
2. In resolution 1994/85, the Commission, inter alia: noted with particular concern that the electoral process initiated in Myanmar by the general elections of 27 May 1990 had yet to reach its conclusion; deplored the fact that political leaders remained deprived of their liberty, in particular Nobel Peace Prize laureate Daw Aung San Suu Kyi; expressed its grave concern at the violations of human rights which remained extremely serious, including, in particular, the practice of torture, summary and arbitrary executions, forced labour, including forced portering, abuse of women, politically motivated arrests and detention, forced displacement, important restrictions on the freedoms of expression and association, and the imposition of oppressive measures directed at minority groups; and expressed its concern about the continuous problems created in neighbouring countries by the exodus of refugees from Myanmar.
3. In addition to the above, 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 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. On 25 July 1994, the Economic and Social Council, in its decision 1994/269, approved Commission resolution 1994/85.
II. CORRESPONDENCE
WITH THE GOVERNMENT OF
5. On 10 August 1994, the Special Rapporteur addressed the following letter to the Minister for Foreign Affairs of the Union of Myanmar:
"I have the honour to refer to Commission on Human Rights resolution 1994/85 of 9 March 1994 by which my mandate as Special Rapporteur on the situation of human rights in Myanmar was extended for a third year. For your convenience, please find attached a copy of resolution 1994/85. As you may be aware, at its most recent session, the Economic and Social Council approved Commission resolution 1994/85 by its decision 1994/269 of 25 July 1994.
"By paragraph 20 of its resolution 1994/85, the Commission called upon the Special Rapporteur 'to establish or continue direct contacts with the Government and people of Myanmar, including political leaders deprived of their liberty'. Paragraph 21 urged 'the Government of Myanmar to cooperate fully and unreservedly with the Commission and the Special Rapporteur and, to that end, to ensure that the Special Rapporteur has effectively free access to any person in Myanmar whom he may deem it appropriate to meet in the performance of his mandate, including Daw Aung San Suu Kyi'.
"Accordingly, I would be most grateful to continue benefiting from the cooperation of your Excellency's Government so that I may provide the Commission and the General Assembly with a comprehensive assessment of the situation of economic, social, cultural, civil and political rights in Myanmar. In this regard, I would wish to visit your country again. Specifically, and keeping in mind the schedule of the General Assembly, I would hope that your Government would agree to my visit at about the same time as last year; may I suggest from 7 to 16 November 1994? Hoping that this would be acceptable to your Excellency's Government, may I also follow upon the suggestion made to me last year in Yangon by one governmental official that, after spending the first days of my visit in Yangon, I might spend some days in the eastern part of your country towards the frontiers? On this last matter especially, I would certainly welcome your specific suggestions. On more general and substantive issues, let me also restate my commitment to endeavouring to accord full consideration to your Government's views and that, as such, I am at your disposal to continue our dialogue about the situation of human rights in Myanmar."
6. On 23 September 1994, the Minister for Foreign Affairs of the Union of Myanmar addressed the following letter to the Special Rapporteur:
"I have the honour to refer to your letter of 10 August 1994, regarding your proposed visit to Myanmar.
"I am pleased to inform you that your proposal is acceptable to the Government of Myanmar. It is indeed our pleasure to welcome you again this year to Myanmar as an expression of our continuing cooperation with the United Nations.
"I am sure that you will have the opportunity once again to observe at first hand the consensus reached for the writing of a firm and enduring Constitution in the national political process, as well as the achievements made in the economic development endeavours.
"I shall once again try my best to make your visit in Myanmar most productive and meaningful."
7. In a letter from the Permanent Representative of the Union of Myanmar to the United Nations Office at Geneva, which accompanied the above letter from the Minister for Foreign Affairs, the Special Rapporteur was informed that the proposed dates for his visit had been tentatively agreed to.
8. On 5 October 1994, the Special Rapporteur addressed the following letter to the Minister for Foreign Affairs of the Union of Myanmar:
"I have the honour to refer to your letter of 23 September 1994, by which you communicated your Government's acceptance of my proposal to visit the Union of Myanmar in November of this year. I am most appreciative of this opportunity to examine first-hand the situation of human rights in your country and to continue in person our dialogue on issues and developments in this regard.
"With respect to the specific itinerary to be followed during my visit to your country in November, I would welcome again the opportunity of meeting with the following officials: Secretary One of the State Law and Order Restoration Council; the Minister of Information; the Attorney-General; the Chief Justice of the Supreme Court; and, of course, your Excellency. In addition, I would welcome the opportunity of meeting with the following persons: leaders of various political parties participating in the National Convention, including the Chairman of the National League for Democracy; representatives of the Myanmar Red Cross Society; and, in fulfilment of paragraph 21 of Commission on Human Rights resolution 1994/85, Daw Aung San Suu Kyi. I would also appreciate the opportunity of visiting again Insein Prison with unrestricted access to all prisoners. Finally, I would greatly appreciate the opportunity of travelling to the eastern part of your country towards the frontiers where I would hope to meet with local authorities, visit a local prison, tour some development or construction sites, and meet with such persons as I may deem relevant to my mandate.
"In keeping with my commitment to endeavouring to accord full consideration to your Government's views on the substantive issues raised in my mandate, including both general and specific allegations of human rights violations by the Government of Myanmar, I submit herewith a summary of allegations received by me in the last year. In addition to the views of your Government concerning the issues raised in the attached summary of allegations, I would appreciate receiving your Government's responses to the following:
"1. Please specify the reasons, including reference to specific legal authority, for keeping Daw Aung San Suu Kyi under house arrest after 20 July 1994, and please indicate precisely when the Government intends to release her.
"2. Please describe in as much detail as possible the present status of Daw Aung San Suu Kyi's physical health.
"3. Please detail the Government's position with regard to maintaining dialogue with Daw Aung San Suu Kyi, indicating the time-frame the Government intends to follow in this regard.
"4. Please describe in as much detail as possible the progress made so far in the National Convention and the drafting of a new constitution, indicating the anticipated schedule for future meetings.
"5. Please indicate whether or not the Burmese version of the Universal Declaration of Human Rights has been distributed to all the delegates to the National Convention.
"In so far as I would like to bring your Government's views on the attached summary of allegations directly to the attention of the General Assembly during its present session, I would be grateful of receiving your Government's comments or specific responses by 31 October 1994. I would also appreciate receiving your Government's responses to the above queries as soon as possible.
"The continuing cooperation of the Government of Myanmar in the fulfilment of my mandate is most appreciated."
III. SUMMARY OF ALLEGATIONS RECEIVED
9. The following is the text of the summary of allegations which the Special Rapporteur submitted to the Government of Myanmar with his letter of 5 October 1994 as indicated above. With due regard to General Assembly resolutions 37/14 C of 16 November 1982 and 47/202 B of 22 December 1992 and Commission on Human Rights resolution 1993/94 of 11 March 1993, concerning, inter alia, the timely submission and circulation of reports, the Special Rapporteur reproduces below the text of his summary of allegations while awaiting receipt of the views of the Government of Myanmar. Immediately upon receipt of the views of the Government of Myanmar, the Special Rapporteur shall submit an addendum to the present report reproducing the aforementioned views in their entirety.
"A. Extrajudicial, summary or arbitrary execution
"1. 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. 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, on 5 February 1994, Myanmar Army forces from Division No. 99, Battalion No. 84, reportedly arrested seven men working in a field in Pa'an Township, Thaton District, Karen State; the men were accused of collaborating with the armed Karen insurgents and two of them were executed, while the others were held to ransom and subsequently freed. Many other similar situations include allegations of such severe torture that the victims died as a result. For example, in March 1994 in Pa'an Township, Thaton District, Karen State, soldiers from the Myanmar Army reportedly arrested a 13-year-old boy driving cattle outside his village; the boy was said to have been interrogated, tortured and killed by the Myanmar forces. Other examples of alleged extrajudicial killings include the following: on 10 March 1994, forces of Light Infantry Battalion No. 59 alleged arbitrarily executed Saw Soe Ghaz Htoo (aged 35 years) in Thay Baw village, Lu Thaw Township, Papun (Mudraw) District; on 18 March 1994, forces of Light Infantry Battalion No. 59 also alleged arbitrarily executed Saw Ko Pa Moo (aged 30 years) in Thu Daz village, Lu Thaw Township, Papun (Mudraw) District; on 20 April 1994, forces of Light Infantry Battalion No. 96 are alleged to have killed the villager Pa Kloh (aged 26 years) and wounded Saw er Ker (aged 20 years) in Paw Ghee Khee village, Thaton District; and on 10 May 1994, in Naw K'Toh village, Thaton District, two villagers (Kyaw Soe Puy, aged 32 years, and Saw Ganoo, aged 35 years) were said to have been arrested and executed by the forces of Light Infantry Battalion No. 76.
"2. Many of the reports from non-governmental sources have also described occasions where soldiers from the Myanmar Army have opened fire with light arms against civilians without any evident provocation. Such situations have frequently been reported in the process 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. In other situations, the Army is reported to have killed civilians who have disobeyed orders from the Army to relocate their homes, to supply goods or provide labour for little or no compensation.
"3. In addition to the above, Myanmar Army troops are reported to take revenge against nearby villages after being attacked by insurgent forces. These collective and arbitrary punishments are often said to include summary executions of civilians present in the area. On 15 December 1993, for example, following an insurgent ambush of Myanmar Army forces near Htee La Nay village, Hlaing Bwe Township, Pa'an District, Karen State, a villager working in a field was reportedly shot on sight. Under similar circumstances in May 1993, two young schoolboys were allegedly shot in Kyint Kyo village, Thaton Township. It has also been reported that, in the beginning of 1994, the regional commanders in Thaton District informed the civilian headmen of the district that, in the future, five villagers would be killed for every soldier who died. However, it is not known whether these reported threats have ever been carried out.
"4. In Shan State, different sources have alleged that, since December 1993, an offensive by the Myanmar Army against Khun Sa and the so-called Ming Tai Army has included air force strikes on civilian villages in the area of the insurgency. For example, on 10 July 1994, Ban Akhu village is reported to have been attacked and two boys are said to have been killed (aged 7 and 14 years) while five other persons were wounded. Whole villages are reported to have been destroyed by the Myanmar Armed Forces because of alleged cooperation with the Ming Tai Army. As in other cases, villagers trying to escape the military forces are said to have been shot on sight upon the suspicion of being insurgents or cooperating with them.
"B. Arbitrary arrest and detention
"5. The Nobel Peace Prize winner, Daw Aung San Suu Kyi, is still being held under prolonged house detention without trial; on 20 July 1994, she passed her fifth anniversary 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 from throughout the world sent thousands of petitions to the United Nations in the last few months.
"6. Although some political prisoners have reportedly been released in the last year from centres of detention in Yangon, reports from different sources describe how an unknown number of civilians continue to be arrested as suspected insurgents (or sympathizers thereto) and how they remain detained in countryside prisons, especially in the regions of the country with predominantly non-Burman populations.
"7. Recently, the following new cases have been brought to the attention of the Special Rapporteur. On 27 May 1994, a Swiss national displayed a banner in front of Yangon City Hall, demanding the release of Daw Aung San Suu Kyi. Seven persons who were passively observing the protest in Yangon are reported to have been arrested by Myanmar intelligence officers.
"8. On 4 July 1994 at Yangon airport, members of Military Branch Three reportedly arrested Khin Zaw Win (a university student) when he tried to board a plane for Singapore. The report indicates that Khin Zaw Win was studying in Singapore and was writing a thesis on the political situation in Myanmar; he had been visiting Myanmar in order to obtain more material for his thesis. Recent reports say that he has been transferred from the Military Intelligence Centre to Insein Prison, and is now being detained in the same cell as a supporter of the National League for Democracy. Khin Zaw Win has allegedly yet to have been charged with any offence.
"9. On 21 July 1994 in Plat Hon Pai section, Kwan Saya village, part of Halockhami refugee camp, soldiers from Infantry Battalion No. 62 of the Myanmar Army attacked the camp, destroying about 50 houses and causing some 500 Mon refugees (recently repatriated from Thailand) to flee again across the Thai border. The soldiers reportedly arrested 19 men, most of whom were camp leaders. The fate of those arrested remains unknown.
"10. On 4 or 5 August 1994 in Yangon, the following persons were reportedly arrested: 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 who had apparently worked for the United Nations Children's Fund (UNICEF) at Yangon); Daw San San Tin (a translator who had apparently been working occasionally for UNICEF); and Daw San San Nwe (a writer) and her daughter. It is not known where these persons are being detained, nor what (if any) charges have been brought against them. It is also reported that Khin Maung Swe, U Sein Hla Oo and Daw San San Nwe have all been previously imprisoned by the Government.
"11. Since 1993, many reports from different sources have alleged a widespread practice of arbitrary arrest and detention of persons for ransom, especially in the countryside. Civilians are said to have been rounded up in various public places in both urban and rural communities and held in detention until their relatives could supply a certain sum of money or goods; these detentions are often said to be maintained under the threat that the detainees will be taken as Army porters or be executed should the ransom not be paid.
"12. The information has also reached the Special Rapporteur that, on 15 July 1994 in Insein Prison, Thet Khine died four days after a failed suicide attempt. It has been alleged that the prison authorities placed Thet Khine in the prison's Medical Unit after his attempted suicide, choosing not to take him to a hospital facility outside the Prison; he died in the prison's Medical Unit. Thet Khine was arrested in 1989 and had been sentenced to 20 years' imprisonment together with other political leaders.
"C. Torture and other cruel, inhuman or degrading treatment
"13. Numerous allegations, often in considerable detail, have been received from various sources alleging that forces 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 treatments and punishments. Such treatment seems to be routinely employed during the interrogation of persons who have been 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 forcing victims to consume large quantities of water or pouring hot liquids down victims noses or throats.
"14. The Special Rapporteur has continued to receive information from many sources indicating that rape occurs on a wide scale; reports of so-called gang rapes by entire groups of Myanmar military personnel are not uncommon. The victims are mostly reported to be women belonging to minority populations, although allegations of homosexual rape have also been received (including, e.g., the written testimony of a 13-year-old boy from Thaton Township, Thaton District, Karen State). Women serving as porters or otherwise as forced labourers are especially vulnerable and are often said to be victims of rape. It is also reported that rape is being used as a punishment for joining indigenous women's groups. Some of the reported rapes are said to have lead to death as a consequence of continuous rape or by infections caused by rape. Reports also describe situations where women who have resisted rape, or screamed during rape, have been killed. Furthermore, rape is also alleged to be used as a method of forcing women from ethnic minorities to marry soldiers from the Myanmar Army; the children of these marriages are subsequently considered to be of Burmese nationality.
"15. An especially severe incident which has been brought to the attention of the Special Rapporteur reportedly occurred on 2 August 1993 in Won Mon village, Won Tse village circle, Laikha Township in Southern Shan State, when Myanmar Army soldiers from Infantry Battalion No. 64 were said to have entered the village in search of a defector: they allegedly arrested 12 women (ages 15 to 35 years) and took them to a nearby farm for interrogation, whereupon the women were gang-raped.
"D. Forced labour
"16. In his 15 August 1994 statement to the United Nations Subcommission on Prevention of Discrimination and Protection of Minorities at its forty-sixth session, Ambassador U Tin Kyaw Hlaing of the Permanent Mission of Myanmar to the United Nations Office at Geneva stressed the following: 'In Myanmar, voluntary contribution of labour to build shrines, temples, roads, bridges, etc. is a long-established tradition going back centuries.' While the Special Rapporteur observes that uncoerced contribution of labour for the public good can hardly be described as a violation of human rights, it is to be noted that numerous reports from a wide variety of sources still characterize most of the contributed labour as being conducted under various threats of violations of personal integrity rights or property rights. In general, reports of such forced labour may be divided into three categories: forced portering, other forced labouring and different kinds of obligatory guard duty.
"17. As has been previously reported by the Special Rapporteur, much of the forced portering in Myanmar has occurred in connection with military campaigns against insurgent forces in various of the states of the Union of Myanmar. Although cease-fire talks between the Government and the main insurgent groups were agreed upon in late 1993 and early 1994, reports on forced portering for the Army still flow in from different sources. For example, in May 1994 the Myanmar Army is said to have arrested hundreds of persons in Tachilek in Shan State in order to use them as Army porters in the battle against Khun Sa and the Ming Tai Army. Porters were reported to have been forcibly recruited from all public places and also from private homes in the areas of Kalaw, Taunggui and Tachilek. Fighting between the Myanmar military and the Ming Tai Army is reported to have been intense with high casualty figures on both sides, including the deaths of many porters caught in the cross-fire. The Myanmar authorities have also reportedly failed to protect civilians from being forced to porter for the Ming Tai Army. Moreover, the Myanmar Army has allegedly regularly been taking internally displaced persons from a camp established by the Myanmar Army at Loi Hsa Htoong near the border with Thailand for purposes of portering military materiel as needed.
"18. Forced portering has been reported especially in the areas of conflict in the Karen, Karenni, Shan and Mon regions. Persons taken for portering are reported to have been rounded up by the military in various places, such as schools, buses and market places. Convicts are also said to be used as Army porters, especially at the front lines of the fighting. Reports indicate that porters are forced, under very poor conditions, to carry heavy loads of Army materiel and supplies for the troops. They are said to be given very small or spoiled food rations, little water and no medical care if ill or wounded. Large numbers of porters are reported to have died from ill-treatment, illness and malnutrition. Irrespective of their condition, those who can no longer respond to the heavy physical demands of portering are reportedly routinely abandoned without food, or simply executed on the spot. Porters who attempt to escape are reportedly shot.
"19. Allegations have also been made that elderly persons, women and children have been taken as Army porters. These persons are often said to be used as human shields in military operations.
"20. Of a similar nature to forced portering in support of military activities, the Special Rapporteur has received information alleging the use of civilian labour, under coercive measures, for other purposes. Reports indicate that villages near Army camps are obliged to supply daily workforces to assist with the construction of Army barracks, fences, land clearance, wood-cutting operations, agricultural projects and other activities in direct support of the Army camps.
"21. In connection with certain large development projects initiated by the Government of Myanmar, some of them with the assistance of foreign aid, it has been alleged that civilians have been forced to contribute non-recompensed labour. Such projects include the building of hospitals, roads, railways, gas pipelines, bridges, and fisheries. Reports indicate that people from villages in the areas of various projects are frequently obligated to contribute their labour and other resources, often under threat of violation of their personal integrity rights.
"22. Many reports of considerable detail have been received alleging a variety of violations of human rights on a massive scale in connection with the construction of a railway between the city of Ye in Southern Mon State and the city of Tavoy in Tenasserim (Taninthari) Division. The Government reportedly began construction of the railway in November 1993. According to reports received, each family from the villages along the line and also from surrounding areas is obliged to supply one worker for 15 days at a time in rotating shifts. Almost all the civilian families in Ye Township, Thanbyuzayat Township and Mudon Township of Mon State, as well as Yebyu Township, Tavoy Township, Launglon Township and Thayet Chaung Township of Tenasserim Division, are said to have been forced to contribute labour for the railway's construction. The workers are reportedly required to bring their own food, provide their own shelter, ensure their own health and medical needs, use their own tools and, in some cases, also supply materials for the construction of the railway. Allegations have also been made that the military supervising the construction of the railway demands money for the use of bulldozers available at construction sites; the fuel needed for use of the bulldozers is also said to be sold by the military. Despite articles in the official government press stating that wages have been paid to local persons participating in ground-levelling and other work associated with the construction of the railway (e.g., an article published in the 31 July 1994 edition of the New Light of Myanmar), reports received consistently estimate that over 100,000 persons have had to contribute their labour for the railway project without any compensation. Elderly persons, children and pregnant women are also reported to have been seen as labourers along the railway. Several persons are also reported to have died from illness and accidents caused by poor conditions at construction sites. Forced labour is said to be concentrated in seven main control centres from Ye to Zimba, namely: Paukpingwin, Kinbun, Natkyizin, Paya Thone Su, Yapu, Kyanor and Zimba. Each of the aforementioned centres is alleged to control 7,000 to 8,000 forced labourers daily. The land along the railway's route is said to have been confiscated from its owners without compensation. Myanmar Army battalions (especially Light Infantry Battalion Nos. 343, 407, 408, 409 and 410, together with regular Infantry Battalion Nos. 61 and 104) are reported to be responsible for the construction of the railway. The railway is expected to be completed sometime during 1996.
"23. As other examples of forced labour allegedly being used in relation to major development projects, information has been received relating to a road project started in December 1993 between Bo Pyin and Lay Nya in Mergui/Tavoy District. Every family from the villages along the road have reportedly to participate in its construction by building 10 feet of the road. Forced labour is also said to be used in the construction of an international airport at Bassein and a new military airfield in Laboutta Township. In addition, many other smaller development projects in urban areas, such as the restoration of tourist sights in Mandalay, are reported to rely upon forced labour.
"24. Another form of forced labour which has been reported to the Special Rapporteur alleges the requirement of lengthy guard duty by civilians along roads and railways in many of the regions where insurgencies have been taking place. Reports indicate that civilians from nearby villages are often required to serve 24 hour guard duties without compensation and on threats of violations of their personal integrity rights. In addition, such 'guard duty' is often said to include contribution of physical labour for reparations to the roads and railroads. Furthermore, some reports allege that civilians used for such duties, in particular women and children, are also required to sweep roads for land-mines; it has been alleged that villagers have been forced to walk or ride in carts in front of military columns in order to 'detect' mines.
"E. Violations of the freedom of movement
"25. Reports continue to be received alleging the forced relocation and internal displacement of persons on a wide scale: in the past six years, it has been estimated that over 1 million persons have been forcibly relocated, without compensation, to new towns, villages or relocation camps or have been internally displaced owing to armed conflict with various insurgent groups. In the regions of the country with predominantly non-Burman populations and where insurgencies have been taking place, the inhabitants of small villages are still said to be forced to relocate to larger villages or to temporary relocation camps for purposes of enabling government forces better to control the populations. In those cases when the inhabitants of a village refuse to relocate, they are said to be first threatened in various ways prior to being forcibly evicted and having their homes destroyed.
"26. Forced relocations and evictions have also been reported in connection with major development projects. According to several non-governmental sources, the gas pipeline project from the Martaban Gulf to Thailand led to the forcible relocation of villages in Mergui/Tavoy District in December 1993: villagers around B'saw Law were allegedly forced to move to Kaleingung; villagers around Shwetapi were allegedly forced to move to Huan Gui; and villagers in the Baw Law Gui area were allegedly forced to move to Ye Byu. All the relocation sites are said to be along a government-controlled road near to the coast.
"27. In connection with the reports of forced relocations of persons' residences, information has been received by the Special Rapporteur that other restrictions are placed on the liberty of movement of relocated persons. For example, some persons are said to have been placed in 'relocation camps' which are surrounded by high fences and guarded by Government forces. Reports allege that a curfew from 0600 to 1800 hours is in effect in these camps, despite the fact that the official curfew order was lifted by the Government of Myanmar on 10 September 1992. Persons held in the relocation camps, or who are otherwise apparently required to remain within the confines of the villages to which they have been forcibly relocated, are reportedly prohibited from returning to tend to their farms or to collect property which they were forced to leave behind. In some places, persons needing to go outside a village or a camp (e.g., for purposes of work) are reported to need special permission, which is issued for one day at a time against a fee, from the local Army headquarters. In certain rural areas, persons are reportedly prohibited from spending the night in temporary shelters at their farms.
"28. While most reports concerning alleged violations of freedom of movement detail incidents of forced relocation, the Special Rapporteur has also received reports alleging forced assembly and participation in public meetings organized by the Government. Such reports have mostly related to meetings of the Union Solidarity Development Association organized since the beginning of 1994 in different parts of Myanmar (e.g., Toungoo, Monywa, Mandalay and Lokaw). People from the surrounding areas were reportedly forced to attend these meetings under various threats, such as deprivation of electricity or water supplies, monetary fines or physical abuse. Students are said to have been told by their teachers that if they failed to attend the rallies they would each receive 15 lashes of a cane. The Union Solidarity Development Association rally held on 7 February 1994 in Prome town in Pegu District is reported to have been preceded by chaos when large numbers of people who had been brought into a fenced compound the night before were not allowed to leave the compound for purposes of going to the toilet: in the hysteria which accompanied a fight between civilians and security forces, 2 men are reported to have been trampled to death while over 20 other people were said to have been wounded.
"F. Violations of the right to property
"29. Many reports received by the Special Rapporteur allege various kinds of violations of property rights, especially by the Myanmar military forces. These reports include allegations of regular looting of villages in the countryside, the arbitrary and unlawful institution of a wide variety of fees for various purposes and the application of military orders against civilians requiring them to provide specified goods without adequate compensation.
"30. Myanmar Army troops are frequently reported to have entered villages and to have confiscated, without compensation, different kinds of valuables in the forms of non-perishable personal property, food supplies and livestock. Among the goods reportedly confiscated are many items which cannot be said to be necessary for purposes of providing public security, for example women's sarongs, jewellery, tape-recorders and alcohol.
"31. Various kinds of fees are said to be regularly demanded from both individuals and villages as a whole. The most widespread fee is said to be the 'porter fee' which is allegedly demanded each month from every family: in towns, the fees are reported to be about 100 kyats per month, while in the countryside they are reported to be between 200 and 400 kyats per month. Recent reports have also alleged the application of other kinds of fees, such as 'courier fees' and taxes on tools, carts and other goods. As noted above, villagers in the areas of development projects are also said to be forced to participate in the funding of these projects; fines are also reportedly assessed if a family is unable to supply the demanded amount of forced labour or a minimum amount of demanded goods. People who are unable to pay assessed fees or fines are reportedly threatened with being taken away to be used as Army porters or for other purposes of long term and heavy forced labour.
"32. Reports received in the last several months allege that the Myanmar Army has started to demand 'compensation' from local villagers for vehicles and other military property damaged by land-mines. Fines of 100,000 kyats are said to have been demanded from the village closest to the place of an incident, with 50,000 kyats being demanded from as many as 10 or 12 of the surrounding villages. For example, in Thaton Township a truck was reportedly destroyed by a land-mine on 29 January 1994: the two nearest villages, Tor Klor Khee and Tor Klor Po Khee, were said to have been fined 300,000 kyats by Myanmar Army Infantry Battalion No. 120. Village headmen in Thaton Township have also reportedly been forced to sign documents taking all responsibility for security in the area and to pay fines of 50,000 kyats if shelling by insurgent forces occurs or to pay fines of 100,000 kyats if Army trucks are damaged by land-mines.
"33. Other reported incidents of 'compensation' being required from villagers following loss of property by the military include reports of cases where owners of cattle which have been killed by Army land-mines close to Army camps have had to pay compensation for the destroyed land-mines. In one reported incident, villagers had to pay 'compensation' to members of the Armed forces for the bullets fired at them when, in fear of being taken as porters, the villagers tried to escape the soldiers.
"34. Farmers are also said to have been forced to sell parts of their crops to government-related agencies for prices well below market price, in addition to paying the fixed government tax on these crops. As a result, it has been reported that some farmers no longer cultivate their fields in order to avoid the constant confiscations of their crops or the obligations to sell parts of their crops well below market value. In addition, reports have also described how soldiers sometimes deliberately destroy rice paddies and other crop fields. For example, on 21 February 1994, Light Infantry Battalion No. 32, led by Captain Myo Lwin Thet Lwin, allegedly burned down the houses of four villagers in Taree Hta Gaun village in Kya In Seik Gyi Township, Dooplaya District, destroying in the process the stored crops of rice, betelnut and pepper.
"35. With respect to real property, reports indicate that Myanmar military forces frequently confiscate land in all parts of the country, without paying any compensation. Such confiscations have been reported in relation to the realization of development projects, the creation of State farms, or for the personal benefit of military commanders. For example, in Tacheilek, Shan State, it has been alleged that senior members of the Myanmar Army confiscated paddy fields, divided them into blocks and sold them back to farmers or to officers under their command.
"G. The
situation of refugees from
"36. According to information received by the Special Rapporteur, approximately 75,000 refugees from Myanmar are estimated to live in camps inside Thailand along the border with Myanmar. An unknown number of persons, possibly as many as 100,000, are said to be internally displaced on the Myanmar side of the border. These persons are reported to have fled their villages in fear of ill-treatment, forced portering, forced labouring or other human rights violations. Some 200,000 Muslim refugees from the northern Rakhine State are still in Bangladesh after fleeing their homes in Myanmar. Many of them reportedly allege that they were forcibly relocated or that their land was confiscated for government construction projects, prawn cultivation or timber projects during 1990-1992.
"37. Recently, thousands of Mon refugees were repatriated from Loh Loe in Thailand to Halockhami inside Myanmar. On 21 July 1994, the refugee camp inside Myanmar was reportedly attacked and partly destroyed by approximately 300 soldiers of the Myanmar Army's Infantry Battalion No. 62 under the command of Deputy Battalion Commander Lt. Col. Ohn Myint. Fifty refugees were said to have been taken hostage by the troops while all the Mon refugees (approximately 5,000 to 6,000 persons) in the camp fled back into Thailand. Although reports indicate that most of the hostages were later released (after allegedly having been used as human shields and porters), 19 of those taken hostage are still believed to be detained."
-----
******************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
UNITED NATIONS
General Assembly
Distr.
GENERAL
A/49/594/Add.1
ORIGINAL: ENGLISH
Forty-ninth session
Agenda item 100 (c)
HUMAN RIGHTS QUESTIONS: HUMAN RIGHTS SITUATIONS AND
REPORTS OF SPECIAL RAPPORTEURS AND REPRESENTATIVES
Situation of human rights in
Note by the Secretary-General
Addendum
The Secretary-General has the honour to transmit to the members of the General Assembly an addendum to the interim report prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with paragraph 20 of Commission on Human Rights resolution 1994/85 of 9 March 1994 and Economic and Social Council decision 1994/269 of 25 July 1994.
ANNEX
Addendum to the interim 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 1994/85 and Economic and Social Council decision 1994/269
1. The Special Rapporteur submitted to the Government of Myanmar, on 5 October 1994, a summary of allegations he had received concerning human rights violations in Myanmar (for the text, see A/49/594, para. 9). In his accompanying letter, the Special Rapporteur requested the Government of Myanmar's responses to five specific questions (see A/49/594, para. 8).
2. By note verbale dated 4 November 1994, the Permanent Mission of the Union of Myanmar to the United Nations Office at Geneva transmitted the responses of the Government of Myanmar to both the Special Rapporteur's summary of allegations received and the five specific questions put in his letter of 5 October 1994.
3. The following is the full text of the Government of Myanmar's response to the summary of allegations received by the Special Rapporteur:
"OBSERVATIONS AND REBUTTALS ON THE SUMMARY OF ALLEGATIONS
"A. Extrajudicial, summary or arbitrary execution
"1. 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.
"2. With regard to the allegations against some members of the Tatmadaw (Myanmar Armed Forces) in Kayin State in the first paragraph under this heading, the events mentioned have not been found in either military or civilian reports. Neither have any reports of such events ever been received from the local populace.
"3. Since names such as 'Lu Thaw Township' and 'Mudraw District' that appear in the allegations are used only by Kayin armed groups, these allegations could only be the fabrications of the Kayin armed groups.
"4. In alleged cases of murder and rape there exist no specific details of which particular Tatmadaw member perpetrated rape against which particular Kayin woman. If there could be a precise and concrete evidence and proof, the guilty person will be uncovered and action will surely be taken in accordance with law.
"5. In Shan State, air strikes were made only on strongholds of the Ming Tai Army armed drug traffickers during the military operations against them by the Tatmadaw. The strikes were carried out only during the time of the operations in the months of May and June 1994 and there were no air strikes on 10 July 1994 as alleged.
"6. Within the area of operation, the reason that the populace have fled was not because they were forced to do so by the Tatmadaw. The villagers from around this area were sympathizers and supporters of Khun Sa and his group, and were actively involved in such activities as poppy cultivation, opium production and drug trafficking. When the Tatmadaw columns approached the area, they fled because they were afraid that legal action would be taken against them.
"7. Members of the Tatmadaw have to observe not only the Defence Services Act and the Defence Services Rules, but also the Civil and Criminal Procedures. A member of the Tatmadaw who breaks the law is punished by both the military and civil courts. According to the Defence Services Act, murder and rape are crimes for which the maximum sentence of the death penalty can be meted out.
"B. Arbitrary arrest and detention
"8. 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. (Reference: paragraph 5)
"9. Daw Aung San Suu Kyi is restrained after 20 July 1994 in accordance with section 10 (b) and section 14 of the Law to Safeguard the State against the Dangers of Those Desiring to Cause Subversive Acts. Under section 10 (b) of the said law, the Central Body, consisting of the Minister for Home Affairs as Chairman and the Minister for Defence and the Minister for Foreign Affairs as members, may restrain a person against whom action is taken, up to one year, for safeguarding the State against danger. If it is necessary to continue the restraint of the person against whom action is taken, on the completion of one year, the Central Body may continue the restraint, with the prior sanction of the Council of Ministers, year by year, up to five years. Hence, a person against whom action is taken may be restrained for one year in accordance with section 10 (b) of the Law to Safeguard the State against the Dangers of Those Desiring to Cause Subversive Acts, and restraint may be continued against that person, year by year, up to five more years in accordance with section 14 of the said law.
(Reference: paragraph 7)
"10. The allegation that seven persons, who were passively observing a Swiss national displaying a banner in front of Yangon City Hall and demanding the release of Daw Aung San Suu Kyi on 27 May 1994 were reported to have been arrested, is not true. No one was arrested nor interrogated.
(Reference: paragraph 8)
"11. On 4 July 1994, security personnel of Yangon Airport caught Khin Zaw Win with seditious anti-government literature and computer disks and confidential data from the Ministry of Energy, together with 62 polished rubies and sapphires and undeclared foreign currency, which he was trying to smuggle out of the country. Since December 1992, Dr. Khin Zaw Win and his colleagues . U Khin Maung Swe, U Sein Hla Oo and Daw San San Nwe - met with foreign journalists and contacted diplomats of some foreign embassies to send news comments that were against or were critical of the Government in order to make foreign Governments misunderstand the Government of Myanmar. They also made frequent contacts with a representative sent by the All-Burma Student Democratic Front terrorist group and the expatriate Sein Win group to exchange information and provide news and manuscripts for publications of these terrorist groups in the jungles. They also distributed seditious documents from the expatriate groups, some of which were seized from their houses by the authorities.
"12. Accordingly, the Mingaladon Township Court found Dr. Khin Zaw Win guilty of illegal acts:
"(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.
"13. 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 was sentenced on 6 October 1994 to two years' imprisonment with labour.
(Reference: paragraph 9)
"14. On 21 July 1994, a Tatmadaw column found 105 huts belonging to the family quarters of the Mon armed group near Halockhami village while performing duties for the prevalence of peace and security in that area. They cleared the huts and caught four members of the Mon armed group. On 22 July 1994, the Tatmadaw column returned to Thanbyuzayat. On the way back, they discovered about 1,000 timber logs felled by the Mon armed group, which were about to be smuggled out. At that site, seven civilians were held for questioning. They were later released and only the four members of the Mon armed group were detained. The Tatmadaw column only entered and cleared a camp of the family members of the Mon armed group, situated near the Halockhami Mon camp. The Tatmadaw column never entered the Halockhami camp. The column was just performing its duty for the prevalence of peace and security of the area.
(Reference: paragraph 10)
"15. The Mingaladon Township Court found U Khin Maung Swe, U Sein Hla Oo, Daw San San Nwe and her daughter Ma Myat Mo Mo Tun 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 their 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.
"16. 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.
"17. The above-mentioned persons had the right of defence and the right to have legal defence counsel for their cases.
"18. 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.
"19. When legal action was taken against Dr. Khin Zaw Win and his colleagues, Daw San San Tin was not included.
(Reference: paragraph 12)
"20. Thet Khine was a member of the 'Burma Communist Party' underground movement. He attempted to cause injury to himself while serving his sentence in Insein Prison. He was hospitalized, but did not die in Insein Prison on 15 July 1994 as alleged. He is still living.
"C. Torture and other cruel, inhuman or degrading treatment
"21. Torture and other cruel, inhuman or degrading treatment are illegal in the Union of Myanmar. Under section 330 of the Penal Code, whoever voluntarily causes hurt for the purpose of extorting confession shall be punished with imprisonment for a term which may extend to seven years and shall be liable to fine. Under section 24 of the Evidence Act, a confession made by an accused person is irrelevant in a criminal proceeding, if the making of confession appears to the court to have been caused by any inducement, threat or reward.
"22. Under section 43 of the Police Act, whoever commits torture on any detainee is liable to both imprisonment and fine. Under the Myanmar Police Manual, police officers of all ranks are rigorously required not to do anything that might tarnish the image of the police force even with the slightest show of harshness or violence in the treatment of persons in custody. The maltreatment of defenceless persons will lead to the dismissal of the guilty police officer. It is, therefore, clear that torture and other cruel, inhuman or degrading treatment are prohibited by the relevant laws in Myanmar.
(Reference: Paragraph 15)
"23. There exist some members of Tatmadaw who break the law and actions have been taken against them. But with regard to the allegation that 12 women from Won Mon village and Won Tse village circle in Laikha Township were gang-raped by some Tatmadaw personnel, no reports from civil or military have been received and no information about the alleged incidence has been received from the local populace. Here again, no concrete proof has been provided.
"D. Forced labour
"24. With regard to allegations of forced portering, the use of civilians as labourers in Myanmar has been practised since the time of the colonial rule, under the laws promulgated by the British. Following independence from the British, successive Governments have continued this practice according to the law.
"25. An abstract of the instructions concerning the use of civilian labourers by the Tatmadaw is provided herewith: Members of the Tatmadaw who are on active duty and who are unable to perform certain tasks can hire civilian labourers to assist them. The labourers must be paid from the time they leave their respective homes until they return on completion of their duty. Apart from the daily wages, they are entitled to receive rail and steamer travelling warrants or cash to cover the actual cost of transport to and from their homes and the operation area. The respective military unit has the responsibility of providing accommodation, messing, medical cover, and social welfare benefits for the hired labourers. Daily wages for these persons must be commensurate with those prevailing in the area.
"26. According to instructions issued by the Office of the Quartermaster General on 30 March 1993, a civilian labourer is to receive a daily wage of 20 kyats. In addition to the daily wage, the following daily rations are to be issued:
(a) Rice: 28 ounces;
(b) Cooking oil: 1.75 ticals
(c) Salt: 1.75 ticals
(d) Split peas: 5 ticals
(e) Saltfish: 5 ticals (in areas where saltfish is not available, four ounces of canned food may be substituted).
"27. Civilian labourers used in operation areas are looked after by the Tatmadaw. Besides giving out daily wages, the Tatmadaw provides medical care for sickness and injuries. A compensation equivalent to 36 times a month's earning is paid to the family on the death of a labourer. These matters are carried out systematically according to the Defence Services Council Order No.17/90 issued by the Office of the Quartermaster General on 3 September 1990.
"28. It can therefore be seen that the Tatmadaw is using civilian labourers or porters systematically, according to the law.
"29. The allegations that the Tatmadaw has recruited porters by force from big cities such as Tachileik, Kyaington and Taunggyi to use in the military offensive against the drug warlord Khun Sa are false.
"30. The reason why the Tatmadaw has to use such recruited civilian labourers is that there exist armed groups that terrorize and endanger the lives of Myanmar citizens. As the terrain of Myanmar is mountainous and thickly forested, many places are not accessible to vehicles. In order to overcome the difficulty, the State Law and Order Restoration Council has been inviting armed groups to return to the legal fold. As a result, 13 such groups have done so and the problem of having to use recruited civilian labourers or porters no longer exists in the areas once occupied by them. The porter problem continues to be present only in the Kayin, Karenni and Mon regions.
"31. For the United Nations to help in the elimination of the use of porters, it would be helpful to provide support for the regional development projects and anti-narcotic endeavours undertaken by the Government of Myanmar. Furthermore, it is not helpful to the process of reconciliation, if certain outside organizations continue to provide support to the Kayin and Mon armed groups. The Government of Myanmar wishes to promote brotherhood among its peoples and solve all problems peacefully. Without outside influences complicating the issues, unfounded allegations will soon fade away.
"32. Regarding allegations of other forced labouring, it has always been a tradition in the Myanmar culture of donating labour in the building of pagodas, monasteries, roads and bridges. A belief persists that doing so leads to mental and physical well-being. Those who can afford to, donate money, while those who cannot, donate their labour. It is widely accepted that voluntary work for the good of the community is not tantamount to forced labour or a violation of human rights.
"33. There have been allegations of violation of human rights in connection with the construction of railway lines. Rail links are part of development projects that benefit the local populace and people take part enthusiastically and conscientiously in the construction works. As such, it cannot be construed as forced labour.
"34. Since the State Law and Order Restoration Council assumed State responsibilities, Myanma Railways has been building new railroads. From that time until December 1993, 294.06 miles of new railway lines have been laid down. The construction was divided into 13 sectors, of which 4 were undertaken by the workers of the Myanma Railways.
"35. The following amounts of money have been paid by the Government for the contributors of labour and for other community development projects of the respective areas:
(a) Tadar U Myo Thar sector: K6 lakh for Ngazun Township and K8 lakh for Tadar U Township;
(b) Aungban-Pinlaung sector: K100 lakh for the villagers and K28.43 lakh for compensation for land taken up by the railway line;
(c) Pinlaung-Loikaw sector: K100 lakh for the villagers and K9.12 lakh for compensation for land and houses taken up by the railway line;
(d) Chaung U-Magyee Bok sector and Pakokku-Minywa sector: K82.9 lakh for the villagers.
"36. A medical doctor was assigned to each of the sectors by the Myanma Railways during the construction of the railway lines and the Chief Medical Officer tours the area often in order to provide health care for the local populace.
"37. At present, there are three sectors of railway lines under construction. They are:
(a) Pakokku-Gangaw-Kalay sector (212.12 miles long): a total of K181.7 lakh has been paid out to the villagers of Pakokku subsector and K118.4 lakh for the Kalay subsector;
(b) Shwenyaung-Namhsan sector (153.62 miles long): K103.8 lakh has been paid out to the villagers;
(c) Ye-Dawai sector (100.08 miles long): K124.6 lakh has been paid out to the villagers.
"38. Health care has been provided as in the other areas.
"39. In case of injuries and casualties arising from the construction works, provisions have been made by the Myanma Railways for adequate monetary compensation.
"40. Regarding allegations about minors used as labourers along the railway line, these allegations were made in general with no reference to specific name, address or place. As such, no action can be taken. The Union of Myanmar acceded to the Convention on the Rights of the Child on 16 July 1991 and the Child Law was promulgated on 14 July 1993. A National Committee, State/Division and District Level Committees concerning the rights of the child have formed, and there have been no complaints about forced child labour as alleged.
"41. If a person is found guilty of forcing a child to work under life-threatening or dangerous conditions, or making a child engage in work that would result in contracting disease, the person will be sentenced to six months' imprisonment or a fine of K10,000 or both.
"G. The
situation of refugees from
"42. The Buthidaung and Maungdaw areas in Rakhine State share a common border with Bangladesh and, from time to time, people from the Bangladesh side cross over and settle in these areas. They are drawn for reasons such as the spacious land, the presence of relatives, the fertile land for agriculture.
"43. In early 1992, the Government of Myanmar started construction projects for the development of the border areas. For some reason, these projects created concern among some in the regional community as well as members of the kalasoe armed groups which were based in the other country and who would infiltrate into Myanmar from time to time. Consequently, giving the reason of having to contribute labour for the construction projects, they started to cross over to the other side individually or in groups. About that time, news spread that relief goods were being distributed freely in the other country. Thus, starting from the second week of January 1992, whole families began to cross over. Also during 1991 when authorities concerned took normal measures throughout the country for the issuing of Citizen Identity Cards, some persons from these areas who dare not face scrutiny also fled over to the other side. At no time was there any forced relocation.
"44. The programme for voluntary repatriation to Myanmar of the area residents began in September 1992 after talks between the Myanmar and Bangladesh authorities. Starting from February 1994, a liaison office of the Office of the United Nations High Commissioner for Refugees (UNHCR) was opened in Yangon and, shortly after that, UNHCR field officers were on the ground to assist with the voluntary and safe repatriation. The process of receiving returnees from Bangladesh is going smoothly. There have been 17 high-level meetings of the Myanmar and Bangladesh authorities regarding the repatriation process. As at 5 October 1994, 81,212 people have returned out of their own will; 273,704 people have been screened by the Bangladesh authorities and as at 27 February 1994 the number screened and received by the Myanmar side was 135,316. The programme is targeted to be completed during 1995.
"45. The people living in camps inside Thailand along the border with Myanmar are the family members of the armed groups. They live in the areas along the border line where the armed groups operate and they make frequent cross-overs to the other side. When armed clashes occur near the border, these family members of the armed groups cross over the border and camp out temporarily on the other side.
"46. With regard to the alleged attack on the Halockhami Mon camp by a Tatmadaw column, the true events are as follows: On 21 July 1994, a Tatmadaw column sited and cleared 105 huts belonging to the family quarters of the Mon armed group. Four members of the Mon armed group were captured at the site. Upon questioning, it was revealed that there was a big camp with nearly 2,000 persons at the base of a hill to the north-west, and that there were about 40 members of the armed group on the hill. As the Tatmadaw column proceeded to that area, it clashed with the armed group. Further skirmishes took place on 22 July 1994. During these encounters, one member of the Tatmadaw gave his life while two others were wounded. The Tatmadaw column did not move into the Halockhami Mon camp, but returned to Thanbyuzayat. On the way back, they discovered about 1,000 timber logs felled by the Mon armed group which were about to be smuggled out. At the site, seven civilians were held for questioning. They were later released, and only the four members of the Mon armed group were detained. The Tatmadaw column only entered and cleared a camp occupied by over 300 family members of the Mon armed group, situated near the Halockhami Mon camp. They never entered the Halockhami camp. The Tatmadaw column was only performing its duty for the peace and security of the area and there has never been any ill-treatment or human right violations against the area residents. The people living in this camp crossed over into the neighbouring country for reasons of their own.
"47. According to the Thai newspapers, it is learnt that about 5,000 Mons crossed over into Thailand. The so-called 'Mon refugees' returned to Myanmar from 9 to 15 September 1994 because of persuasion by the Thai authorities, and because of shortage of food supplies."
4. The following is the full text of the Government of Myanmar's response to the five specific questions the Special Rapporteur put to the Government of Myanmar in his letter dated 5 October 1994 (see A/49/594, para. 8):
"Responses to the queries made by the Special
Rapporteur on the situation of human rights in
(Response to question 1)
"1. The Myanmar authorities, in the statements made since action had to be taken against Daw Aung San Suu Kyi, made known the reasons for restraining her:
(a) That she 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 a 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 under section 10 (b) of the Law, and with the 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.
(Response to question 2)
"10. Regarding her physical well-being, other than being allowed to move outside her compound, she is free to live as she wishes within her property and enjoy all other privileges. She lives as she pleases, listens to the radio, watches television, reads, writes, exercises, sings and plays the piano and guitar. She has always had one maid to help her.
"11. She has no social difficulties. She can meet freely with her immediate family, and since the beginning of her restraint, her husband, Mr. Michael Aris, has visited her nine times, her elder son Alexander five times, and her younger son Kim eight times. She is allowed to write freely to her family and receive correspondence and parcels from them.
"12. She can meet freely with relatives who come to meet and live within her compound. She can also invite revered monks to her house to offer soon alms to them.
"13. Apart from giving Congressman Bill Richardson the opportunity to meet with Daw Aung San Suu Kyi two times when he last visited Myanmar, arrangements were made for her mother-in-law, Mrs. Evelyn Aris, on her arrival in Yangon on 28 October 1994, to spend a week together with Daw Aung San Suu Kyi.
"14. Daw Aung San Suu Kyi's health is in a good state.
(Response to question 3)
"15. The Chairman of the State Law and Order Restoration Council, Senior General Than Shwe, and First Secretary Lieutenant General Khin Nyunt, met with Daw Aung San Suu Kyi on 20 September 1994. Subsequently, another meeting took place between Lieutenant General Khin Nyunt and Daw Aung San Suu Kyi on 28 October 1994. Brigadier General Than Oo, the Judge Advocate General, and Brigadier General Tin Aye, the Inspector General of the Defence Services, were also present at the meeting. Such meetings are expected to take place again. Meetings with Daw Aung San Suu Kyi are regarded as purely an internal affair of Myanmar.
(Response to question 4)
"16. In its Declaration No.11/92 of 24 April 1992, the State Law and Order Restoration Council declared that it would convene a national convention within six months for the purpose of laying down basic principles to draft a new constitution, and that it would meet within two months with the leaders of the representatives elect of the political parties and independent representatives elect.
"17. A 15-member Steering Committee was formed on 28 May 1992, to coordinate with the representatives elect concerning the convening of a national convention. The coordinating meetings were held on 23 June, 30 June and 10 July 1992. Representatives from the National League for Democracy, Shan Nationalities League for Democracy, National Unity Party, Union Pa-O National Organization, Mro alias Khami National Solidarity Organization, Shan State Kokang Democratic Party, Lahu National Development Party and one independent representative attended these meetings, at the end of which a report on the type and number of delegates to attend the National Convention was submitted.
"18. The State Law and Order Restoration Council formed a National Convention Convening Commission according to Declaration No.13/92 of 2 October 1992. The duties and responsibilities of the Commission are as follows:
(a) To convene a national convention for laying down basic principles in order to draft a constitution;
(b) To ensure that the delegates keep to the following objectives during their discussions:
(i) Non-disintegration of the Union;
(ii) Non-disintegration of national unity;
(iii) Perpetuation of national sovereignty;
(iv) To establish and promote a genuine multi-party democratic system;
(v) To uphold the noble values of justice, liberty and equality;
(vi) For the Tatmadaw to take part in the national political leadership role of the State;
(c) To make arrangements for the delegates to be able to present their views, suggestions and proposals systematically.
"19. The Convening Commission for the National Convention, in order to be able to carry out its duties effectively, formed a National Convention Convening Work Committee and a Management Committee for Convening the National Convention.
"20. The National Convention Convening Commission, on the basis of the discussions at the coordinating meetings, decided that the following categories of representatives should attend the National Convention:
(a) Representatives from political parties;
(b) Representatives-elect;
(c) Representatives of national racial groups;
(d) Representatives of peasants;
(e) Representatives of workers;
(f) Representatives of the intelligentsia and technocrats;
(g) Representatives of state service personnel;
(h) Other invited personages.
"21. The State Law and Order Restoration Council issued Declaration No.14/92 on 5 November 1992, stating that the National Convention would be held on 9 January 1993.
"22. Fifteen chapters to be included in the constitution were agreed upon during the plenary session of the National Convention held from 9 January to 7 April 1993.
"23. One hundred and four principles which will serve as the basis for the new constitution were agreed upon during the plenary session of the National Convention held from 7 June to 16 September 1993.
"24. The plenary sessions held from 18 January to 9 April 1994 produced chapters on the State, the State structure and the Head of State.
"25. The plenary session reconvened on 2 September 1994, and the Chairman of the National Convention Convening Work Committee clarified basic facts and suggestions concerning the self-administered areas, legislature, executive branch and judiciary.
"26. At present, the delegates attending the National Convention are preparing papers reflecting their views and suggestions to submit to the National Convention Convening Work Committee.
"27. Once all the papers from the various delegate groups have been submitted to the National Convention Convening Work Committee, they will be presented at the plenary session. Subsequently, the details of the basic principles will be worked out."
-----
************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************
UNITED NATIONS
General Assembly
Distr. GENERAL
A/50/568
16 October 1995
ORIGINAL: ENGLISH
Fiftieth session
Agenda item 112 (c)
HUMAN RIGHTS QUESTIONS: HUMAN RIGHTS SITUATIONS AND REPORTS OF SPECIAL RAPPORTEURS AND REPRESENTATIVES
Situation of human rights in Myanmar
Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the
General Assembly the interim report prepared by Mr. Yozo Yokota, Special
Rapporteur of the Commission on Human Rights on the situation of human
rights in Myanmar, in accordance with Commission on Human Rights resolution
1995/72 of 8 March 1995, and Economic and Social Council decision 1995/283
of 25 July 1995.
ANNEX
Interim report prepared by Mr. Yozo Yokota, Special
Rapporteur of the Commission on Human Rights on the situation of human rights
in Myanmar, in accordance with Commission on Human Rights resolution 1995/72 of
8 March 1995 and Economic and Social Commission decision 1995/283 of
CONTENTS
Paragraphs
I. INTRODUCTION 1-5
II. PROPOSED VISITS TO MYANMAR BY THE SPECIAL RAPPORTEUR 6-11
III. MEMORANDUM OF ALLEGATIONS TO THE GOVERNMENT OF MYANMAR 12
IV. RESPONSE OF THE GOVERNMENT OF MYANMAR TO THE MEMORANDUM
OF THE SPECIAL RAPPORTEUR 13-14
I. INTRODUCTION
1. On 8 March 1995, at its fifty-first session, the Commission on Human
Rights adopted without a vote resolution 1995/72 entitled "Situation of
human rights in Myanmar". In paragraph 23 of the resolution, the
Commission decided to extend for one year the mandate of the Special
Rapporteur to establish or continue direct contacts with the Government and
people of Myanmar, including political leaders deprived of their liberty,
their families and their lawyers and requested the Special Rapporteur to
report to the General Assembly at its fiftieth session and to the
Commission on Human Rights at its fifty-second session. The present
report, which constitutes a preliminary report by the Special Rapporteur,
is being presented in accordance with that request. A final report will be
submitted to the Commission on Human Rights at its fifty-second session.
2. In the same resolution, the Commission, inter alia: noted with
particular concern that the electoral process initiated in Myanmar by the
general elections of 27 May 1990 had not yet reached its conclusion;
deplored the fact that political leaders remained deprived of their
liberty, in particular elected representatives and Nobel Peace Prize
laureate Daw Aung San Suu Kyi; expressed its grave concern at the
violations of human rights, which remained extremely serious, in
particular, the practice of torture, summary and arbitrary executions,
forced labour, including forced portering for the military, abuse of women,
politically motivated arrests and detention, forced displacement, important
restrictions on the freedoms of expression and association, and the
imposition of oppressive measures directed at ethnic and religious minority
groups; and expressed its concern about the continuous problems created in
neighbouring countries by the continuous flows of refugees from Myanmar.
The Commission also expressed its grave concern over the offensive against
the Karen National Union, Burmese student activists and other groups of the
political opposition.
3. In addition to the above, the Commission took note of the fact that the
Government of Myanmar: had acceded to the Geneva Conventions of 12 August
1949; had withdrawn several reservations it had entered concerning the
Convention on the Rights of the Child; had observed cease-fire agreements
with ethnic groups; had freed a certain number of political prisoners; and
had received the Special Rapporteur for a visit to Myanmar.
4. On 25 July 1995, the Economic and Social Council, in its decision
1995/283, approved Commission resolution 1995/72.
5. The present preliminary report is submitted to the Secretary-General of
the United Nations for dissemination to all States Members of the United
Nations.
II. PROPOSED VISITS TO MYANMAR BY THE SPECIAL RAPPORTEUR
6. On 19 July 1995, following the lifting of restrictions against Daw Aung
San Suu Kyi, the Special Rapporteur addressed the following letter to the
Government of Myanmar requesting a visit to the country in order to meet
with her:
"I have the honour to refer to Commission on Human Rights resolution
1995/72 of 8 March 1995, by which my mandate as Special Rapporteur on the
situation of human rights in Myanmar was extended for a fourth year.
"By paragraph 23 of resolution 1995/72, the Commission called upon the
Special Rapporteur 'to establish or continue direct contacts with the
Government and people of Myanmar, including political leaders deprived of
their liberty'. Paragraph 25 urged 'the Government of Myanmar to cooperate
fully and unreservedly with the Commission and the Special Rapporteur and,
to that end, to ensure that the Special Rapporteur effectively has free
access to any person in Myanmar whom he may deem appropriate to meet in the
performance of his mandate, including Daw Aung San Suu Kyi'.
"Accordingly, I would be most grateful to continue benefitting from the
cooperation of your Excellency's Government so that I may provide the
General Assembly and the Commission with an accurate and comprehensive
assessment of the situation of economic, social, cultural, civil and
political rights in Myanmar. In this regard, and given the recent decision
of your Government to lift the restrictions placed on Ms. Aung San Suu Kyi,
I would wish to visit your country to meet with her. On the same occasion,
I would welcome the opportunity to have discussions with your Government's
representatives. This exceptional mission will enhance the accuracy of my
report to the General Assembly, in which all the recent developments could
be reflected. Specifically, and keeping in mind the schedule of the
General Assembly, I would hope that your Government would agree to my visit
from 21 to 25 August.
"I wish to note in this connection that it would remain my intention to
visit Myanmar for a lengthier period in October 1995 as I have done in each
of the past few years. I will address this matter in greater detail in a
future letter.
"Hoping that this would be acceptable to your Excellency's Government,
let me also restate my commitment to accord full consideration of your
Government's views and that, as such, I am at your entire disposal to
continue our dialogue about the situation of human rights in Myanmar."
7. On 11 August 1995, the Special Rapporteur received a letter from the
Permanent Representative of Myanmar to the United Nations Office at Geneva,
in which he communicated his Government's reservation to such a visit:
"I have the honour to refer to your letter of 19 July 1995, addressed to
His Excellency the Minister for Foreign Affairs of the Union of Myanmar,
expressing your desire to visit Myanmar from 21 to 25 August 1995 in
accordance with the provisions contained in resolution 1995/72 of the
Commission on Human Rights.
"In this connection, I would like to inform you that the authorities
concerned in Yangon have responded that it would be appropriate for you to
journey to Myanmar at a later date as had been the case on previous
occasions.
"I trust that you
understand and plan to undertake
your trip to
at a later date this year as originally proposed by you."
8. On 14 August 1995, the Special Rapporteur addressed the following
letter to the Government of Myanmar, in which he reiterated his wish to
undertake a short visit to the Union of Myanmar in the course of August:
"I have the
honour to refer to a letter addressed to me on
by your Permanent Representative in Geneva, Ambassador U Aye, by which you
communicated your Government's reservation of my proposal to visit the
Union of Myanmar between 21 and 25 August 1995. As Special Rapporteur on
the situation of human rights in Myanmar, I would like to bring your
Government's attention on the necessity for me to visit the Union of
Myanmar during these specific dates.
"In the performance of my mandate, I have always endeavoured to establish
direct contact with the Government and people of Myanmar. In this respect,
I have never underestimated the importance of my having direct access to
sources of information, including your Government's comments, in order to
allow me fully and reliably to discharge my mandate in reporting to the
States Members of the United Nations concerning the situation of human
rights in Myanmar.
"In the past years, my requests to meet with Daw Aung San Suu Kyi were
consistently denied, despite decisions of the Commission on Human Rights
urging the Myanmar Government to cooperate fully. This year, following
your Government's decision to lift the restriction to which Daw Aung San
Suu Kyi has been subject since 1989, I believe that it is very important to
meet with her as soon as possible to discuss topics pertaining to my
mandate. Such a meeting is also expected by the international community
and a summary of the discussions would therefore be published in my
forthcoming report to the General Assembly.
"In keeping with my commitment to endeavour to accord full consideration
to your Government's views on the substantive issues raised in my mandate,
including both general and specific allegations of human rights violations
by the Government of Myanmar, this visit could also be a unique opportunity
for me to receive your Government's responses and explanations to the
allegations of human rights violations received by me in the last year.
These comments will be brought directly to the attention of the General
Assembly during its forthcoming session.
"Keeping in mind the deadline for the submission of my interim report to
the General Assembly (September 1995), a visit to Myanmar at the end of
August may be the only opportunity to provide the international community
with an accurate and comprehensive assessment of the situation of economic,
social, cultural, civil and political rights in Myanmar. Indeed, this
exceptional mission will strengthen the accuracy and the actuality of my
report to the General Assembly.
"In view of the above, I would appreciate the cooperation of your
Government in reconsidering the dates proposed by your Government for my
visit to Myanmar and to allow me to travel for five days as originally
requested, i.e., 21 to 25 August 1995.
"In anticipation of receiving your Government's response to this request
at its earliest convenience, and hoping that it may be positively
considered, I remain, yours sincerely."
9. On 4 September 1995, observing that no reply was forthcoming regarding
the Special Rapporteur's proposal to visit Myanmar in August, the Special
Rapporteur addressed another letter to the Government of Myanmar suggesting
other dates for his visit:
"I have the honour to refer to Commission on Human Rights resolution
1995/72 of 8 March 1995 by which my mandate as Special Rapporteur on the
situation of human rights in Myanmar was extended for a fourth year. As
you may be aware, at its most recent session the Economic and Social
Council approved Commission resolution 1995/72 by its decision 1995/283 of
25 July 1995.
"In the performance of my mandate, I have always endeavoured to establish
direct contact with the Government and people of Myanmar. In this respect,
I have never underestimated the importance of my having direct access to
sources of information, including your Government's comments, in order to
allow me fully and reliably to discharge my mandate in reporting to the
States Members of the United Nations concerning the situation of human
rights in Myanmar.
"This year, following your Government's decision to lift the restriction
to which Daw Aung San Suu Kyi has been subject since 1989, I have requested
in a letter addressed to your Government on 19 July 1995 to undertake a
short visit in August to meet with her. In a letter addressed to me on 11
August 1995 by your Permanent Representative in Geneva, Ambassador U Aye,
you communicated your Government's reservation of my original proposal to
visit Myanmar between 21 and 25 August 1995. Instead, your Government
expressed its view that it would be more appropriate for me to postpone my
visit to a later date.
"Accordingly, I would be most grateful to continue benefitting from the
cooperation of your Excellency's Government so that I may provide the
Commission and the General Assembly with an accurate and comprehensive
assessment of the situation of economic, social, cultural, civil, and
political rights in Myanmar in accordance with the provisions contained in
Commission on Human Rights resolution 1995/72. In this regard, and in
keeping with my commitment to endeavour to accord full consideration to
your Government's views on the substantive issues raised in my mandate,
including both general and specific allegations of human rights violations
by the Government of Myanmar, I would wish to visit again your country.
Specifically, and keeping in mind the deadline for the submission of my
report to the Commission on Human Rights as well as your Government's
suggestion, I would hope that your Government would agree to my visit at
about the same time as it had been the case during my previous visits; may
I suggest from 8 to 17 October 1995.
"Hoping that this would be acceptable to your Excellency's Government,
let me also restate my commitment to accord full consideration of your
Government's views and that, as such, I am at your entire disposal to
continue our dialogue about the situation of human rights in Myanmar."
10. On 28 September 1995, in a letter from the Permanent Representative of
Myanmar to the United Nations Office at Geneva, the Special Rapporteur was
informed that the proposed dates for his visit had been tentatively agreed
to.
11. Since the Special Rapporteur intends to visit Myanmar and Thailand in
October, it is not feasible to reach conclusions for the present report on
the many allegations on violations of human rights that have been reported
to him. It is hoped that information gathered during the Special
Rapporteur's visit, as well as continued dialogue with the Government of
Myanmar, will facilitate conclusions to be included in the Special
Rapporteur's comprehensive report to the Commission on Human Rights at its
fifty-second session.
III. MEMORANDUM OF ALLEGATIONS TO THE GOVERNMENT OF MYANMAR
12. By a letter dated 5 September 1995 to the Minister for Foreign Affairs
of Myanmar, the Special Rapporteur transmitted the following memorandum of
allegations received by him of human rights violations reported to have
occurred in Myanmar:
"A. Summary or arbitrary execution
"1. As noted in his report to the Commission on Human Rights at its
fortyninth session (E/CN.4/1993/37), the Special Rapporteur welcomed the
fact that all death sentences had been commuted to life imprisonment. This
year the Special Rapporteur received no information of an explicit or
systematic government policy encouraging summary killings.
"2. However, there continued to be credible reports of instances of
brutality sometimes resulting in the killing of civilians by Myanmar
military forces under a variety of circumstances.
"3. In the minority-dominated areas where insurgencies have been taking
place, many of the allegedly killed were civilians who were accused of
either being insurgents or collaborating with insurgents. The following
are examples of allegations received:
"(a) A 25-year-old Mon labourer who escaped from portering reported that,
on 8 April 1995, soldiers belonging to Light Infantry Battalion No. 403,
while coming from the Three Pagodas Pass, entered the Kayin village of
Kamon and shot and killed four Kayin villagers on suspicion of being Kayin
soldiers;
"(b) On 3 May 1995, a villager from Bee T'Kaa village was allegedly
arrested and subsequently executed by soldiers belonging to Battalion No.
230, under the command of Kyaw Myint Taun, upon accusation of helping the
Kayin National Liberation Army.
"4. Other reports from non-governmental sources have described cases of
civilians who were allegedly executed when they resisted becoming porters
for the army or were beaten to death while being used as porters. Two
examples are as follows:
"(a) On 3 November 1994, a 25-year-old man was reportedly shot when
fleeing from troops belonging to Infantry Battalion Nos. 62 and 31, under
the command of Captain Aye Min, coming to arrest villagers for portering in
Kawgo village, Mon state;
"(b) In March-April 1995, two porters, aged about 30 and 50 years
respectively, were beaten to death by soldiers belonging to Battalion No.
104 for requesting water after supplies had been cut during a battle near
Ka Neh Lay.
"5. The army is also reported to have executed civilians for failure to
provide services demanded. These may include labour, food, money or arms.
For example, at 8 p.m. on 11 September 1994, Local Infantry Battalion No.
33, Infantry Battalion No. 27, Company 1 (Battalion Commander Chit Thaung,
Second-in-Command Zaw Myint and Company 1 Commander Captain Win Tint)
reportedly entered Kyaun See village in Mon state and opened fire on
villagers running away for fear of being conscripted as porters. Three men
(aged 18, 21 and 23 years respectively) were reportedly arrested. At 4
a.m., on 12 September 1994, the 21-year-old man was reportedly stabbed with
a knife in the throat. It was reported that the 23-year-old man's nose was
cut off, and that he was stabbed in the eyes and both ears. The 18-year-
old man's teeth and left arm were broken and the left side of his face was
cut with a knife. It was reported that the three men died in custody.
"6. The Special Rapporteur would appreciate receiving information
describing any investigations into the above allegations undertaken by the
Government. Please detail any steps taken internally by the military or by
the civilian authorities, legal or otherwise, to prevent or curtail the
occurrence of extra-judicial executions in contravention of article 3 of
the Universal Declaration of Human Rights and article 3 common to the Four
Geneva Conventions of 12 August 1949. Please indicate whether any military
personnel have been tried and sentenced, dismissed from duty or otherwise
sanctioned for their part in any verified violations; whether the Code of
Criminal Procedure provides for sanctions for theses violations, what
remedies it may provide for the relatives of the victims and if any such
petitions have been brought and to what effect.
"B. Arbitrary arrest and detention
"7. The Government of Myanmar continued to release political prisoners in
1995, although the exact numbers could not be verified. According to
information provided by the Government of Myanmar, 31 detainees were
released from various jails on 15 March 1995 as a gesture honouring the
Golden Jubilee Armed Forces Day. The Special Rapporteur welcomed this
decision and on 24 March 1995 addressed the following letter to the
Minister for Foreign Affairs of Myanmar:
'In my capacity as Special Rapporteur, I welcome the decision taken by
the Myanmar authorities to release, on 15 March 1995, 31 detainees from
various centres of detention in Myanmar. I am particularly pleased to note
that among these detainees were two prominent political party leaders from
the National League for Democracy (NLD), U Kyi Maung and U Tin Oo, whom I
met in Insein Prison during my two previous visits to your country in 1993
and 1994.
'As Special Rapporteur, I believe that the release of these persons is an
encouraging step towards national reconciliation and the democratization of
Myanmar. In this connection, I trust that their release is without
condition. I also hope that this recent decision will be followed in the
near future by the unconditional release of all other persons who remain in
detention on account of their opinions.'
"8. However, the Special Rapporteur has continued to receive reports from
reliable sources indicating that Myanmar citizens (especially political
party leaders) continue to be subject to restrictions on their liberty,
especially freedoms of expression and association.
"9. According to several reliable sources, on 2 June 1995 the Myanmar
authorities again arrested U Kyi Maung, a retired Colonel and leading
spokesman for NLD, who had been freed on 15 March 1995 after having been
imprisoned for about five years. It is further reported that the
Government of Myanmar released U Kyi Maung on condition that he would not
become involved in any political activity or not contact journalists or
foreign diplomats. It was reported that U Kyi Maung had been placed in
detention shortly after he held talks with the British Ambassador to
Myanmar. According to information received, U Kyi Maung was arrested with
the following persons: U Tun Shwe (a former diplomat), U Thu Wai (former
Chairman of the opposition Democracy Party, which no longer exists),
Professor Than Hla (former Rector of Yangon University), U Aye Maung
(friend of Professor Than Hla), U Chit Tun (former journalist for the
Financial Times (London) and United Press International (UPI)) and Ma
Theingi (former private secretary to Daw Aung San Suu Kyi). According to
information received by the Special Rapporteur, Ma Theingi was released on
3 June, U Chit Tun was released shortly thereafter, and U Kyi Maung and the
others were released on 8 June 1995.
"10. In mid-June 1995, U Tun Shwe (a veteran politician), U Thu Wai (former
Chairman of the Democracy Party) and U Htwe Myint (Vice-Chairman of the
Democracy Party) were rearrested and taken to Insein Prison where they are
said to have been sentenced, during a summary trial, to seven years'
imprisonment. All three had served prison terms of various duration in the
past for their non-violent political activity. The charges on which they
were convicted are not known, but it was reported that the three men met
regularly with resident foreigners.
"11. In addition to the above allegations, the Special Rapporteur has
received a list of 15 members of parliament (MPs) still detained as of July
1995. They are:
U Ohn Kyaing, MP-elect for Mandalay South-east-2
U Tin Htut, MP-elect for Einme-1
U Win Hlaing, MP-elect for Tatkon-2
U Saw Naing Naing, MP-elect for Pazundaung, Yangon
U Tin Aung Aung, MP-elect for Manalay North-west-1
Dr. Zaw Myint Aung, MP-elect for Amarapura-1
Dr. Myint Aung, MP-elect for Latha
Dr. Zaw Myint, MP-elect for Henzada-2
U Mya Win, MP-elect for Ingapu-1
U Hla Than, MP-elect for Coco Islands
U Tin Soe, MP-elect for Kyauktada
U Saw Win, MP-elect for Htilin
U Hla Tun, MP-elect for Kyimyindine, Yangon
U Khin Maung Swe (released on 1 May 1992, rearrested in August 1994)
U Sein Hla Oo (released on 1 May 1992; rearrested in August 1994)
"12. With regard to political leaders deprived of their liberty, the
Special Rapporteur would appreciate the Government providing a copy of the
list of persons in detention and of those released during the course of
1995, indicating which among these persons were/are active members of
political parties and those who stood for the general elections of 1990.
"13. Allegedly because of the high level of intimidation discouraging open
political activity, detention for public anti-government activities appears
year after year to be less and less frequent. Nevertheless, the Special
Rapporteur continues to receive allegations. For example, it has been
alleged that on 20 February 1995, during a march celebrating the funeral of
former Prime Minister U Nu, around 50 young activists were arrested. Among
the group, the Special Rapporteur has received the names of the following
persons: Moe Kalayar Oo, Aye Aye Moe, Yi Yi Tun and Cho Nwe Oo (all four
being female students); Maung Maung Oo (a male student who was allegedly
badly beaten when he was arrested by the military intelligence agents);
Maung Maung Win (also known as Mye-Latt); Moe Maung Maung; and Moe Myat Thu
(who is reportedly a student aged 26 who was a close associate of Daw Aung
San Suu Kyi). Moe Myat Thu was reportedly arrested on 20 July 1989 and
spent three years in Insein Prison before being released on 27 April 1992.
It is alleged that he was badly beaten when he was arrested by the military
intelligence agents. According to several sources, the above-mentioned
persons may have chanted slogans during the funeral, but did not engage in
any violent activity.
"14. Reports from various sources continue to describe how an unknown
number of civilians have been arrested as suspected insurgents (or
sympathizers thereto) and how they remain detained in the countryside
prisons, especially in the regions of the country with predominantly non-
Burman population. On 20 March 1995, the following persons were allegedly
arrested at Tachilek: Nang Han Ny from Murng Koo village; Ai Mon from Nuam
Kham; I Yi, along with two other unidentified men and two unidentified
women. In addition, information has been received concerning Ai Yi Long
and Ai Long, who were reportedly arrested on 3 April 1995. It is reported
that these persons are held at No. 24 Intelligence Camp near Ba Suk
Village, where Battalion No. 331 of the State Law and Order Restoration
Council's army is based. It is further reported that all those arrested
were injured upon arrest. It is alleged that Ai Mon had one ear cut off in
front of local people, that Ai Yi had his nose cut and that Nang Han Ny was
beaten on the body. Ai Yi Lung and Ai Ling were said to be held at the
local police station under suspicion of involvement with the Mong Tai Army.
All those arrested are said to be civilians.
"15. The Special Rapporteur would appreciate the Government providing
information regarding the detained persons described above, their places of
detention, the formal charges lodged against them, the judicial guarantees
accorded them before, during and after trial, the sentences received and
whether these persons are allowed regular visits by their families and
legal counsel. In addition, the Special Rapporteur would appreciate being
informed of all steps taken by the Myanmar authorities to ensure the
detained persons' rights to physical integrity.
"16. The Special Rapporteur welcomed with great satisfaction the
announcement, made on 10 July 1995, that restrictions on Daw Aung San Suu
Kyi had been lifted by the Government of Myanmar and that she had been
released. Following this announcement, the Special Rapporteur addressed,
on 11 July 1995, the following letter to the Minister for Foreign Affairs
of the Union of Myanmar:
'I have the honour to address you in my capacity as Special Rapporteur on
the situation of Human Rights in Myanmar, appointed by the Chairman of the
Commission on Human Rights, pursuant to its resolution 1995/72.
'As Special Rapporteur, I welcome the announcement made by Myanmar
authorities, on 10 July 1995, to release Daw Aung San Suu Kyi. In this
connection, I trust that her release is without condition and will enable
her fully to enjoy her liberty and personal freedom in accordance with
international human rights standards.
'As Special Rapporteur, I believe that this decision will be very much
welcomed and appreciated by the international community and could well form
a basis for constructive dialogue and wider progress on the question of
human rights in Myanmar. I also believe that the release of Daw Aung San
Suu Kyi is a very positive and encouraging step towards national
reconciliation and democratization in Myanmar.
'On this occasion, I would also like to express the hope that this recent
decision will be followed in the near future by the unconditional release
of all other persons who remain in detention on account of their opinions.'
"17. Since his appointment in 1992, the Special Rapporteur has followed
very closely the case of Daw Aung San Suu Kyi. In this context, the
Special Rapporteur has challenged the legal basis for the persistence of
the limitations on her rights to freedom of movement, expression and other
equally fundamental rights. At the same time, the Special Rapporteur has
requested the Government of Myanmar to provide him with specific replies to
his inquiries. However, he remains unconvinced by the Government's
arguments in the responses provided. Therefore, in each of his reports and
statements to the General Assembly and the Commission on Human Rights, he
has recommended her release immediately and unconditionally. Prior to
being informed about the announcement of her release, the Special
Rapporteur addressed, on 10 July 1995, the following letter to the Minister
for Foreign Affairs of Myanmar:
'I have the honour to address you in my capacity as Special Rapporteur on
the situation of human rights in Myanmar, appointed by the Chairman of the
Commission on Human Rights, pursuant to its resolution 1995/72.
'In keeping with my commitment to endeavour to accord full consideration
to your Government's views on the substantive issues raised in my mandate,
including both general and specific allegations of human rights violations
by the Government of Myanmar, I would appreciate receiving your
Government's response with regard to the ongoing detention of Daw Aung San
Suu Kyi.
'In a letter dated 5 October 1994, I requested your Government to provide
specific reasons, including reference to precise legal authority, for
keeping Daw Aung San Suu Kyi under house arrest after 20 July 1994, and to
indicate exactly when the Government intends to release her.
'In a note verbale dated 4 November 1994, your Government provided me
with a detailed response concerning the specific legal authority for
keeping Daw Aung San Suu Kyi under house arrest after 20 July 1994.
According to the Myanmar legislation, in the 1975 "Law to safeguard the
State against the dangers of those desiring to cause subversive acts", as
amended in August 1991, it is stipulated under section 10 (b) that a person
may be restrained for up to one year. The same law further stipulates in
sections 13 and 14 the possibility to continue restraint for "a period not
exceeding one year at a time up to a total of five years".
'In the case of Daw Aung San Suu Kyi, your Government has previously
reported that she was restrained in her liberty and effectively placed
under house arrest on 20 July 1989 for an initial period of one year
according to section 10 (b) of the above-mentioned law. According to
section 14 of the said law, the restraints on Daw Aung San Suu Kyi were
continued year by year for the maximum of five years as stipulated in the
law.
'In the light of the above, I understand that there will be no legal
basis under Myanmar legislation for restraining Daw Aung San Suu Kyi after
20 July 1995, assuming her restraint was "necessary" under section 13 of
the above-mentioned Law. If she is not released after this date, her
detention would evidently contravene applicable Myanmar law, irrespective
of any application of the minimum international standards securing liberty
of person, in particular those embodied in the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights and
the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.
'With due regard to my responsibilities, I appeal to your Government to
ensure her release immediately and unconditionally. In my opinion, the
release of Daw Aung San Suu Kyi would also be a positive and encouraging
step towards national reconciliation and democratization in Myanmar.'
"18. The Special Rapporteur hopes that the decision to release Daw Aung San
Suu Kyi will enable her to enjoy her liberty and personal freedom fully
without any condition or restriction. In this connection, the Special
Rapporteur would like to be informed if Daw Aung San Suu Kyi will be
participating in the National Convention which, according to information
received, will reconvene on 24 October 1995.
"19. The Special Rapporteur is concerned after the announcement made on 16
June 1995 by the International Committee of the Red Cross (ICRC) to
withdraw from Myanmar because ICRC's standard requirements for visits to
places of detention (i.e., that it meet prisoners in private, have access
to all prisons and be assured of repeated visits) were rejected by the
Myanmar authorities. The non-acceptance of ICRC's customary procedures for
visits to places of detention followed by this well-recognized organization
in all other countries where it conducts such activities is a negative step
towards amelioration of conditions of detention in Myanmar, especially in
so far as several reports allege ill treatment to be common in Myanmar's
places of detention. Several sources indicate that political prisoners are
generally not given access to proper medical treatment and are sometimes
held in solitary confinement. In this light, the Special Rapporteur would
appreciate receiving an indication from the Government of Myanmar as to
whether it is prepared to resume its dialogue with ICRC and to reach an
agreement with regard to the standards applied by ICRC for visits to places
of detention.
"C. Torture and cruel, inhuman or degrading treatment
"20. The Special Rapporteur has received numerous allegations, often in
considerable detail and from different sources, describing civilians being
subjected to torture or cruel, inhuman or degrading treatment by forces of
the Myanmar military. The allegations include kickings and beatings with
rifle butts or canes on the head and other parts of the body, causing head
injuries, loss of teeth and/or broken bones. Other disturbing reported
methods include submerging victims into water for long periods of time and
pouring hot water over their bodies or into their noses. In some cases,
victims alleged that they had suffered burns and the cutting of parts of
their bodies (e.g., ears and tongue).
"21. According to reports received, torture and ill-treatment would seem to
be a means for the Myanmar authorities to punish citizens who do not comply
with their orders. It also seems to be a common method to extract
confessions from civilians suspected of real or perceived anti-Government
activities. The most vulnerable populations are detainees, village headmen
(who are responsible to the authorities on behalf of their entire
villages), porters in the course of their duties and civilians living in
areas of insurgency. Women are said to be subjected to sexual abuses. It
has also been reported that some victims of torture have to pay bribes to
avoid such treatment.
"22. The following are some examples of the allegations received:
"(a) On 27 December 1994, Captain Htun Way from Battalion No. 376,
Company 1, allegedly arrested a village headman in Plat Wa township, Chin
state. According to the source, the headman was asked to provide
information about persons having passed through his village. He was tied
up when he could not give the information demanded. He was then repeatedly
submerged into water and subsequently punched, beaten with a rifle butt and
kicked. His nose and one rib were broken;
"(b) A former porter (aged 56) who served under<