LEGAL ISSUES ON BURMA JOURNAL No. 5, APRIL 2000
BURMA LAWYERS' COUNCIL
Military Regime to Establish Base on Mars
…or a Human Rights Commission
John Southalan 1
1 Introduction
Recently, the military regime indicated it might establish a human rights commission in Burma. This proposal surprised many groups seeking democracy in Burma, and observers of Burmese politics. Indeed, some consider the regime would have as much success establishing a base on Mars!
The issue of a possible human rights commission in Burma first arose in 19982 but gained prominence because of a visit to Burma by Mr Chris Sidoti, the Human Rights Commissioner of the Australian Human Rights and Equal Opportunity Commission. During his visit, in August 1999, Mr Sidoti met with representatives of the military regime (including ministers and other government officials), the United Nations ('UN'), international non-government organizations ('NGO's), and the National League for Democracy3. His visit attracted considerable comment among Burmese groups and observers: some supporting his visit4, while others criticised his contact with the military regime5 and the proposal of a human rights commission in Burma6.
Some of the responses to Mr Sidoti's visit are part of the ongoing debate over whether any governments or other organisations should have contact with the regime. This article will not address the respective sides in the 'Burma: dialogue or isolation' debate; instead the article considers the practicalities of establishing an effective human rights commission under Burma's current governance.
The human rights commission being contemplated is a type of body existing in many countries and internationally known as a National Human Rights Institution ('NHRI'). The article provides a general background of NHRIs, notes the existing NHRIs in the Asia-Pacific, and addresses some main features of an NHRI. Then, with this background, an analysis is made of the relevant factors in Burma. It is hoped this will provide a basic explanation about NHRIs, which may assist in the ongoing discussion on how such a body could feature in Burma's future. The remainder of this paper is divided into four sections:
2 overview of NHRIs;
3 main NHRI features;
4 relevant factors in Burma; and
5 conclusions.
2 Overview of NHRIs
This section outlines the historical development of NHRI bodies and then discusses the NHRIs in the Asia-Pacific region.
2.1 History and role of NHRIs
The basic role of an NHRI is, as a semi-government body, to assist in protecting and promoting international human rights standards in a country7. There is no universal definition of an NHRI, and their role and powers vary slightly from country to country. However, it is possible to outline basic features of most NHRIs, which include that the body:
· is established by law - either under the country's constitution, a parliamentary statute, or a government or executive order;
· works to assist the education or promotion of human rights;
· provides advice / recommendations to government on human rights matters;
· investigates and resolves complaints of violations committed by public (and sometimes private) individuals and bodies; and
· is independent.
These features are considered in more detail in section 3, below.
It has been repeatedly emphasized that an NHRI is not a substitute for representative parliament or for an independent judiciary. As the UN notes: "The judiciary is the basic structure for protection of human rights at the national level. A national human rights institution, no matter how wide the powers or efficient its operation, can never adequately substitute for a properly functioning judiciary"8.
NHRIs were first considered in the UN system by the Economic and Social Council ('ECOSOC'), which is a subsidiary body of the UN General Assembly. In 1946, ECOSOC suggested countries should establish "information groups or local human rights committees"9, which are seen as the beginnings of current NHRIs. This concept was further refined by the 1960 ECOSOC, which explained these bodies could have a participation and monitoring role on human rights10. In the late 1970's an international seminar proposed guidelines on NHRIs' general functions, which that were later adopted by the UN Commission on Human Rights ('CHR') and UN General Assembly. In 1991, an international conference in Paris outlined what have since become the minimum standards for NHRIs, now known as the 'Paris Principles'. These principles were accepted by the CHR in 1992 and the UN General Assembly in 199311. In 1993, the World Conference on Human Rights adopted the Vienna Declaration and Program of Action ('VDPA') through the consensus of all governments present, including the military regime. The VDPA encouraged governments to establish NHRIs following the Paris Principles12 and the General Assembly recently reaffirmed the importance of governments establishing NHRIs in accordance with the Paris Principles13.
Through these various international developments on NHRIs, in the Paris Principles and the VDPA, we can see the "international community has come to agreement as to the optimal structure and functioning of these bodies"14. The meetings of the UN CHR and General Assembly that accepted the Paris Principles by consensus involved nearly all the world's governments, including Burma's military regime. The regime joined the Vienna World conference that adopted the VDPA by consensus and was also involved in the subsequent UN General Assembly meeting that endorsed the VDPA and called on States to act on the VDPA's provisions15. Through its involvement in these meetings, Burma's military regime is well aware of what an NHRI involves and has already accepted the universal standards for NHRIs.
2.2 NHRI development in the Asia-Pacific
To better understand the role of any future Burmese NHRI, it may assist to review other NHRIs in the Asia-Pacific16. By considering other NHRIs' histories, main roles and powers, it is possible to form a clearer picture of what a Burmese NHRI should be.
The first NHRI established in the Asia-Pacific region, and the second in the world17, commenced in New Zealand in 1978, when what is now the New Zealand NHRI was established under a parliamentary statute. In terms of investigations, the New Zealand NHRI has power to compel the provision of evidence and information. The NHRI also recognizes a need for, and is moving toward, more emphasis on systemic issues rather than just dealing with individual complaints. The New Zealand NHRI differs from most NHRIs in possessing some quasi-judicial power and being able to make binding determinations in some circumstances.
The Australian NHRI, established under parliamentary statute in 1981, was the fourth in the world. Its responsibilities include: legislative and policy development, public awareness and education, dealing with human rights complaints and also discrimination complaints, and national enquiries into systemic problems. The Australian NHRI has power to compel parties to produce information needed for its investigations. The Australian NHRI, more so than other NHRIs in the region, undertakes national enquiries into systemic problems. These inquiries have considered the human rights abuses caused by Australian laws, and the policies and action of government and government agencies.
The Philippines NHRI was established in 1987. This made it the fifth NHRI in the world, however it was the first to be created under and receive specific protection from, its country's constitution (rather than simply be set up under parliamentary legislation or government order which, because they can be amended more easily, offer far less protection). The Philippines NHRI can investigate potential human rights violations either as a result of receiving a complaint or on its own initiative. The NHRI can issue subpoenae forcing parties to provide documents or give evidence for an investigation. The Philippines NHRI has the power to inspect prisons and detention centres and undertakes this work as well as research, education and public information programs, and monitoring government compliance with international human rights standards. One role the Philippines NHRI undertakes, which most of the other NHRIs in the region do not, is prosecutions in the country's courts for certain human rights violations.
The Indonesian NHRI was established, by an order of the Indonesian President18 in June 1993, seven days before the World Conference on Human Rights19. Many people viewed this simply as a political credit-building stunt for the World Conference20 and expected nothing from the Indonesian NHRI. However, the Indonesian NHRI, despite its weak basis (with the risk of simply another Presidential order terminating it), has been complimented by many human rights organizations for its work in improving human rights in Indonesia. Its duties or tasks include: human rights education and awareness, advising government on ratification of international treaties, monitoring and investigating the implementation of human rights, and fostering regional and international cooperation on human rights. The Indonesian NHRI's mandate is perceived as very broad 21. This has advantages in not limiting the Indonesian body's work like some other NHRIs in the region. However, the very wide mandate also creates difficulties by not defining the work on which the Indonesian NHRI should concentrate. Like other NHRIs, the Indonesian body can investigate alleged human rights abuses either as a result of a complaint or on its own initiative. There are currently moves to have the legal basis of the NHRI 'upgraded' from a Presidential Order to parliamentary statute22.
The Indian NHRI was established in 1994, under a parliamentary statute. Apart from investigations, the Indian NHRI's other functions include: jail visiting and reporting, reviewing constitutional and legislative safeguards, implementing international treaties, research, education, publications, court interventions on human rights matters, and assisting NGOs. The NHRI has some powers similar to a court, allowing it to prosecute parties if they fail to provide information as required under the NHRI's powers. The Indian NHRI, like others, needn't wait for a complaint but can investigate matters on its own initiative. The Indian NHRI, perhaps out of necessity given the high number of reported violations it receives, has a strong commitment to focus its investigations and work on longterm, systemic solutions.
In 1996, the main NHRI development in the region was the establishment of Asia Pacific Forum of NHRIs ('APF'). The APF is an organisation made up of the, currently seven, NHRIs in the Asia-Pacific region (India, Sri Lanka, Indonesia, Philippines, Fiji, Australia, and New Zealand). The APF assists in establishing and developing NHRIs and provides opportunity for greater cooperation between the NHRIs (through actions such as information exchanges, training and development for NHRI members and staff, and specialist regional seminars on common themes and needs). The APF's activities are mainly undertaken by its secretariat, which is currently based with the Australian NHRI and receives funding from the New Zealand and Australian governments and the UN. The APF permits NGOs and governments to join its annual meetings.
The Sri Lankan NHRI was established in 1997 under parliamentary statute. Its mandate includes: investigating government compliance with human rights, investigating human rights complaints, advising government on legislation regarding human rights, and promoting human rights education and awareness. The Sri Lankan NHRI has various powers including to: intervene before any court on a matter of fundamental rights; investigate arrests, detentions and disappearances under specified Sri Lankan laws; regularly inspect conditions and welfare of people detained or arrested; summons and receive evidence in the course of any investigations. The statute also established compulsory reporting procedures for arrests under specified laws, requiring the arresting authorities to notify the Sri Lankan NHRI within 48 hours of any such arrest.
In 1999 the Fijian NHRI was established. The Fijian NHRI, like the Philippines NHRI, was also established under the country's national constitution. Commencing in March 1999, the Fijian NHRI has three specified functions: public education of human rights, recommendations to government on compliance with human rights standards, and "promoting and protecting the human rights of all persons in...Fiji"23. A NHRI commenced in Malaysia in April 200024. At this stage, it is not possible to provide any reflection on its activities other than to note its creation has been cautiously welcomed25.
There are other countries in the Asia-Pacific in the process of establishing NHRIs. The governments in Nepal, Bangladesh26, South Korea27 and Thailand28 have all invested considerable time and effort in preparing for the establishment of NHRIs in their countries. Civil society in some of these countries has been dissatisfied with the establishing process or legislation. This was also the case in some of the countries mentioned earlier, and it demonstrates the importance of public involvement in NHRI establishment. Many voices in the civil society in the Asian region consider there is no shortage of semi-official bodies created by governments simply to make political gain, with no real commitment to improving human rights.
The APF has consistently explained an NHRI that does not meet the Paris Principles will not be able to join the APF29. At the international level, though not specifically in relation to the Asia-Pacific region, there is an International Coordinating Committee of National Institutions. This body, like the APF, also emphasises compliance with the Paris Principles, and has recently begun implementing an accreditation process to monitor each NHRI's compliance with the Paris Principles. A recent worldwide meeting of NHRIs encouraged development of NHRIs "in conformity with the Paris Principles, in order to strengthen the protection of human rights and consolidate the rule of law"30.
Essentially, the Paris Principles are aimed at making an NHRI effective. The next section of this article outlines key features for an effective NHRI.
3 Main NHRI features
Through studying the Paris Principles and other NHRIs in the region, it is possible to identify some key elements for the effective functioning of an NHRI. Four of these will be addressed here: independence, jurisdiction / powers, promotion of human rights, and advice / assistance to governments. Then, in section 3.5, there is a short analysis of NHRI relations with government, reflecting on these key features already identified and also some of the experiences of NHRIs in the Asia-Pacific.
3.1 Independence
Independence is perhaps the most important aspect addressed in the Paris Principles. 'Independence' requires the NHRI to be able to operate free from the influence of government, political parties, and other groups or individuals who may affect the NHRI's operation. The Paris Principles identify four areas in which the NHRI must have independence.
The first requirement for independence is legal and operational autonomy. The NHRI must have the power to operate on its own and to be able to force others to cooperate if they will not freely do so.
The second aspect of independence is financial autonomy. The NHRI must have control over its own finances and not be part of the budget of a government department or ministry. Ideally, an NHRI submits its own budget directly to the national parliament for approval.
Appointments and dismissals are the third area of NHRI independence specified in the Paris Principles. An independent system is required for appointment (and, where necessary, dismissal) of NHRI members and senior staff. The system must protect the NHRI from partisan political appointments and also from the threat of dismissal where the government does not like the NHRI's activities. Again, as with the budget, the ideal situation is where these matters are decided by national parliament, which is usually the most representative body in a country.
The fourth area of independence is in composition. The origins and backgrounds of NHRI members and senior staff can act as a further encouragement and aid to the NHRI's autonomy: "Composition of national institutions should be a reflection of its society, and accordingly its members should reflect diversity in sex, ethnic origin, language and political affiliation as appropriate"31. In the Asia-Pacific, one method adopted by some NHRIs like the Indian, New Zealand and Australian, "is to appoint commissioners representing specific vulnerable groups such as minorities [and] women"32.
One matter not addressed in the Paris Principles, and relevant to the issue of independence, is public participation in the process of establishing NHRIs. This is an issue because a new NHRI is most unlikely to meet Paris Principles requirements of independence in appointments and composition if there is no public / civil society / NGO involvement in its establishment. This has been a particular problem in South Korea and Malaysia where the governments have restricted or ignored NGO input into establishing an NHRI, resulting in considerable public opposition to the government's proposals for the NHRI. South Korean NGOs, in particular, have consistently criticised their government's lack of involvement of civil society33. The problems created by many governments failing to properly include public involvement in establishing an NHRI have reached a regional level and are being addressed by the APF34.
3.2 Jurisdiction / powers
The law establishing the NHRI must clearly define the NHRI's jurisdiction and provide it with adequate powers to perform its responsibilities. An important issue affecting an NHRI's potential to improve human rights, is what the NHRI is permitted to consider as 'human rights'. A wide or narrow definition of this phrase will have a large influence on the NHRI's work35. Some NHRIs, such as the Sri Lankan body, were established with a narrow 'mandate' in this respect, being directed to enquire into violations of rights under the country's constitution (the rights under the constitution are less than standard international human rights). The Indian NHRI's establishing law, on other hand, made reference to "rights…embodied in the International Covenants [namely; Economic, Social and Cultural Rights and Civil and Political Rights]" which is a better approach36.
Perhaps the central issue to NHRIs, when considering jurisdiction / powers, is the ability to undertake investigations:
"One of the most important functions…[for] a…[NHRI] is the investigation of alleged human rights violations. The existence of a national mechanism with the power to investigate abuses and provide relief to victims can act as a powerful disincentive to violative behaviour. It is also a clear indication of a Government's commitment to human rights and of its genuine willingness to take international and domestic obligations
seriously"37
The UN considers an effective investigation system requires the NHRI to have: adequate legal capacity, organizational competence, a defined and appropriate set of priorities, and the political will to pursue its work38. Typical NHRI powers to enable effective investigations include:
· free access to all documents relevant to the investigation;
· power to compel production of informatrion (either documents or oral evidence);
· freedom to conduct on-site investigations and inspections where necessary;
· power to force parties to attend NHRI hearings;
· power to hear every individual who the NHRI considers has knowledge concerning the alleged violation or may assist the NHRI's investigation;
· power to publish findings; and
· capacity to commence investigations of its own initiative without first requiring a complaint to be lodged.
One of the factors assisting an NHRI's investigative role, as well as other work it does in promoting human rights, is the accessibility of the NHRI. An NHRI must be accessible to the public in its location, organization and procedures. This may require action in publicising the NHRI or establishing offices in various parts of the country.
Just as the ability to conduct investigations is a central tool in NHRI powers, the limitation of investigation powers can be a significant restriction on an NHRI. Just one example of such a restriction can be taken from India: there have been calls for many years for the Indian NHRI to be granted the power to investigate military abuses39, an activity from which it is currently prohibited by law.
3.3 Promotion of human rights
Enjoyment of all human rights is not achieved through protection alone. As has been noted: "not all situations of human rights abuse can be traced directly back to legislative inadequacies or unfair administrative practices. Human rights violations also occur in the private sphere: in the workplace, in the local community, and in the family"40. Improving human rights often requires promotion and education. NHRIs, like other societal institutions (including schools, NGOs and universities), have an important role in promoting human rights41. An NHRI's promotion of human rights can be done in many ways, including:
· collecting, producing and disseminating information materials;
· organising promotion activities and encouraging community initiatives;
· working with media;
· ensuring the NHRI and its work are visible;
· professional training (eg. training of police, military, public officials, media, lawyers, teachers, NGO and community organizations); and
· seminars or education programs.
One factor that can assist in promoting human rights is the wide-scale, or systemic, inquiries that some NHRIs undertake. Some NHRIs in the Asia-Pacific, in response to a large number of similar violations in their country, hold a general (often lengthy and public) inquiry into the overall causes of these violations. Reports in situations like this will often identify laws and government policies or actions that contributed to the many violations. The NHRI and other bodies can then use the report to advocate for change and promotion of human rights. Matters that have been considered in wider enquiries by NHRIs in this region include: human rights of people with mental illness, 42 children and the legal process 43, and indigenous population control44. Another example of human rights promotion (although it also has a 'protective' aspect as well) is work undertaken by the New Zealand NHRI on women's rights in the region45.
The situation of economic, social and cultural rights should also be noted here. Though all human rights are seen as interdependent and indivisible, considerably less attention has historically been given to economic, social and cultural rights (as opposed to civil and political rights). Often there are fewer avenues for improving these rights46 and it is sometimes more difficult to identify specific breaches of economic, social and cultural rights. Many people consider promotion, education and awareness as the best way to improve economic, social and cultural rights. NHRIs can play a key role and the importance of public enquiries revealing wide-scale or systemic abuse has been particularly noted in the ability of NHRIs to improve economic, social and cultural rights47.
3.4 Advice / assistance to government
Most NHRIs are able to provide advice or recommendations on human rights matters to the three 'arms' of government: executive, parliament, and even the courts (some NHRIs can intervene in legal proceedings to assist the judges in human rights matters). The scope for such 'advice' depends on the NHRI's powers in the law that created the NHRI. Some NHRIs can only advise after first being requested by a government official, whereas others are able to provide recommendations even where there was no initial request.
NHRIs frequently provide advice to parliament and government departments on proposed legislation (eg. reviewing or drafting) or on government policy or action. Governments and parliaments often require consistent lobbying to advance human rights. An NHRI can be a key player in persuading a government to act to improve particular human rights.
NHRIs usually advise governments on how to implement international human rights standards. This is particularly relevant where a government may have undertaken international obligations (eg. ratified a treaty) and those obligations are not being realised in the country. Also, in relation to the international context, NHRIs often have input into their country's reporting required under international human rights treaties48.
3.5 NHRI relations with government
It is important to understand the relationship between an NHRI and its country's government. Too often, this relationship has been misunderstood, or ignored, by both governments and NGOs.
Firstly, it follows that because an NHRI's role is to protect and promote human rights, when government actions threaten human rights, the NHRI must oppose these actions. The Asia-Pacific has many examples of NHRIs pressuring government to improve human rights. In Sri Lanka, the NHRI publicised, nationally and internationally, the discovery and proposed investigation of mass graves in Jaffna when the Sri Lankan government remained quiet, and the NHRI successfully opposed government moves to reduce the NHRI's regional offices49.
The Australian NHRI investigated and criticised historical government genocidal action aimed at eliminating indigenous people50 and recently recommended the government not adopt proposed legislation that was racially discriminatory51. In Indonesia, the country's NHRI recently established an investigatory team to study the reported violations in East Timor: the report implicated many officials, including six generals, as involved in the violations52. Some NHRIs, such as the Indian body, also include recommendations for government in their annual report. The annual reports of Indian NHRI in the mid 1990's contained considerable information on violence in police custody and detailed recommendations for government action to improve the situation53. The Fijian NHRI, though less than a year old, has already acted to protect human rights, in recommending the government not proceed with amendments to the country's constitution54.
Governments, unfortunately, sometimes ignore the advice of their country's NHRI. A Commissioner from the Australian NHRI provided a thoughtful analysis of the relation between NHRI and government:
"National human rights institutions that comply with the Paris Principles are important resources to help States to...respect and protect human rights. States are free to ignore the advice of national institutions but they do so at their own cost and to their detriment -and, more importantly, at the cost of violating the human rights of their own
people"55.
It must be recognised that an NHRI is not able to act in the manner of many NGOs. An NHRI cannot withdraw from contact with the government. It cannot focus its activities on just one area (eg. criticizing government excesses) and ignore other parts of its mandate (eg. human rights promotion) that may require extensive cooperation with the government and its agencies. It has very little opportunity for international lobbying or assistance with its work. Importantly, it must operate within the country's laws even where they are against human rights (it can, and must, take action to change the laws, but it cannot break those laws).
Unrealistic expectations of an NHRI, by civil society, NGOs or others, can create problems for the NHRI. As noted at the outset of this article, an NHRI is not a substitute parliament or judiciary: an NHRI should not be expected to meet the role to be fulfilled by those institutions. Some parties misunderstand the important factor that an NHRI is separate from the government. An NHRI must be established by law and so there will need to be government involvement in its establishment. An NHRI, in its activities, will often have to work with government officials and organisations. However, it is over-simplifying the matter to identify the NHRI as essentially just another government body. The independence must be recognised and respected by all players: the government, the public, NGOs and, importantly, by the NHRI itself. Perhaps one reason for some confusion over Mr. Sidoti's visit is because the visit may be seen as carrying out tasks for the executive government 56.
Another dimension of the NHRI - government relationship that must be noted is that it is dynamic. Changes in the government's composition (either through elections or other changes within the government) or to the NHRI's activities may affect the government-NHRI relationship. Where the executive government controls (either directly or indirectly through the executive's control of parliament) matters such as the NHRI's finances and staffing, there is even more scope for disagreement. The Australian government substantially reduced the NHRI's budget in one year, when no similar cut was made to defence and some other areas of State spending57. Another example is the Indonesian NHRI, which in its early years was cautious in its public statements on human rights matters, especially those involving the military, but now projects a more forthright approach after the recent political changes in the country58.
4 Relevant factors in Burma
There is considerable scepticism as to how an NHRI could operate in Burma. As Mr Sidoti observed, "[T]here would be particular difficulties in establishing a fully independent institution in a political system such as that in Burma"59. These doubts are easy to understand: the system under which the military regime has governed Burma would not accommodate an independent NHRI.
It must always be recalled that an NHRI does not fulfil the role of parliament or of the courts. Although Burma currently has neither a democratically elected parliament60 nor an independent judiciary61, any future NHRI cannot provide these.
Burma's current laws also conflict with what an NHRI would do in the country. Public discussion of human rights matters, which is one of the central activities of any NHRI, is restricted. After the coup in 1988, the military regime prepared a "list of topics that were 'off-limits' for discussion: these included: democracy; human rights; politics; the events of 1988; senior government officials…; criticism of the [military regime] or military personnel"62. The regime has many 'national security' and censorship laws through which it restricts freedom of expression63. It is clear there is much law reform required before an NHRI could effectively operate in Burma. If an NHRI endeavoured to commence work now, it is likely the first document the NHRI produced would breach various laws. And, if it didn't breach any of the current laws, serious doubts about the NHRI's work would be raised. One commentator has warned of the danger of establishing an NHRI now with the expectation the body will strengthen over time because the institution may simply be yet another body pervaded by military influence when democracy and rule-of-law finally come to Burma64.
However, there is little point in attempting to correct the above problems, and little chance to do so, until the regime either changes its policies and actions, or is no longer in power. The regime repeatedly denies there are human rights problems in the country. The regime refuses to allow UN officials into the country to assess the situation65 and attacks or avoids human rights issues raised by anyone about Burma. From past experience, the regime's approach at intergovernmental meetings is to:
· explain to UN meetings that Burma is a "country experiencing peace and tranquillity" 66;
· state that the Special Rapporteur's report is comprised of "baseless allegations made by a few dissidents" and "read[s] like a propaganda document for the…handful of… dissidents"67; and
· endeavour to convince the UN that the regime "upheld the principles embodied in the Charter of the United Nations and the Universal Declaration of Human Rights and abided by them scrupulously"68.
In light of the military regime's response to human rights problems raised internationally, it is difficult to see it adopting a different attitude to an NHRI in Burma. It should go without saying that the human rights problems in Burma are not "baseless allegations made by a few dissidents". The reports of violations have been consistently acknowledged and raised by:
· UN organs (including the General Assembly and CHR);
· UN officials (including the Secretary General, through his envoy; the High Commissioner for Human Rights and Special Rapporteurs);
· governments and inter-governmental groups (including the European Union and Burma's 'partners' in the Association of South East Asian Nations or 'ASEAN');
· intergovernmental bodies such as the International Labour Organisation69; and
· credible NGOs.
Any proper NHRI established in Burma will have to investigate many of these violations and is likely to make the same calls for the regime's accountability as are now made by virtually every other human rights body in the world.
The APF assists in establishing and strengthening NHRIs in the region. However, one commentator has queried whether the APF's methods used in "emerging democracies", like Indonesia, will bring similar results when applied to a repressive, and seemingly ongoing, regime that exists in Burma70.
There are some points to be recognised if the regime is considering establishing an NHRI. The military regime, and groups calling for change in Burma, may wish to consider the following five matters.
4.1 Other countries' experiences
Lessons can be drawn from other countries that have established an NHRI. In one country, the government's moves to create an NHRI were viewed with suspicion by some NGOs and human rights activists. They considered the NHRI would be simply a government stunt. The result was that some people who could have greatly assisted the NHRI's development and work chose not to be involved. The NHRI, now operating for some years, could have benefited from their greater involvement from the beginning in improving human rights. This demonstrates the risk in remaining aloof from the establishment of an NHRI because it mightn't be perfect.
The situation in Indonesia is also of some relevance. Some considered the Indonesian NHRI had factors restricting its work before the recent political changes. However, the fact the NHRI was well established before the changes enabled its experience to be used in those changes and in work immediately after those changes. The current Indonesian Attorney-General was previously a Commissioner of the Indonesian NHRI.
4.2 Role of Paris Principles
Some commentators have perhaps been too willing to declare that any future NHRI in Burma will not work, without fully considering the options. A common approach seems to be to identify an NHRI with the government of the country. One academic writes critically of the notion of establishing an NHRI, suggesting many other human rights improvements must be completed before considering an NHRI71. A different approach to a potential Burmese NHRI is taken by some commentators, in encouraging the work toward an NHRI, while recognizing the difficulties72.
As explained above, the military regime has accepted the Paris Principles, from its many years involvement in international meetings dealing with these international standards for NHRIs. The APF has consistently stated it will not admit an institution unless it complies with the Paris Principles73, and Mr Sidoti's work is part of the APF's ongoing contact with many governments and organisations in relation to establishing an NHRI. The international body of NHRIs also requires compliance with the Paris Principles, and is working toward checking to make sure NHRIs meet these standards. It seems unlikely either of these groups (the APF and the international body of NHRIs) will be involved in establishing an institution that does not meet the Paris Principles. As noted above, the UN General Assembly also encourages NHRI development in accordance with the Paris Principles.
NGOs and other parties advocating for change in Burma should use the Paris Principles in discussing a possible future NHRI. Rather than simply declaring an NHRI is impossible, reference should be made to the Paris Principles to identify what an NHRI would entail. For example, the Paris Principles require independence in an NHRI's composition. Half the people in Burma are women, and over 30% of the country’s population is from non-Burman ethnic groups74, therefore diversity in composition means women and members from ethnic groups must be involved at all levels of any future NHRI. Another method of using the Paris Principles would be to refer to the requirements of independence in appointment, and recommend specific Burmese human rights experts (eg. Burmese academics currently outside Burma due to political repression) for any future NHRI commissioners.
4.3 Constitutional / legal foundation
Burma is in an uncommon situation for most countries, of re-writing the constitution. This presents an opportunity to give constitutional support and protection to any future NHRI. Only two NHRIs in the Asian region are established under their country's constitution75. Thailand also has a short reference to an NHRI in its constitution, and relevant legislation was passed in 1999, but the NHRI's details will be established under that legislation, not under the constitution. In Malaysia, there are a number of commissions with constitutional bases.
The draft constitution for Burma currently emerging through the military regime's process has no provision for an NHRI. The draft constitution prepared by the National Council of the Union of Burma (a grouping of Burmese democratic, ethnic and opposition groups) includes provision for a Human Rights Commission76, but is arguably too short. It may be too hasty to include in the constitution being currently prepared full provisions for an NHRI. However, some basic measures, such as when an NHRI should be established, and some guarantees for its key features and independence, would be a good start. This article does not intend to address the detail of NHRI provisions needed in any new constitution for Burma, which is discussed elsewhere77. This article simply notes the issue and opportunity of giving a constitutional basis for any future Burmese NHRI.
4.4 Non-government involvement
As noted earlier, it is important that there is public involvement in NHRIs, both in their creation and operation. The public involvement can be through individuals, community groups, universities, NGOs, and many other groups of people outside government. It is significant that a declaration adopted by the most recent international meeting of NHRIs emphasised, in its first paragraph: "the importance of…[NHRI] collaboration with non-governmental organisations and defenders of human rights, as well as with the whole of civil society"78. NGO involvement in NHRIs has also been encouraged by the UN General Assembly79.
The regime's actions have weakened civil society in Burma over many years. However, working toward any future NHRI should not continue that situation. There should be ample opportunity made for meaningful public input into the establishment (and eventual operation) of any future NHRI.
4.5 The next steps
The military regime's history of not fulfilling promises80 suggests a cautious approach in any dialogue with the regime. Any contact made should indicate, diplomatically but clearly, what an NHRI would entail, and the changes in the political/legal climate inside Burma that would have to occur to accommodate an NHRI:
"A road map should be made of the [proposed NHRI]'s creation and practical work in conformity with the Paris Principles. It should be clear at the start what this road map entails, and allow for the possibility of disengagement if the signs on the road map are not
fulfilled..."81
Before the process of any discussion of an NHRI proceeds much further, it would be reasonable for all interested parties (including the regime) to outline the basic role, composition and duties of the body being contemplated. This will assist in identifying areas for further discussion.
5 Conclusions
This paper has described some of the main features of an NHRI, providing a basic picture of what such a body entails. Essentially, an NHRI is a body set up through government action and largely funded by government. However, it lives independently and often criticises government action.
Would the military regime be able to create such an institution? Many would argue, strongly, that the regime would not be able to do so. There are many human rights violations in Burma. The majority of these require action from the regime to remedy. Pressure must remain consistently on the military regime to correct all the problems it has created (including its illegitimate retention of governmental power) or at least let others attempt to do so. However, discussion of a potential NHRI must not be confused with governmental problems.
If the military regime wishes to proceed toward establishing an NHRI, then it should be done properly, with the resultant body complying with international standards that the regime has already accepted. There is a unique opportunity at the moment to give constitutional protection to any future NHRI by including appropriate provisions in the constitution. If the regime proceeds in attempting to create an NHRI but ignores this opportunity, its motives must be questioned.
The Asia-Pacific was the early front-runner with NHRIs, establishing the second, fourth and fifth in the world, and also having the first NHRI to receive constitutional status and protection. There is a high level of cooperation between NHRIs in the Asia-Pacific, as compared to some other regions. The regime should ensure, on behalf of its ASEAN and other regional partners, that this commendable progress isn't degraded by establishing an ineffectual, political body.
Obviously, there will be problems. There are other NHRIs that were perceived as being established under a government so disregarding of human rights that nothing was expected of them. However, the fears seem to have been unfounded and this suggests that even where a government may operate a restrictive regime, an NHRI can assist in making some human rights improvements. There is a wealth of experience in the region, and in the UN, on NHRIs. The regime should welcome the opportunity for these parties, and NGOs and the Burmese people, to assist in establishing an effective NHRI for Burma.
As for Burma's civilians and opposition / democracy groups, if the regime proceeds toward an NHRI without any accompanying changes to the situation in Burma, their response would be justifiably sceptical. Every opportunity should be taken to prevent the regime from following such a path. However, if the move toward an NHRI is made with necessary accompaniments (eg. improvements in judicial independence, convening of parliament, and legislative reform) and particularly if it is based in the new constitution, it would certainly be worth civil society's involvement, even if that is distasteful in requiring co-operation with the regime.
If the NHRI is set up now with no other changes, then its office may as well be located about 15 kilometres north of Rangoon, on the Rangoon-Prome Road, Insein District. This is Insein prison, which is home to many other people who endeavoured to improve human rights in Burma.
Post script
After this article was written, a report was released assessing the effectiveness of NHRIs in improving human rights 82. The study leading to the report visted Ghana, Indonesia, Mexico, South Africa and Zimbabwe, to assess NHRI effectiveness in those countries. The report acknowledged the danger in making generalisations becaue of the great diversity of NHRIs throughout the world, however, some of the report's findings are relevant in considering any future NHRI for Burma, including:
· an NHRI's legitimacy is greatly affected by the constitutional or legal basis of its establishment and the quality of the staff appointed to the NHRI.
· a clear definition of the NHRI's role and functions is very important; and
· to properly conduct its work, an NHRI needs effective links with civil society.
Notes
1. Legal Researcher, Burma Lawyers' Council; LLB, Barrister and Solicitor of the Supreme Court of Western Australia and Practitioner of the Federal Courts of Australia
2. Australia's Foreign Affairs Minister stated, during a press conference on 26 July 1998, "Myanmar/Burma should take a leaf out of the book of Soeharto's Indonesia...to establish an independent national human rights commission. ...I made the point to [the military regime's Foreign Minister] Ohn Gyaw that I thought such an organisation in Burma would be a very useful step forward and I'm glad to be able to say he did not respond in a negative way...", see Australian Department of Foreign Affairs and Trade < www.dfat.gov.au/media/transcripts/980726_ad_manila.html >; The military regime's Foreign Minister said, "We will set up (a commission) when the time is ripe… It would be an independent body like any other counter [sic: country] has", article 'Surin Confident on Rights Progress',
The Nation newspaper (29 July 1999), as reported by BurmaNet news < www.burmanet.org >; and "[P]rior to Mr Sidoti's visit, two middle-ranking Burmese officials visited Australia in mid-July for an introduction to the Australian approach to national human rights institutions", article 'A start to help Burmese on road to human rights',
International Herald Tribune newspaper (23 August 1999), as reported by BurmaNet news < www.burmanet.org >
3. the main political 'opposition' party in Burma, which obtained over 80% of the seats in the last elections
4. "Those in favour of the attempt to establish a human rights commission point out that a similar commission set up in Indonesia in 1993, when the Suharto regime was still solidly entrenched, had made a real difference to that country's attitudes towards human-rights abuses. They argue that a commission, once it exists, gains legitimacy and effectiveness with the passage of time", article 'Sidoti's Burma visit too risky',
Canberra Times newspaper (6 August 1999) Australia (as reported by BurmaNet news < www.burmanet.org >); and Australia's Foreign Minister, in Thailand in November 1999, observed of Mr Sidoti's visit: "It wasn't misdirected. It was the right thing to do. It's an ongoing process that we are discussing with the Burmese. We want to see an improvement in human rights in Burma. We are not prepared to stand back and do nothing about it"
Rangoon Post (18 November 1999), as reported by BurmaNet news < www.burmanet.org >.
5. "…[Australian Human Rights Commissioner Chris] Sidoti did not say how he or they [the Burmese regime] interpreted the word independent… Sidoti must know that in Burma today, there is no authority other than the dictatorship… In this environment, which is well-known to the world through…[UN and NGO] reports…it is hard to understand what Sidoti learned from his short visit to cause him to write [positively] in his report… Does Sidoti really believe that there is a political foundation in Burma upon which an independent human rights commission can be erected?", J Silverstein article 'Don't expect junta to respect human rights',
The Nation newspaper (19 August 1999), Thailand
6. "London based Burma campaign director, Yvette Mahon, said the main risk [in establishing an NHRI] was the possibility of the Burmese regime ‘setting up the Commission to stop the critics as another propaganda tool… I would be extremely surprised if any commission would be independent and have a free rein’ ", article 'Cautious response to Sidoti's human rights proposals',
Australian Associated Press media report (5 August 1999), as reported by BurmaNet news < www.burmanet.org >
7. UN Centre for Human Rights National Human Rights Institutions: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights
(1995) Geneva, para 19. See also the most recent UN General Assembly resolution on NHRIs, which "encourages [NHRIs] to continue to play an active role in preventing and combating all violations of human rights as enumerated in…relevant international instruments" (A/RES/54/176, para 7).
8. UN Handbook on NHRIs (see n7 above), para 219
9. ECOSOC resolution 2/9 (21 June 1946)
10. ECOSOC resolution 772B (XXX) (25 July 1960)
11. General Assembly resolution A/RES/48/134 (20 December 1993), the full text of the Paris Principles is annexed to the resolution
12. "The World Conference on Human Rights encourages the establishment and strengthening of national institutions, having regard to the [Paris Principles]" VDPA, Part I, para 36
13. "The General Assembly…reaffirms the importance of the development of effective, independent and pluralistic national
institutions…in keeping with the [Paris] principles" (resolution A/RES/54/176, para 2, emphasis added). Recent support for establishing NHRIs can also be drawn from paragraph two of the
Rabat Declaration (outcome of the Fifth International Workshop for National Institutions, Rabat, Morocco) 15-18 April 2000.
14. UN Handbook on NHRIs (see n7 above), introduction, page v
15. General Assembly resolution A/RES/48/121 (20 December 1993)
16. The information about the NHRIs in the Asia-Pacific, unless otherwise noted, is taken from materials produced by the secretariat of the Asia Pacific Forum of NHRIs; including L Smith, "Practices of National Institutions for receiving, investigating and resolving complaints" (1998), background paper at 3rd meeting of the Asia Pacific Forum of NHRIs, September 1998; and web-site of the Asia Pacific Forum of NHRIs <www.apf.hreoc.gov.au>.
17. Danish Centre for Human Rights Human Rights and Development Yearbook - 1998 (Copenhagen), chapter 'National human rights institutions - standard setting and achievements', section D implementation of Paris Principles
18. Decree of the President of the Republic of Indonesia No 50/1993 (7 June 1993)
19. 14-25 June 1993, Vienna, Austria
20. Although it should be noted the Indonesian NHRI's first annual report records its origins as being "established by the President...following a recommendation made at the...1991 Conference on Human Rights in Jakarta, jointly initiated by the Indonesian Department of Foreign Affairs...and the United Nations", see Komnas Ham Annual Report 1994, chapter I, < www.komnas.go.id/english/report/1994/ar_txtc01.html >.
21. L Smith's background paper (see n16 above), para 53
22. see 'The Draft Indonesian Law on Human Rights and the National Human Rights Commission' (1999) by Institute for Community Study and Advocacy (ELSAM) in Indonesia
23. Human Rights Commission Act 1999 (Fiji), section 6(1)(a)
24. Y Lertcharoenchok "FROM THE EDGE: Malaysia human rights panel fits Asean trend" newspaper article,
The Nation newspaper (Thailand), 8 April 2000
25. "In Malaysia, the announcement of the human rights commission was met with both euphoria and scepticism among human rights activists and opposition politicians", Y Lertcharoenchok article (n24 above).
26. see AH Manjurul Kabir, 'Longing for a Recommendatory Institution' (1999), Bangladesh
27. see 'What's the Problem in Controversy of National Human Rights Commission in Korea' (1999) issued by NGOs Coalition for independent NHRC (Korea)
28. "In Thailand, the birth of the National Human Rights Commission is technically stalled due to the non-formation of the Senate, which is to select the 11 panel members", Y Lertcharoenchok article (n24 above). See also 'Recommendation from NGOs and Civil Society in Thailand on the Promotion and Protection of the Human Rights Act' (December 1998) Coordinating Committee of Human Rights Organisations of Thailand
29. The APF specifies: "institutions can apply for membership of the Forum subject to meeting or committing themselves to meet the fundamental criteria...[of] independence guaranteed by statute or constitution; autonomy from government; pluralism, including in membership; a broad mandate based on universal human rights standards; adequate powers of investigation; [and] sufficient resources".
30. Rabat Declaration (see n13 above), para 2
31. Danish yearbook (see n17 above), section 3(b) 'pluralistic reflection of society'
32. Danish yearbook (see n17 above), section 3(b) 'pluralistic reflection of society'
33. raising this at the APF's 3rd meeting in September 1998, and the UN CHR in April 1999
34. the APF's 4th meeting in the Philippines in September 1999, stated "The Forum also requested the [APF] Secretariat to prepare, in consultation with non-government organisations and the Office of the High Commissioner for Human Rights, guidelines for the process of establishing national institutions in accordance with the Paris Principles for consideration at the Fifth Annual Meeting of the Forum", Statement of Conclusions, para 12
35. "[I]f the meaning of 'human rights violation' is too broad, a commission's mandate will encompass too many issues to address any of them effectively. [But]…if the meaning of 'human rights violation' is too narrow, a commission will be barred from acting on the issues of greatest concern", South Asia Human Rights Documentation Centre,
National Human Rights Institutions in the Asia Pacific Region (March 1998) India, page 10
36. although the Indian NHRI is then handicapped by the phrase stating "rights…embodied in the International Covenants and enforceable by the courts in India" (emphasis added), because many rights contained in the International Covenants are not enforceable in Indian Courts, see
NHRIs in the Asia-Pacific (see n35 above), pages 10-12
37. UN Handbook on NHRIs (see n7 above), around para 216
38. UN Handbook on NHRIs (see n7 above), para 217
39. see eg., Centre for the Independence of Judges and Lawyers Attacks on Justice: the Harassment and Persecution of Judges and Lawyers (1999) Switzerland, pages 149-150
40. UN Handbook on NHRIs (see n7 above), para 203
41. The UN General Assembly recently "reaffirm[ed] the role of national institutions...as appropriate agencies...for the dissemination of human rights materials and other public activities, including those of the UN" (resolution A/RES/54/176, 17 December 1999, para 7)
42. Australian NHRI, 1996
43. Australian NHRI, 1997
44. Australian NHRI inquiry, see n50 below
45. "The National Human Rights Commission of New Zealand recently distributed a questionnaire to all established national institutions requesting information concerning their mandates, functions, methods of work, activism and programmes relating to the promotion and protection of women's rights", report of the UN Secretary General to 2000 CHR on National Institutions and Regional Arrangements, UN document E/CN.4/2000/103, para 14-16
46. this article does not address whether this situation is necessarily so, or whether the situation is due to self-fulfilling misunderstandings
47. see APF's theme paper 'National Human Rights Institutions and Economic and Social Rights' (produced for the 4th APF meeting, Philippines, September 1999), section 'The Role of National Human Rights Institutions', para 6
48. most of the international human rights covenants require States that have ratified the covenant to submit regular reports to a central committee, explaining how the State is implementing the provisions in the covenant
49. author's communication with a Commissioner of Sri Lankan Human Rights Commission
50. The Australian NHRI explained the findings of its National Inquiry into the Separation of Indigenous Children from their Families: "The Inquiry's examination of historical documents found that the clear intent of removal policies was to absorb, merge or assimilate children so that Aboriginal [indigenous] people, as a distinct racial group, would disappear", see < www.hreoc.gov.au/social_justice/stolen_children/j8_1_2.html#ques7 >
51. statement by Australian Human Rights Commissioner to the 1999 UN CHR, 'Effective functioning of human rights mechanisms: National Institutions for the promotion and protection of human rights', para's 13 to 15
52. article 'Justice for the Victims in East Timor', suratkabar (indonesian daily news online) (1 February 2000) < http://suratkabar.com/arsip/2//1/10222.shtml >; and S Tillou article 'The right kind of justice for E Timor',
Straits Times interactive
53. see the Indian NHRI's 'Highlights of the Annual Report of 1996-97', < http://nhrc.nic.in/vsnhrc/Report9697.htm >
54. article 'Gay marriage row becomes power struggle', The Weekend Australian
newspaper (26 February 2000), page 15
55. statement to 1999 UN CHR (see n51 above), para 16
56. NHRIs, including the Australian NHRI, strive to remain independent of executive government, however various descriptions of Mr Sidoti's visit, by Australia's Foreign Minister do not assist a general perception of independence: "I suggested to the then Burma's foreign minister, U Ohn Gyaw, that Rangoon consider setting up an independent [NHRI]... I pursued my proposal with the present foreign minister... It was in this context that...Sidoti visited Burma"; "Work toward the establishment of national human rights organizations
by governments...can make a positive impact over the longer term"; and "[H]uman rights are a matter of international concern, and as their protection is the responsibility of the national government,
we have to deal with that government"; all quotes from newspaper article 'A start to help Burmese on road to human rights', see n2 above, (emphasis added)
57. The Australian NHRI's budget has been cut repeatedly in recent years, generally in small amounts but with a massive cut announced in May 1997. The cumulative effect of the cuts is a reduction of around 40%, forcing the NHRI to retrench about 35% of its staff at the end of 1997. The NHRI's President, in the 1997-98 annual report referred to "significant funding cuts to the Commission, which necessitated the loss of 60 staff members over the last year", page 9.
58. One example of this change can be seen in comparing the Indonesian NHRI's early work with more recent material. The Indonesian NHRI (Komnas Ham) explained, in its first annual report, that its involvement in international human rights meetings "emphasized the genuine willingness
of the government of Indonesia to reduce potential human rights violations", see 1994 Annual Report (n20 above) chapter VII (emphasis added). In mid-1998, Komnas Ham released a statement on enforced disappearances, critical of the military and making various recommendations for changes in military practices; see "Statement of National Commission on Human Rights regarding enforced disappearance of persons" <www.komnas.go.id/english/cases/cs_text01.html >. However, even its 1998 statement (above), with its cautious wording like "There are strong indications within the society that the possibility is not foreclosed that elements of security forces were involved in the enforced disappearance of persons", is mild compared to Komnas Ham's recent work about East Timor (see text relating to n52).
59. undated document entitled 'VISIT TO MYANMAR (BURMA) BY THE AUSTRALIAN HUMAN RIGHTS COMMISSIONER', by Chris Sidoti, page 1
60. The UN Special Rapporteur on Myanmar (Burma) reported to the 1999 UN CHR, noting attempts in Burma to convene parliament in accordance with the results of the 1990 general election, and the authorities harassment and arrest of members of parliament and others involved (see UN document E/CN.4/1999/35).
61. A report by the international NGO, Article 19 (K Venkateswaran Burma: beyond the law,
1996) notes the regime's forced closure of all courts in the country for nine months in 1988 to 1989; numerous dismissals of judges for failing to comply with the regime's demands to imprison political dissidents to prison terms longer than those permissible in law; and the repression of lawyers resulting in the loss of effective legal representation for the people (pages 38-40).
62. National Coalition Government of the Union of Burma Human Rights Yearbook 1998-99: Burma
(July 1999) Thailand, page 195
63. For example, a law passed in the 1960's (Printers and Publishers Registration Law (1962) prevents the printing or publishing of materials which would be detrimental to the Burmese socialist system or the ideology of the state, or which might be harmful to national security and unity, or which are "unsuitable because of the time or circumstances of writing" even if factually correct. The regime, rather than recognizing this as an outdated and excessive law, saw it could be used to further control citizens and in 1989 increased penalties for breaching the law to up to seven years' jail (see Burma yearbook, n62 above, page 197). Also, more recently, laws created by the regime in 1996 forbid acts which "belittle the tasks being implemented by the National Conventions" (see Article 19's report, n61 above, page 40-41) and forbids "any person in Burma [from] discuss[ing] alternative constitutional principles", Burma Lawyers' Council
Burma: the military and its constitution (1999) Thailand, page 12.
64. "Would establishing an [NHRI] in the hope that it would 'grow teeth' be a good foundation for the operation of an institution in the long term [?] ... The legacy of an NHRI in Burma before democratic governance takes root could be difficult to dismantle and replace with an effective institution", V Coakley 'Discussion Paper - the Australian government initiatives to create a National Human Rights Commission in Burma', October 1999, page 18
65. The current UN Special Rapporteur on Myanmar (Burma), since his appointment in 1996, has not been permitted to enter Burma despite repeated requests by him, the CHR and the UN General Assembly (see Special Rapporteur's report to 2000 CHR 'Situation of human rights in Myanmar', UN document E/CN.4/2000/38, paras 3 to 4).
66. note verbale by military regime to UN CHR, dated 15 March 1999 (UN document E/CN.4/1999/129), page 13
67. UN's summary record of delegation from regime's response to the Special Rapporteur's report to the 1999 CHR, UN document E/CN.4/199/SR.13, para's 59 and 62 68. reportedly from summary of 45th session of the UN General Assembly, UN document A/C.3/45/SR.53,3
69. "The [International Labour Organisation, or] ILO has taken the harshest measure it can against a member state. Following the ILO report in 1998 which found the use of forced labour in Burma to be 'widespread and systematic', the 1999...annual policy meeting of the ILO universally condemned Burma and excluded it...from the ILO...[because] the military regime had failed to respond satisfactorily to calls for improvements in the areas of forced labour and freedoms of association in the year following the ILO...findings and recommendations", paper by V Coakley, see n64 above, page 11
70. "[The APF's] technical projects could be of major benefit and use for countries that are emerging or re-emerging democracies. What about those that do not fall into these categories? Does the Forum have a policy or strategies to deal with countries that are...still under authoritarian rule, that have expressed interest in establishing a...[NHRI]?", paper by V Coakley, see n64 above, page 7
71. "[A] human rights commission, to function at all, cannot be erected and work until there is an environment in which it can take root and function. Such an environment does not exist in Burma today, and so long as the military continues to run the country, it never will…exist. …The people of Burma deserve more than they have got for the past three and a half decades. Help them Sidoti, to recover power. They have a rights to govern themselves and lead their nation into the new century", J Silverstein (see n5 above)
72. "Two essential preconditions that should be met before the establishment of a human rights commission or freedom of speech and freedom of the press. Without these freedoms, the commission cannot hope to possess the power to enforce respect for human rights. Unless freedom of expression is guaranteed, the human rights commission will not be able to accurately assess the situation, and could ever be used to cover up human rights abuses", Thar Nyunt Oo article 'Right Person, Right Place' in
The Irrawaddy (1999) Vol 7 No 7; and "…[T]he development of a genuinely independent body, if indeed that is possible, would take a considerable length of time. It would…have to be established according to internationally accepted standards. To be blunt, if the Burmese were to construct a bricks and mortar institution next week, it would not be credible", A Downer (Australia's Foreign Minister) newspaper article 'A start to help Burmese on road to human rights' see n2 above
73. see text relating to n27 above
74. Statistics taken from Open Society Institute Burma: Country in Crisis (1998) United States of America, however many commentators consider these figures under-represent non-Burman ethnic groups because of the difficult situation of many ethnic people (refugees etc) causing them to be 'lost' in census figures. Some commentators estimate the non-Burman ethnic groups are more than 50% of the population.
75. the Philippines, where provision for the NHRI was included in the constitutional re-writing following the end of the Marcos dictatorship; and Fiji
76. articles 31 and 129 of the draft constitution, see National Council of the Union of Burma
Commentary on the (Future) Constitution of the Federal Union of Burma (1998) Thailand, page 18; see also J Sarkin "Burma's future constitution: Comparing and Contrasting Democracy and Human Rights Provisions in the Two Draft Burmese Constitutions from an International Perspective" in Burma Lawyers' Council
Legal Issues on Burma Journal (1999), Vol 4, page 56 at 66
77. see Sarkin J, (n76 above) at page 66
78. Rabat Declaration (see n13 above), para 1
79. "The General Assembly...recognizes the important and constructive role that nongovernment organizations may play, in cooperation with [NHRIs], for the better promotion and protection of human rights" (resolution A/RES/54/176, para 14)
80. "[T]he regime is good at making promises and showing good intentions at critical junctures. The regime promised in 1998 when they took power to transfer power to the elected body following the 1990 election [it did not do so]. They established organisations such as the Maternal and Child Welfare Association (headed by SPDC Secretary-1 Khin Nyunt's wife)...when they faced criticism over the lack of civil society and free institutions", paper by V Coakley, see n64 above, page 19. After the 1990 elections, which the military refused to observe, the regime stated "...the representatives elected by the people are responsible for drafting a constitution for the future democratic state..." and did not permit parliament to sit. Two years later, the regime first began the 'constitution-drafting' process, in which it selected nearly all of the participants involved (only 99 of the 703 members in the constitution-drafting body were elected by Burma's citizens). The regime has also set guidelines for the constitution, directing that the constitution must include "participation of the military in the leading role of national politics"; see
Burma: the military and its constitution (n63 above), quotes from pages 7 and 10, respectively. Even on a matter as simple as a visit by a UN official, the military regime contradicts itself without explanation. The UN Special Rapporteur has been consistently denied access by the regime. The regime discussed this with the UN Secretary General in 1999, and the Secretary General's informed the UN General Assembly "[T]he [regime's] Foreign Minister stated for the first time that the Government would give 'serious consideration' to a visit by a Special Rapporteur...[and]...I hope the Foreign Minister's indication that 'serious consideration' would be given to a visit...will translate into the setting of a date very soon, in time, I hope, for the submission of a report to the [2000] Commission on Human Rights" (UN document A/54/499, para's 7 and 13). However the Special Rapporteur could only report to the 2000 CHR, held nearly half-a-year later, that "[The military regime's spokesperson] stated that his Government did not rule out a visit... Similar indications had, year after year, been given in the General Assembly and the Commission by the [military regime]. To date no positive steps have been taken to allow such a visit" (UN document E/CN.4/2000/38, para 4).
81. paper by V Coakley, see n64 above, page 19
82. International Council on Human Rights Policy, Performance & legitimacy: national human rights institutions (2000) Switzerland, see <www.international-council.org/publication2.html#102>