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A/51/466: REPORT OF SPECIAL RAPPORT
Subject: A/51/466: REPORT OF SPECIAL RAPPORTEUR FOR HUMAN RIGHTS IN MYANMAR
REPORT OF SPECIAL RAPPORTEUR FOR HUMAN RIGHTS IN MYANMAR
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UNITED
NATIONS
Distr.
GENERAL
A/51/466
8 October 1996
ORIGINAL: ENGLISH
General Assembly
Fifty-first session
Agenda item 110 (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 on the situation of human
rights in Myanmar, prepared by Judge Rajsoomer Lallah, Special
Rapporteur of the Commission on Human Rights, in accordance with
Commission resolution 1996/80 of 23 April 1996.
CONTENTS
Paragraphs Page
I. INTRODUCTION ......................................... 1 - 11 3
II. THE INTERNATIONAL NORMS GOVERNING HUMAN RIGHTS ....... 12 - 15 6
III. BASIC LEGAL FRAMEWORK GOVERNING THE EXERCISE OF
POLITICAL RIGHTS IN MYANMAR .......................... 16 - 34 7
A. The establishment of the State Law and Order
Council and the imposition of martial law ........ 17 - 20 7
B. The general elections of May 1990 ................ 21 - 22 8
C. Declaration No. 1/1990 and the National Convention 23 - 29 9
D. Non-conformity of the legal framework with
international norms .............................. 30 - 33 11
E. Remedial measures for the re-establishment of
constitutionality and the democratic order ....... 34 12
IV. IMPACT OF MYANMAR LAW ON HUMAN RIGHTS ................ 35 - 145 12
A. Extrajudicial, summary or arbitrary executions ... 37 - 42 13
B. Torture and other cruel, inhuman or degrading
treatment ........................................ 43 - 51 14
C. Arbitrary arrest and detention ................... 52 - 61 15
D. Due process and the rule of law .................. 62 - 71 17
E. Prison conditions ................................ 72 - 82 19
F. Freedom of opinion ............................... 83 - 94 22
G. Freedom of assembly and association .............. 95 - 116 24
H. Freedom of movement and forced relocation ........ 117 - 125 28
I. Forced labour .................................... 126 - 145 30
V. CONCLUSIONS AND RECOMMENDATIONS ...................... 146 - 153 34
A. Conclusions ...................................... 146 - 152 34
B. Recommendations .................................. 153 36
Annex. Extracts from the State Law and Order Restoration Council
Declaration No. 1/90 ........................................... 39
I. INTRODUCTION
1. The Special Rapporteur on the situation of human rights in Myanmar
(originally Professor Yozo Yokota) was appointed by the Chairman of
the Commission on Human Rights in accordance with Commission
resolution 1992/58 of 1992. Professor Yozo Yokota submitted his first
report on the situation of human rights in Myanmar to the General
Assembly at its forty-seventh session and to the Commission on Human
Rights at its forty-ninth session. In pursuance of resolutions of the
General Assembly and the Commission on Human Rights, the mandate was
successively extended by the Commission in 1993, 1994 and 1995. On
23 April 1996, the Commission on Human Rights, by its resolution
1996/80, 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
fifty-first session and to the Commission on Human Rights at its
fifty-third session. On 24 July 1996, the Economic and Social
Council, in its decision 1996/285, approved Commission resolution
1996/80.
2. For professional reasons, Professor Yokota resigned as Special
Rapporteur on 12 May 1996. The present Special Rapporteur wishes to
pay tribute to the eminently constructive work performed by his
predecessor in the past years in the discharge of his mandate.
3. Following the resignation of Professor Yokota, Ambassador Saboia,
Chairman of the fifty-second session of the Commission on Human
Rights, decided to appoint Judge Rajsoomer Lallah as the Special
Rapporteur on the situation of human rights in Myanmar for the purpose
of implementing the aforesaid resolutions of the Commission on Human
Rights and the General Assembly.
4. On assuming his mandate, the present Special Rapporteur has tried
to identify the priority concerns of the international community with
regard to the situation of human rights in Myanmar. Such concerns are
referred to in the resolutions which the various competent organs of
the United Nations have adopted over the past five years but more
particularly in General Assembly resolution 50/194 of 22 December 1995
and Commission resolution 1996/80, which were the ones most recently
adopted. These concerns constitute the substantive content of the
Special Rapporteur's mandate. They may be summarized as follows:
(a) The electoral process initiated in Myanmar by the general
elections of 27 May 1990 has yet to reach its conclusion and the
Government still has not implemented its commitments to take all
necessary steps towards the establishment of democracy in the light of
those elections;
(b) Many political leaders, in particular elected
representatives, remain deprived of their liberty;
(c) Violations of human rights remain extremely serious,
including, in particular, the practice of torture, summary and
arbitrary executions, forced labour, including forced portering for
the military, abuse of women, politically motivated arrests and
detention, forced displacement, serious restrictions on the freedoms
of expression and association, and the imposition of oppressive
measures directed, in particular, at ethnic and religious minority
groups;
(d) The continuing fighting with ethnic and other political
groups, despite the conclusion of cease-fire agreements, together with
the continuing violations of human rights, has resulted in flows of
refugees to neighbouring countries.
5. Given the gravity of the concerns highlighted, the mandate remains
a most sensitive and difficult one since it relates to the very nature
of the administration of a State Member of the United Nations and its
adverse impact on the observance and protection of basic human rights
and freedoms. With a view to discharging that mandate in the most
impartial and effective manner, the Special Rapporteur immediately
after his nomination, sought the cooperation of the Government of
Myanmar. Accordingly, on 9 July 1996, the Special Rapporteur wrote a
first letter to the Government of Myanmar through its Permanent
Representative to the United Nations Office at Geneva. In that
letter, he stated, inter alia:
"In accepting to serve as Special Rapporteur, I am fully aware of
the important and demanding responsibilities with which the
Commission has entrusted me. I would like to assure Your
Excellency that I intend to carry out my mandate in the most
impartial and objective manner and that I shall endeavour to base
my reports on all relevant and credible information which may be
submitted to me. In this connection, a primary and most valuable
source of information would undoubtedly be Your Excellency's
Government.
"I would be most grateful if I were to receive the cooperation of
Your Excellency's Government in order to allow me to discharge my
mandate fully and reliably in reporting to the Member States of
the United Nations and to ensure that the General Assembly and the
Commission on Human Rights are presented with an accurate and
comprehensive assessment of the situation of human rights in
Myanmar. In this connection, and in accordance with operative
paragraphs 21 and 23 of Commission resolution 1996/80, I would
wish to visit Myanmar as soon as possible to examine the situation
in situ and to meet with appropriate Governmental representatives
as well as other persons relevant to the fulfilment of my
mandate ..."
6. On 26 July 1996, the Special Rapporteur addressed a second letter
to the Permanent Representative of Myanmar to the United Nations
Office at Geneva, in which he reiterated his request for cooperation
and to visit Myanmar.
"In a letter addressed to Your Excellency on 8 July 1996, I have
requested to undertake a visit to Myanmar to meet with appropriate
governmental representatives as well as other persons relevant to
the fulfilment of my mandate. Accordingly, 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 am reiterating my wish
to visit your country.
"Specifically, and keeping in mind the deadline for the submission
of my report to the General Assembly, I would hope that your
Government would agree to my visit from 20 August through
2 September 1996 so that I may provide the General Assembly with
an accurate and comprehensive assessment of the situation of
economic, social, cultural, civil, and political rights in
Myanmar ..."
7. So far, the Special Rapporteur has received no reply from the
Government of Myanmar. In this connection, the attention of the
Special Rapporteur has been drawn to a letter addressed to the
Chairman of the fifty-second session of the Commission on Human Rights
by the Permanent Representative of Myanmar dated 4 July 1996 (No.
287/3-27/02-21). In that letter, the Permanent Representative
indicated that Myanmar had disassociated itself from the decision of
the Commission on Human Rights at its forty-eighth session to raise
the level of consideration about the situation in Myanmar through the
appointment of a Special Rapporteur and that his Government refused to
accept the appointment of the Special Rapporteur, as such an exercise
was "intrusive and constitutes unwarranted interference in our
internal affairs". The Permanent Representative further stated that
Myanmar continued to maintain this position and that the Chairman's
decision to appoint the present Special Rapporteur on the situation of
human rights in Myanmar was unacceptable, as in the case of the
previous Special Rapporteur, Professor Yozo Yokota.
8. It is appropriate to recall that the Government of Myanmar
nevertheless did allow Professor Yokota to visit Myanmar on several
occasions to enable him to fulfil the mandate conferred upon him by
the Commission on Human Rights. The absence of a response by the
Government of Myanmar to the Special Rapporteur's request for a visit
is, in the circumstances, not understandable. However, the absence of
a response, coupled with the refusal of the Government of Myanmar to
accept the appointment of a Special Rapporteur, call for a few
observations.
9. It should be recalled that a considerable number of resolutions of
the Commission on Human Rights establishing various procedures with
regard to the human rights situation in certain States have not
required the express consent of the States concerned. Those
procedures have been established on the basis of the general and
implicit powers of the Commission, in the light of the principles
enshrined in the Charter of the United Nations governing the promotion
of universal respect for and, observance of, human rights and freedoms
and in the light of the obligations deriving from the pledge given by
States Members to take joint and separate action in cooperation with
the organs of the United Nations to implement those principles. In
this regard, the Special Rapporteur also recalls the practice which
has been developed over the years in the relevant organs of the United
Nations in the achievement of those principles.
10. With regard to the stand of Myanmar relating to intrusiveness and
interference in its internal affairs by the procedure of the
appointment of a Special Rapporteur, it must be observed that this
stand does not conform to the obligations undertaken by Myanmar under
Article 56 of the Charter to cooperate with the United Nations and its
organs and cannot relieve the relevant organs of the United Nations
from the duty of performing their functions. This stand further
cannot frustrate the General Assembly or the Commission on Human
Rights in carrying out their functions in accordance with the
procedures which have been developed over the years.
11. The Special Rapporteur feels bound to record his regret that the
Government of Myanmar would appear to adopt an attitude of
non-cooperation. Clearly, the refusal of the Government to cooperate
has rendered the task of the Special Rapporteur more difficult in
determining the factual situation as it has evolved
since October 1995. More particularly, it seeks to frustrate the
resolution of the Commission in which the Special Rapporteur was
mandated "to establish or continue direct contact with the Government
and the people of Myanmar, including political leaders deprived of
their liberty, their families and their lawyers" (para. 21 of
resolution 1996/80) and to have free access to any person in Myanmar
whom he may deem appropriate (para. 23). It is also a matter of
regret that the absence of a response from the Government of Myanmar
has not rendered possible the engagement of a constructive dialogue
with the Government in the light of the analysis which the Special
Rapporteur has made of the present situation, the current laws and
practices, and the developments described in the report and which
manifestly have an unfavourable impact on human rights in Myanmar.
The Special Rapporteur greatly hopes that the Government of Myanmar
will cooperate and engage in such a dialogue in response to the
concerns of the international community, as expressed in the
resolutions so far adopted by the General Assembly and the Commission
on Human Rights.
II. THE INTERNATIONAL NORMS GOVERNING HUMAN RIGHTS
12. As a Member State of the United Nations, Myanmar has undertaken to
respect the human rights obligations contained in the Charter. Those
obligations are expressed in the Preamble, and in Articles 1 (3), (55)
(c) and 56. Further specificity to those obligations has been
provided by, inter alia, the Universal Declaration of Human Rights
(General Assembly resolution 217 A (III)); the United Nations
Declaration on the Elimination of All Forms of Racial Discrimination
(resolution 1904 (XVIII)); the Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief
(resolution 36/55); the Declaration on the Protection of All Persons
from Being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (resolution 3452 (XXX)); and the Declaration
on the Protection of Women and Children in Emergency and Armed
Conflict (resolution 3318 (XXIX)).
13. In addition to its obligations under the Charter of the United
Nations, other obligations by Myanmar include those arising under the
Convention on the Prevention and Punishment of the Crime of Genocide
of 1948, the Slavery Convention of 1926 (as amended by its protocol of
7 December 1953), and the Convention on the Rights of the Child of
1989. It is to be noted that Myanmar is a member of the International
Labour Organization (ILO) and is a party to its conventions concerning
forced labour (No. 29) and concerning freedom of association and
protection of the right to organize (No. 87).
14. On 24 August 1992, Myanmar acceded to the four Geneva Conventions
of 1949 relative to humanitarian laws of armed conflict.
15. Of particular, though not exclusive, significance in the case of
Myanmar at the present juncture of its constitutional evolution are
the norms proclaimed in the Universal Declaration of Human Rights:
(a) The exercise of political rights without distinction on any
grounds such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status (articles 2 and 21);
(b) The rights through which political rights themselves can
properly and meaningfully be exercised, that is to say, the right to
freedom of thought, the right to freedom of opinion and expression, to
seek, receive and impart information and ideas through any media
(articles 18 and 19), the right to freedom of peaceful assembly and
association (article 20), and the right to freedom of movement
(article 13);
(c) The right to equality before the law, including protection of
the law and the right to a fair and proper trial by an independent and
impartial tribunal and the right to procedural guarantees necessary
for one's defence (articles 7, 10 and 11);
(d) The right to life, liberty and security of person (article
3);
(e) The right not to be subjected to torture or to cruel, inhuman
or degrading treatment or punishment or to arbitrary arrest or
detention (articles 5 and 9).
III. BASIC LEGAL FRAMEWORK GOVERNING THE EXERCISE OF POLITICAL
RIGHTS IN MYANMAR
16. In order to understand the legal framework in Myanmar governing
human rights in general, and political rights in particular, it is
necessary to retrace the recent political history of Myanmar since it
became a sovereign State. In his last report to the Commission on
Human Rights in March this year (paras. 5 to 18 of E/CN.4/1996/65),
the Special Rapporteur recalled much of that history and it will only
be necessary to mention the most salient events.
A. The establishment of the State Law and Order Council and
the imposition of martial law
17. In 1988, a wide-ranging and violent revolt by the people took
place as a combined reaction against, first, the long-felt suppression
of civil and political liberties since the overthrow of the
Constitution in 1962 and the failure of the economic and social
policies practised under the system of the "Burmese Way to Socialism".
There were thousands of deaths and significant numbers of people who
suffered severe injuries and destruction of property in circumstances
which may be said to have given rise to a state of emergency.
18. In these circumstances, as announced in Declaration 1/88 of
18 September 1988, the Armed Forces established martial law,
overturning the Constitution of 1974, dissolved all State organs,
including the Pyithu Hluttaw (People's Assembly) and the State
Council. The Armed Forces constituted for itself the State Law and
Order Council (SLORC) which assumed all legislative, executive and
judicial powers. Legislative power was exercised by instruments
variously called laws, decrees or announcements. Administrative power
was delegated at regional and local levels (that is to say, at the
division/State, township and ward/village levels) to Law and Order
Restoration Councils (LORCs) composed of both civilian and army
defence personnel. With regard to the exercise of judicial power,
various levels of courts were established to handle ordinary criminal
and civil cases. From a juridical standpoint, the assumption of power
by SLORC constituted a break from constitutionality and legal
continuity. However, everything indicated that SLORC did not intend
to arrogate to itself for all time the extra-constitutional powers it
had assumed.
19. As indicated in Declaration No. 1/488, SLORC set itself four
objectives: first, the re-establishment of peace and tranquillity in
the country; second, the restoration and provision of communication
and transport; third, measures to ensure better supply of food,
clothing and shelter by facilitating the operations of private
enterprise and the cooperatives in these sectors; and fourth, when the
first three measures would have been accomplished, the holding of
multi-party democratic elections to be held in a free and fair manner.
20. In due course peace and order must have been sufficiently
re-established to allow a return to civilian rule, as SLORC
established by law an Election Commission, including provisions for
the registration of political parties. It also, most importantly,
promulgated the People's Assembly Elections Law for the holding of
free and fair multi-party democratic elections. All indications were
that the ground was set for the ending of martial law and the transfer
of government to the civilian representatives to be elected by the
will of the people.
B. The general elections of May 1990
21. In May 1990, general elections to the People's Assembly were held
in Myanmar. More than 90 political parties contested the elections,
among which were the National Democratic League (NLD), the National
Unity Party (NUP) and the League for Democracy (LDP). The elections
were generally accepted to have been held in a free and fair manner.
NLD won the overwhelming support of the electorate and obtained over
80 per cent of the seats in the People's Assembly (392 out of a total
of 485) with a 60 per cent share of the vote.
22. It was generally expected that the People's Assembly, as a
constituent assembly, would be convened for the drawing up of a
constitution and, in the meantime, to form an interim government. A
number of obstacles, however, came one after another to thwart the
freely expressed will of the people at the general elections and SLORC
continued to exercise all powers under martial law. It is necessary
to refer to some of these obstacles.
C. Declaration No. 1/1990 and the National Convention
23. First, the official announcement of the results of the poll was
postponed for the apparent purpose of allowing the Election Commission
to scrutinize the expense accounts of all elected representatives.
Second, two months later, in July 1990, SLORC issued Declaration
1/1990, the most important parts of which are reproduced in the annex
to the present report. What was clear at this juncture was that SLORC
would continue to exercise all powers of State; there would be no
transfer of power to the Civil Authorities, whether under an interim
constitution or otherwise, until a new constitution was enacted; and
it would be the responsibility of representatives elected at the
general elections to the People's Assembly to draft the new
constitution.
24. Subsequent events have shown, however, that various measures were
progressively taken, effectively preventing, or at best delaying, the
People's Assembly from being convened. On 18 October 1990, SLORC
Deputy Foreign Minister U Ohn Gyaw announced in the General Assembly
that a broadly based national convention would be convened to discuss
all factors that should be taken into account in drafting the new
constitution. Its drafting would be the responsibility of the elected
representatives. One year later, also in the General Assembly, Deputy
Foreign Minister U Ohn Gyaw stated that in addition to the elected
representatives, leaders of political parties, leaders and
representatives of all national races and respected veteran
politicians would participate in the convention. On the basis of the
national consensus arrived at in the convention, the elected
representatives would draw up a new constitution.
25. It is evident that the issue of convening a National Convention to
draw up guidelines or principles for the eventual drafters of the new
constitution and the issue of the delegates composing the National
Convention emerged as a controversial and unexpected element in the
envisaged process of the transfer of power. Further, a significant
proportion of the elected members of NLD have subsequently been
arrested and imprisoned or else disqualified temporarily or for life
from membership of the People's Assembly.
26. In 1992, a National Convention Committee was formed by SLORC with
the purpose of convening a National Convention to draw up a new
constitution. Its objectives were: non-disintegration of the Union;
non-disintegration of national solidarity; perpetuation of
sovereignty; the establishment of a genuine multi-party democratic
system; the promotion of justice, liberty and equality in the State;
and the participation of the Tatmadaw (Armed Forces) in a leadership
role in the affairs of the State. It is to be noted that the mandate
of the National Convention Committee was not only to select delegates
to attend the National Convention but also to direct the proceedings
and to lay down its objectives, one of which included "the
participation of the Tatmadaw in a leadership role in the national
politics of the State".
27. On 9 January 1993, the Government convened the National Convention
to lay down the basic principles for the elaboration of a
constitution. In a report to the Commission, the Special Rapporteur
noted that, of the 702 National Convention delegates from eight
categories, 49 were selected by the 10 political parties remaining
after the 1990 elections, 106 were elected representatives and the
remainder of the delegates from the six other categories were chosen
by SLORC. In fact, NLD members, despite winning a little more than
80 per cent of the seats in the 1990 general elections, comprise only
about 15 per cent of the 702 delegates and are thus permanently in a
minority. Furthermore, the Special Rapporteur has been informed that
each of the eight groups represented were to have a panel of five
chairmen who would lead the discussions and that, in the political
parties group, only one chairman was from NLD, the party that had won
the majority in the 1990 elections. In the elected representatives
group, where 89 of the remaining 106 delegates were from NLD, no NLD
representatives were selected as chairmen.
28. On 28 November 1995, the Government of Myanmar reconvened the
National Convention. Following the opening address delivered by Lt.
Gen. Myo Nyunt, Chairman of the National Convention Convening
Commission, the representatives and delegates of NLD decided to
boycott the Convention following the denial of an NLD request to
review its working procedures. Subsequently, the National
Convention's Work Committee revoked the delegacy of the NLD delegates
on the ground that they had absented themselves on two occasions
without permission. The Chairman of the Convention invited the
remaining delegates to continue their work in accordance with the
original arrangements. This expulsion was, in the view of the Special
Rapporteur, arbitrary and has highlighted the lack of any meaningful
representation at the Convention. The members of parliament elected
in 1990 now constitute less than 3 per cent of the total current
delegates to the Convention and none are from NLD, the party which had
won the elections and which would otherwise have been the government
returned by the will of the people.
29. The procedures for the working of the Convention have been
controversial and not conducive to any genuine attempt to consider
properly the views of delegates. The issues to be raised and the
papers to be presented are rigidly controlled and supervised at the
level of the National Convention Convening Commission, the chairmen of
the eight discussion groups and at group discussion level as well.
Freedom of expression in general, and political debate in particular,
in the National Convention compound seems to be severely restricted
and circumscribed. Delegates cannot distribute discussion papers
among themselves. All papers have to be distributed to the chairmen
of the groups. The chairmen scrutinize the contents and, if the
statements are found not to comply with the established principles,
the relevant parts are deleted; only then will the papers be read at
the group meetings. When the proposed statements are to be read
before the plenary, they have to be submitted again for scrutiny by
the Work Committee. Moreover, it appears that delegates are not
totally free to meet other delegates and to exchange their views
freely inside the compound. They are reportedly not entitled to
distribute leaflets, wear badges or bring any written or printed
materials to the Convention without the prior approval of the National
Committee.
D. Non-conformity of the legal framework with
international norms
30. Article 21 of the Universal Declaration of Human Rights proclaims,
in paragraph 1, that everyone has the right to take part in the
government of his country, directly or through freely chosen
representatives. It further proclaims, in paragraph 3, that the will
of the people shall be the basis of the authority of government and
that this will shall be expressed in periodic and genuine elections.
31. In essence, the assumption of all governmental powers by SLORC in
1988 constituted, as mentioned earlier, a break from constitutionality
and legal continuity and further constituted a departure from the
norms governing the enjoyment of political rights proclaimed in
article 21 of the Universal Declaration. There could, arguably, have
been some legitimacy in the assumption of power by SLORC, without the
consent of the people, in circumstances which could be said to have
amounted to a state of public emergency threatening the life of the
nation. In any event, as its name indicates, an emergency is only
temporary and cannot be said to last longer than a given situation
requires. It is not uncommon, however, to have a civilian government
managing a state of emergency, with the military playing an important
role but still under the policy directions of the civil authorities.
In the case of Myanmar, general elections took place so that a
civilian government was chosen as a result of the freely expressed
will of the people. The will of the people has remained frustrated
for a period which is now in excess of five years. The question
arises, with growing urgency, as to whether any juridical legitimacy
that could, arguably, have been derived from past acquiescence in the
assumption of power by the Military Forces can any longer provide a
defensible basis for the continued maintenance of a non-constitutional
system based on the assumption of martial powers, having such an
unfavourable impact on human rights in the context of generally
accepted international norms and the obligations undertaken by
Myanmar.
32. SLORC gave the explanation, in Declaration No. 1/1990, that the
People's Assembly could not be convened until a constitution was
drafted and that it was the responsibility of the elected
representatives to draft the constitution. However, it has not been
left to the People's Assembly, returned by the people, to draft the
Constitution and determine the principles on which it should be
founded. Instead, a National Convention, consisting of delegates who
in their overwhelming majority were not returned by the people, was
devised some three years after the general elections of 1990. Two
features of this Convention require to be mentioned. First, it was
expressly mandated to adopt principles on the basis of which a
democratic constitution would be drafted by the People's Assembly.
Already, however, the mandate contained the principle that the Armed
Forces would have a leading political role in the constitutional
system. It is questionable whether this principle would be consistent
with article 21 (3) of the Universal Declaration of Human Rights,
which requires that the will of the people "shall be expressed in
periodic and genuine elections" and that although the Armed Forces can
be understood to be part of the State's services, it cannot be
understood how they could be periodically elected. In any event, this
principle could not be said to have been a political principle
approved by the people in the general elections of 1990. Second,
three more years have gone by since the National Convention started
its work and from all accounts it would appear that detailed
provisions are being worked out for a constitution and not merely
general principles which could be considered by the People's Assembly
in the drafting of the constitution.
33. With regard to the proceedings of the National Convention, the
main criticisms which have been variously made have centred around,
first, the composition of the delegates and the absence of genuine and
proper representation of members returned at the general elections;
second, the restrictions imposed upon the delegates and the
restrictive procedures which are required to be followed; and third,
the restricted opportunity for meaningful discussion, including the
absence of free debate and exchange of ideas. These features do not
appear to constitute the necessary steps towards the restoration of
democracy so as to respect the will of the people as expressed in the
democratic general elections held in 1990 and do not conform to the
rights to freedom of thought and expression in accordance with
international norms necessary for the exercise of political rights,
especially when a constitution is being formulated.
E. Remedial measures for the re-establishment of
constitutionality and the democratic order
34. Given the non-conformity of the present legal framework with
international norms, coupled with steps taken over the past six years
which have been adverse to the implementation of the democratically
expressed will of the people at the general elections, necessary
measures implementing the resolutions of the General Assembly and the
Commission on Human Rights become the more urgent for the
re-establishment of constitutionality and democracy. Some work has
been done in the proceedings of the National Convention. But those
proceedings were themselves flawed by the unrepresentative character
of the Convention and its other features relating to its mandate and
restrictive procedures. In the Special Rapporteur's considered view,
a dialogue should be engaged between the present regime and the
leaders of political parties which have been returned by the people,
with a view to working out such measures as might be considered best
to bring the democratic process engaged in the 1990 elections to
fruition.
IV. IMPACT OF MYANMAR LAW ON HUMAN RIGHTS
35. In Myanmar, several laws criminalize or adversely affect freedom
of thought, information, expression, association and assembly through
fear of arrest, imprisonment and other sanctions. The most commonly
employed laws banning the enjoyment of civil and political rights and
suppressing dissent against SLORC have been the 1923 Official Secrets
Act, the 1950 Emergency Provisions Act, the 1957 Unlawful Associations
Act, the 1962 Printers' and Publishers' Registration Law, the 1975
State Protection Law (Law to Safeguard the State from the Dangers of
Destructive Elements) and Law No. 5/96 Protecting the Stable, Peaceful
and Systematic Transfer of State Responsibility and the Successful
Implementation of National Convention Tasks Free from Disruption and
Opposition.
36. Moreover, these laws are backed up by a series of orders and other
emergency laws still in force which provide the basis for detention in
most cases. Order 1/1991 prohibits civil servants from participating
in politics and their dependants or persons under their guardianship
from participating directly or indirectly in activities aimed at
opposing the Government; Order 2/1988 prohibits the assembly of five
or more persons; and Order 3/1990, relating to the right to assemble
and campaign, forbids criticism of the 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
6/1990 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.
A. Extrajudicial, summary or arbitrary executions
37. The Special Rapporteur has been informed that, since January 1993,
based upon SLORC Order No. 1/933 1992, death sentences passed between
18 September 1988 and 31 December 1992 have been commuted into life
sentences. Furthermore, the Special Rapporteur has this year not
received information indicating that an explicit or systematic
government policy encouraging summary killings would exist. However,
the Special Rapporteur is concerned about reports alleging instances
of killings of civilians or insurgents by members of the Myanmar army
in the insurgency areas.
38. The reports received by the Special Rapporteur often concern
minority-dominated areas where the persons allegedly killed were often
accused of being or cooperating with insurgents, or as a revenge for
acts by insurgents in the area.
39. On 18 October 1995, a section of MI 18 of Buthidaung township,
about 80 miles north of Akayb, in Arakan State arrested five Rohingya
youths from different villages in the township for allegedly having
links with insurgents. During interrogation they were allegedly
severely tortured. Later all five were reportedly executed behind a
hill west of the MI office.
40. On 21 March 1996, more than 50 villagers were reportedly arrested
in Bawdi Gone village, Thantaung township. The village headmaster was
accused of cooperation with the Karen National Union and the All Burma
Students Democratic Front, and later killed.
41. Other reports received by the Special Rapporteur concern cases
where persons were allegedly killed as punishment because they could
not provide goods or services demanded by army troops, including
labour, food, money or arms.
42. The Special Rapporteur has also received allegations that persons
have been killed because they have refused to be relocated. In the
beginning of May 1996, villagers in the Chiang Tong area were told to
move, otherwise they would be shot. Five villagers returned from the
place to which they had been relocated to Kung Sar village with
bullock carts to fetch some rice and were allegedly shot by Battalion
99 while loading the carts.
B. Torture and other cruel, inhuman or degrading treatment
43. The complete prohibition of torture and other cruel, inhuman or
degrading treatment or punishment is embodied in article 5 of the
Universal Declaration of Human Rights and article 7 of the
International Covenant on Civil and Political Rights. In addition,
the Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment describes such acts as an offence to human dignity. In
accordance with this Declaration, no State may permit or tolerate such
acts. Torture, which is an aggravated and deliberate form of cruel,
inhuman or degrading treatment or punishment, is defined in article 1
of the Declaration as follows: "any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted by
or at the instigation of a public official on a person for such
purposes as obtaining from him or a third person information or
confession, punishing him for an act he has committed or is suspected
of having committed, or intimidating him or other persons".
44. Furthermore, article 3 of the Declaration states that "exceptional
circumstances" may not be invoked as a justification of torture or
other similar treatment. This indicates that the rules of
international law set forth in article 4 of the International Covenant
on Civil and Political Rights, which prevents derogation from article
7 even in times of emergency, constitute jus cogens and may therefore
be invoked in respect of any State member of the international
community, regardless of whether or not it has contracted any specific
treaty obligations.
45. In this connection, the Special Rapporteur expresses his concern
at the large number of cases of torture and other ill-treatment
attributable to the Myanmar armed forces through its military,
intelligence and other security personnel. Torture and other cruel,
inhuman or degrading treatment or punishment are regularly employed
against civilians living in insurgency areas, against porters serving
in the army and in working sites where forced labour is practised.
Torture and ill-treatment appear to be common means of punishment and
of obtaining information or confessions, in particular from persons
suspected of anti-government activities.
46. With regard to habitual methods of torture, they are the same as
those described on previous occasions by the former Special
Rapporteur. It is a combination of methods of physical and
psychological torture. In the case of primarily physical methods, the
most frequent are severe beatings with canes or rifle butts, burning
of body parts, stabbing, near suffocation, shackling and sexual
abuses. Other frequently used methods are forcing the victim to adopt
a fixed posture, depriving him of food and water. In the case of
psychological methods of torture, the reports received by the Special
Rapporteur refer to death threats against the victim or his family.
It is alleged that villagers in Kru Gyee village who were suspected of
hiding army deserters were arrested and tortured in January 1996 by
the troops of LIB Commander Kyaw Lin. One villager was beaten so
badly that blood came out of his ears. The soldiers then poured hot
water on his body. A number of other villagers were beaten
unconscious.
47. The Special Rapporteur continues to receive numerous reports
indicating that army troops subject porters to torture and
ill-treatment in the course of their duties.
48. A 20-year-old Karen from Bawgali village, Than Daung township,
Karen State, was reportedly forced to join Infantry Battalion No. 48
in June 1995 as a porter. Carrying dried rations and mortar shells,
he allegedly had to go in front of the troops in order to detect
possible mines. He reportedly stepped on a landmine and was seriously
wounded, was left behind by the soldiers and later died from the
injuries. According to the testimony of a former SLORC soldier, his
senior officer ordered him to beat the porters who could not keep up
with them. If he did not beat them, the officer would beat him. Once
he was ordered to beat a 52-year-old porter until he died, another
time to shoot a porter who tried to escape and to leave him wounded
without medical treatment.
49. Other forced labourers are also reportedly subject to conditions
and treatment amounting to torture or inhuman treatment. According to
allegations received, a man aged around 65 years who worked at the
Ye-Tavoy railway construction was kicked and beaten with rifle butts
and fists by army soldiers because he took a rest under a tree. The
beating stopped only when other villagers explained that he was sick
and therefore weak. The forced workers at the railway construction
sites live in overcrowded conditions, and are not provided with proper
shelter or sanitation. Pregnant women have reportedly worked and
given birth at the labour camps, no care or protection of the infants
being provided after their birth.
50. Village headmen are also said to have been subject to torture or
ill-treatment in cases where they have not been able to provide army
troops with the requested goods or porters. In July 1995, a village
elder in Thein p'Lein village, Kawkareik District was kicked and
beaten with sticks and a rifle since she could not obtain the required
porters as all villagers were away on their farms. The beatings
caused a miscarriage. Two villagers were also severely beaten when
they tried to protect the village elder.
51. The Special Rapporteur has received allegations of sexual assault
and rape of women by army troops. A 15-year-old girl from Kywe Thone
Nyi Ma was reportedly raped so many times by soldiers at a railway
worksite that she bled to death. Some foreigners are said to have
found her unconscious and brought her by car to Tavoy hospital, but
she reportedly died on the way. The soldiers at the worksite had
reportedly also raped a number of other women at gunpoint.
C. Arbitrary arrest and detention
52. With regard to arbitrary arrest and detention, the Special
Rapporteur has received many reports of such violations. An
examination of the laws in force shows that such violations may easily
occur. Further, a multitude of executive orders criminalizing far too
many aspects of normal civilian conduct, prescribing grossly
disproportionate penalties and authorizing arrest and detention
without judicial review, leads the Special Rapporteur to conclude that
a significant percentage of all arrests and detentions are arbitrary
when measured by international standards.
53. The 1950 Emergency Provisions Act allows the imprisonment for up
to seven years of any person who either "infringes upon the integrity,
health, conduct and respect of State military organizations and
government employees", "spreads false news about the government" or
"disrupts the morality or the behaviour of a group of people". One
such example, among many others, is the following. On 15 August 1996,
Dr. Hlaing Myint, a businessman and NLD activist, and U Kyaw Min, an
elected member of Parliament, and Maung Maung Wan, a youth activist,
were sentenced to seven years imprisonment under Section 5 of the
Emergency Act for allegedly trying to foment unrest amongst the
students.
54. The 1975 Law to Safeguard the State Against the Dangers of Those
Desiring to Cause Subversive Acts is also used selectively by SLORC to
carry out indiscriminate and arbitrary arrests and detention. Under
this law, the Council of Ministers is authorized under section (7) of
the Law "to pass an order, as may be necessary, restricting any
fundamental right of a person if there are reasons to believe that any
citizen 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". 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". Perhaps
the most illustrious case is that of Daw Aung San Suu Kyi. The
Government of Myanmar had previously reported that she had been
deprived of 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.
55. Detention on the presumption of what a person might do does not
comply with international standards of justice. Article 11 (1) of the
Universal Declaration of Human Rights stipulates: "Everyone charged
with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had
all the guarantees necessary for his defence". In addition, this Law,
by being applied in the case of Daw Aung San Suu Kyi, in an ex post
facto manner was also inconsistent with international legal standards.
Indeed, article 11 (2) clearly stipulates "Nor shall a heavier penalty
be imposed than the one that was applicable at the time the penal
offence was committed".
56. Several persons have also been arrested and detained under the
1957 Unlawful Associations Act. This law permits the imprisonment for
up to five years of any person who has been a member of, or
contributes to, or receives or solicits any contribution towards any
association "which encourages or aids persons to commit an act of
violence or intimidation or of which the members habitually commit
such acts; or which has been declared unlawful by the President of the
Union". Moreover, anyone managing or assisting in the management of
an unlawful association, or who promotes or assists in promoting a
meeting of such an association, can be subjected to similar
punishment. On 16 May 1996 six students from Yangon University were
reportedly arrested in Rangoon for organizing people in support of the
planned NLD congress. Among those arrested were Ye Kyaw Zwar, a
technology student, and Kyaw Kyaw Htay, a first-year English major.
57. Another provision which has also been used to arrest individuals
is section 122 (1) of the Penal Code under which anyone found guilty
of "high treason" can be punished with death. Several persons have
received long-term sentences under this provision.
58. On 20 August 1996, Do Htaung, an elected member of Parliament from
Kale-1 Sagaing Division, Khun Myint Htun, an elected member of
Parliament from Mon State, Khin Maung Thaung, a youth activist Kyaw
Htwe, Kyi Aung, Tin Maung Aye, Kyaw Thaung, Aung Kyi, U Pwa, U Hla
Soe, MP elect from Minbu-2, Magway Division, Than Htay, Khin Maung
Myint, Dr. Khin Ma Kyi, Dr. Khin Soe Win and U Sein Myint are reported
to have been sentenced to seven years imprisonment under Act 122/2 for
high treason on the ground that they had contacts with Burmese
dissidents in India. Myanmar television announced their arrests and
sentences, saying that the group had conspired to send members for
training in political defiance with exiled colleagues in India led by
Tint Swe, had distributed leaflets attacking military-organized
constitutional talks and had made plans to open a secret office in the
town of Monywa. Khin Maung Thaung, U Kyi Aung and Kyaw Htwe were
reportedly arrested for possessing a critique of the National
Convention made by the Burma Lawyers' Council, an expatriate
opposition group. According to the same report, Kyaw Thaung, U Pwa
and U Aung Kyi were apparently arrested for possessing "political
letters" and material from "illegal organizations".
59. On 14 June, a 27-year-old NLD activist Tin Hlaing, a bodyguard of
Daw Aung San Suu Kyi, was arrested for spreading "a disinformation".
On 20 August, he was reportedly sentenced to seven years imprisonment
under Act 122/2 for high treason.
60. These laws are inconsistent with a number of principles enshrined
in international human rights instruments. Article 29 (2) of the
Universal Declaration of Human Rights stipulates that "in the exercise
of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society".
61. The Special Rapporteur holds the view that none of the acts for
which these persons have been detained could be construed as a threat
to national security. It would seem that the laws are simply used
against citizens exercising their legitimate rights to free
expression, free association and peaceful political activities. Mere
criticism of the Government or SLORC, or of the National Convention
procedures, as well as political dissent generally, have been made
into criminal acts.
D. Due process and the rule of law
62. The notions of "due process of law" and "rule of law" are
integrally linked. The rule of law is poorly served and undermined if
the requisites of due process are not respected, and the notion of due
process becomes meaningless if the rule of law is not secure. These
two notions are defined, in particular, in articles 10 and 11 of the
Universal Declaration of Human Rights. Further, the rule of law
requires more than respect for procedural rights: it requires respect
for all rights in order to provide protection against the risks of
arbitrariness.
63. While judicial guarantees set out in the now defunct Constitution,
according to the Government, do not apply, through correspondence
received by the Centre for Human Rights, the former Special Rapporteur
had been informed by the Government of Myanmar that those elaborated
in the Code of Criminal Procedure applied in all cases heard in
civilian courts even when the detention was carried out under a SLORC
order or an emergency regulation. The Code of Criminal Procedure
provides that an arrested person may only be detained for 24 hours
before being brought before a judge, who decides on the remand of the
suspected person up to 30 days, or his release. The rights of an
accused person standing trial are guaranteed by the Evidence Act
(under which the accused may cross-examine witnesses for the
prosecution) and by various provisions of the Code of Criminal
Procedure, including the Court Manual. The accused has the right to
be represented by counsel of his own choosing. If he cannot afford to
retain a defence counsel, a court-appointed counsel is assigned to him
if the offence carries the death sentence, otherwise not. The accused
is tried at a public hearing (unless the law requires otherwise).
64. However, the Special Rapporteur has received numerous reports
alleging the absence of counsel during trial, the absence of time and
facilities to prepare a defence, and all other attendant guarantees.
The examination of a few reported cases will help illustrate the
problems.
65. It was reported that U Win Htein was arrested at midnight on
19 May 1996. When he asked whether there was a warrant for his
arrest, he was told that a warrant was unnecessary because it was
already decided how he was going to be sentenced. U Win Htain, and
other members of NLD arrested with him, were tried on 7 August 1996.
Although NLD sent lawyers to Insein prison, nobody was produced for
trial. The lawyers were told that there was to be no trial that day
and that they should not wait. NLD lawyers became aware that a trial
was taking place when they saw the Magistrate who normally presides
over these sessions, U Hla Phyu, leave Insein prison. When they
caught up with him at Insein Court, they were told by the Magistrate
that he could not tell them what sentence had been passed and that the
lawyers should apply officially for a copy of the trial proceedings.
66. U Win Htain was arrested for arranging a meeting with NLD members
U Poe Aye and his son Maung Htein Lin who made a videotape of the dry
season paddy yield. It was also reported that obstacles had been
placed before NLD when they tried to exercise their right of appeal.
Families of the detained were also denied visiting rights and the
defendants were tried in a secretive way.
67. Another reported case of an unfair trial has been brought to the
attention of the Special Rapporteur. On 4 January 1996, a group of
several comedians, celebrating Independence Day, performed dances and
songs at Daw Aung San Suu Kyi's house. A few days later, the members
of the group were arrested in Mandalay by officers from Military
Intelligence Unit 16, for having allegedly performed a satire of the
authorities. The following persons were arrested: U Pa Pa Lay, U Lu
Zaw, Ma Hnin Pa Pa, Myodaw Win Mar, U Htwe, U Tin Myint Hlaing, U Sein
Hla and U Win Htay. Two other members of the group, Daw Myaing and Ma
Yin Tin Swe, were reportedly arrested on 11 January. Another two
persons, U Myint Thein and U Aung Soe, who had helped arrange the
performance, were also arrested on 12 January 1996.
68. U Pa Pa Lay and U Lu Zaw were charged under section 5 (e) of the
1950 Emergency Provisions Act, while U Htwe and U Aung Soe were
charged under section 109. All of them have been sentenced to seven
years imprisonment for "spreading false news". According to reports
received by the Special Rapporteur, they were not allowed any legal
representation and witnesses have been prevented from attending the
trial in order to testify and provide evidence. The eight remaining
members of the group were released a month later.
69. It was reported that Ko Khin Tun was arrested on 6 November 1995
for having taken a photograph of a person serving a sentence in Insein
prison whom he saw ploughing a vegetable plot outside the prison,
while he was on his way to visit him. He was reportedly charged under
section 5 (d) and section 42 (prison regulations). He was not allowed
any contact with his family. Although he asked for the services of a
lawyer from the time he was first tried, his request was not granted.
Only 70 days later, on 17 January 1996, the last day of his trial, was
he permitted the services of a lawyer. On that day, the crucial
evidence, the film concerned, could not be produced. Nor was the
member of the prison staff, who was the principal witness for the
prosecution, present for cross-examination. Further, Ko Khin Tun was
not given an adequate opportunity to defend himself. He was
reportedly sentenced to four years and three months imprisonment.
70. Virtually all reports received by the Special Rapporteur relate to
similar violations, in addition to the fact that there is no
proportionality between offences committed and punishments applied,
particularly in political or related cases. An obvious example
reported to the Special Rapporteur is that of an NLD member, U Saw
Hlaing, who was arrested by the police following a minor car accident.
He was later reportedly sentenced to five years imprisonment at
Kyungon police station for causing "grievous bodily harm" under
section 338 of the Myanmar Penal Code after a summary trial. He was
allegedly not allowed visits by a lawyer or family members.
71. The conclusions that can be drawn from the reported cases are that
neither is due process of law generally respected nor is the rule of
law upheld. On the contrary, the information received reveals a
consistent, if not routine, failure to respect due process and the
rule of law. This is no doubt the result of rule under martial law
without any constitutional legitimacy where the content and
application of laws guaranteeing individual rights are overtaken by a
martial policy of repressing and punishing political dissent or any
risk of it.
E. Prison conditions
72. Given the fact that the former Special Rapporteur was denied
access to prison cells and could not meet with any detainee while
visiting Myanmar last year, and given the fact that the Government of
Myanmar rejected the International Committee of the Red Cross (ICRC)
standard requirements for visits to places of detention, the Special
Rapporteur can only rely on the complaints of former detainees and
their families, which strongly indicate that Myanmar prison conditions
do not comply with the Standard Minimum Rules for the Treatment of
Prisoners established by the United Nations in 1955 and approved by
the Economic and Social Council in its resolution 663 C (XXIV) of
31 July 1957.
73. The reports received suggest that ill-treatment is common.
Prisoners are allegedly tortured and subjected to cruel, inhuman or
degrading treatment and punishment such as beatings, various forms of
water torture and electric shock treatment. Prisoners breaking the
prison rules are said to be subjected to harsh punishments, including
beating, being kept in the hot sun for long periods and being forced
to crawl over sharp stones. The treatment of the political prisoners
in Insein prison is reportedly especially harsh. They are allegedly
subjected to torture both before and after sentencing and are liable
to be sent to solitary confinement in the so-called "police dog cells"
(a small cell where police dogs are normally kept), without any bed or
bedclothes.
74. The Special Rapporteur notes with concern reports of very poor
health and sanitary conditions in Myanmar prisons. Prisons are
reportedly regularly overcrowded. It is alleged that prisoners
receive inadequate food in amount and quality and that they are
allowed insufficient means to keep up hygiene. There is reportedly
also a lack of proper medical care and adequate medical provision.
The Insein prison hospital reportedly has only one doctor, who does
not himself carry out examinations or prescribe medicines; this is
done by prisoners with only a rudimentary knowledge of medicine. The
hospital provides few medicines. Food and medicines brought by
families are said to be often confiscated by the prison authorities.
A number of prisoners reportedly suffer from contagious and serious
diseases, such as dysentery and malaria. There is also a growing AIDS
problem in Myanmar prisons.
75. A prisoner named U Htwe who is currently detained in Insein prison
is said to be suffering severely from malaria and is not receiving
adequate treatment.
76. On 2 August, U Hla Than reportedly died at Yangon General
Hospital. According to the prison authorities, his death was caused
by tuberculosis and an HIV infection. The Special Rapporteur has been
informed that needles which are not properly sterilized are used in
the prison hospital, and that there is a drug problem in the prisons,
which also contributes to the spread of HIV.
77. Mr. James Leander Nichols, who had been arrested in
early April for illegal possession of communications equipment
(telephones and fax machines) was sentenced to three years
imprisonment on 18 May 1996 and died in custody on 22 June 1996. He
had allegedly been deprived of sleep during long interrogations prior
to his death. Mr. Nichols was 65 years old and suffered from heart
problems and diabetes. The Myanmar authorities, in a "press
statement" issued on 16 July 1996, denied that he was tortured and
stated that he died from natural causes due to a stroke and heart
attack.
78. The Special Rapporteur has also received reports of prison labour.
This is claimed by the Government to be a way of reintroducing the
prisoners into society. Such camps for prisoners reportedly exist
inter alia in the Kabow valley in Tamu township in Sagaing Division.
The camps include Wet Shu, Thanun and Yezagyo, and their conditions
are said to be extremely bad. The Special Rapporteur notes that
prison labour may only be imposed as a consequence of a conviction in
a court of law. Allegations indicate that this condition is not
respected. The harsh prison conditions, especially the inadequate
health care, have allegedly led to the death of a number of prisoners
in prison labour camps.
79. At the labour camp in Ywangan, Hanmyinmo Road, Sagaing Division,
400 prisoners reportedly died within a month. In Taungzun, Mopalin
Quarry, Mon State, 30 per cent of the prisoners have reportedly died.
It is said that 108 out of 530 prison inmates died from starvation,
sickness and hard work during one year in Boke Pyin prison labour
camp. About 500 prisoners are said to be kept at the 30-Mile labour
camp, where they break rocks into pieces for the construction of the
railway in Yebyu township.
80. The Special Rapporteur is also concerned about the case of U Pa Pa
Lay, who is reportedly gravely ill in Myitkyina prison in Kachin
State. U Pa Pa Lay and U Lu Zaw were reportedly transferred to a
labour camp at Kyein Kran Ka near Myitkyina in early April 1996. They
were forced to work with iron bars shackled across their legs, and had
lost a considerable amount of weight. U Lu Zaw has been transferred
from the labour camp to Katha prison, near Myitkyina in Kachin State.
U Aung Soe and U Htwe were initially sent to a labour camp seven miles
from Myitkyina; in May 1996, they were reportedly moved to Sumprabom
in northern Kachin State, where they were forced to break rocks.
81. It has also been alleged that convicts are taken from prison to
serve as porters, often shortly before their sentences are to expire,
and then forced to work under very poor conditions long after they
should have been released from prison. About 500 prisoners and about
1,000 civilians are said to be kept as labourers at the 30-Mile labour
camp. The prisoners break rocks into pieces for the construction of
the railway in Yebyu township. According to reports of the villagers,
about 40 of the prisoners working on the Ye-Tavoy railway have died
during construction work. Only some of the sick or injured prisoners
are reportedly taken to the prison hospital. Also prisoners from Zin
Bar camp, where about 400 prisoners are reportedly detained, are said
to have participated in the building of the Ye-Tavoy railway in 1995.
82. Freedom of expression is denied in Myanmar prisons. Prisoners are
reportedly denied reading and writing material. One prisoner, who was
found with a piece of paper, was allegedly placed in shackles in a
"police dog cell", for one month. Prisoners suspected of having sent
letters with allegations of ill-treatment and poor conditions to the
former Special Rapporteur, Professor Yokota, have reportedly been ill
treated since November 1995 in Insein prison. On 28 March 1996, 20
prisoners implicated in the drafting of the letter, as well as in the
hiding of three radio sets and distributing a clandestine newspaper
within the prison, were allegedly tried and given additional sentences
of 5 to 7 years. Among them were newspaper editor Win Tin and editors
of the Bay Bhuhlwe magazine, Myo Myint Nyein and Sein Hlaing. Zaw Myo
Aung, General-Secretary of Ma Ka Tha Pha, the National Students'
Organization, was reportedly sentenced to three months solitary
confinement in a "police dog cell" in Insein prison for breaking
prison rules, the reason being a dispute on philosophy with another
prisoner held after 9 p.m. and the fact that he said that "he was not
afraid to tell the truth to any one even if he was a prison official",
which was considered lack of respect for prison authorities.
F. Freedom of opinion
83. The freedom of thought, opinion and expression are embodied in
articles 18 and 19 of the Universal Declaration of Human Rights.
These three freedoms are obviously interlinked since freedom of
expression is designed to give effect to the freedoms of thought and
opinion.
84. The Special Rapporteur has found that freedom of expression in
Myanmar is seriously restricted by several combined laws which are
difficult to reconcile with article 19 of the Universal Declaration on
Human Rights. These laws affect not only freedom of expression but
also freedom of information through any of the media.
85. The Myanmar media (television, written press and radio) continue
to be subject to governmental censorship and are largely used as
instruments to propagate governmental points of view.
86. Under the 1962 Printers' and Publishers' Registration Law,
periodicals, magazines and films must be submitted to the "Press
Scrutiny Board" prior to being printed or, in some cases, distributed.
Authors, editors, publishers and distributors convicted for having
transgressed its provisions face harsh penalties, which have been
increased in June 1989 by SLORC Order 16/89 to a maximum of seven
years' imprisonment for each infringement of the law and/or fines of
30,000 kyats.
87. Another law which restricts freedom of expression is the Myanmar
Wireless Telegraphy Act. This law which was amended on
22 October 1995 (Amendment Law No. 15/95), stipulates that whoever
possesses any wireless telegraphy apparatus without a licence shall be
punishable with imprisonment for a term which may extend to three
years or a fine which may extend to 30,000 kyats, or both. As
mentioned in paragraph 27 above, Mr. James Leander Nichols, a former
consular representative of some States, was arrested in early April
for illegal possession of communications equipment (telephones and fax
machines). He was sentenced to 3 years imprisonment on 18 May 1996
and died in custody on 22 June 1996.
88. Under the 1985 Video Law, all videos must also be submitted to the
Video Censorship Board for scrutiny. Those involved in the making,
copying or distribution of videos have been threatened with prison
terms of up to three years under the Law. On 19 May 1996, U Win Htein
was arrested for arranging a meeting with NLD member U PO Aye and his
son Maung Htein Lin, who had made a videotape of the dry season paddy
yield. This was interpreted as a disruption of a State agricultural
project, agitation and spreading disinformation about the poor rice
harvest. They were reportedly tried on 7 August 1996 and charged
under section 5(e) of the 1950 Emergency Provisions Act for having
spread disinformation about the rice harvest.
89. Apart from censorship, the Government of Myanmar continues to
intimidate its citizens and discourages them from exercising their
fundamental right to freedom of expression by, first, criminalizing
its exercise and, second, prosecuting "offenders".
90. It was reported that in May 1996, a monk named U Kaythara was
arrested near Bandoola Park for writing on the palm of his hand that
SLORC should have a dialogue with NLD and held a piece of paper also
saying that SLORC should start a dialogue. It was further reported
that his trial took place on 15 August and that he was sentenced to
seven years imprisonment under section (5)j of the 1950 Emergency
Provisions Act.
91. On 27 January 1996, in Yangon, six members of the Insein township
branch of NLD were allegedly arrested by Military Intelligence Unit 6
for having written a poem commemorating the 1991 death in custody of
U Tin Maung Win. The men were U Win Naing (32), U Khin Maung, U Thein
Tun (56), lawyer U Maung Maung Lay (50), U Aung Myient (34) and U Htay
Kywe (40). U Maung Maung Lay and U Aung Myint were released in
February and U Khin Maung on an unknown date.
92. A group of four political activists were reportedly arrested for
the possession of a critique of the National Convention by the Burma
Lawyers' Council, which is an expatriate opposition group. Another
group of three people were arrested for possessing letters about
politics and materials from illegal organizations. Their dates of
arrest and places of detention are unknown. All seven men, who are
from Mandalay and Sagaing Division, were scheduled to appear in court
on 19 June, but it is not known if they were charged and sentenced at
that time.
93. On 23 September, the government press announced that nine students
had been arrested for distributing leaflets outside Daw San Suu Kyi's
house on charges of disrupting the nation's peace and tranquillity.
94. In Myanmar, the exercise of the freedom of opinion, particularly
in political matters, is currently violated by the ban on the
expression of any kind of political dissidence for the duration of the
period of transition or drafting process of the new constitution at
the National Convention, which, under the relevant circumstances, has
no time-frame. The situation has given rise to widespread friction
between the authorities and the various bodies of opinion seeking to
establish a political position for themselves in the public life of
Myanmar. In order to prevent any dialogue on the political situation
which could take place outside the National Convention, the Myanmar
authorities published, on 7 June 1996, a law called "The Law
Protecting the Peaceful and Systematic Transfer of State
Responsibility and the Successful Performance of the Functions of the
National Convention against Disturbances and Oppositions". Under this
law, any organization or person who incites, demonstrates, delivers a
speech, makes an oral or written statement and disseminates anything
in order to "undermine the stability of the State, community peace and
tranquillity and prevalence of law and order", "national
reconsolidation" or "undermine, belittle and make people misunderstand
the functions being carried out by the National Convention ..." shall
be subject to imprisonment for a term of a minimum of 5 years to a
maximum of 20 years and may also be liable to a fine. This Law also
forbids anyone or any organization to carry out, draft "the functions
of the National Convention" or draft or disseminate the "Constitution
of the State without lawful authorization".
G. Freedom of assembly and association
95. With regard to the issue of freedom of association, violations
take two principal forms: restrictions on association of a political
nature, and the right to form and join independent trade unions.
96. The repressive political climate in Myanmar since 1990 has made it
virtually impossible for opposition parties to function and they have
been severely hampered through constant pressure and arrests, with
some members of Parliament in prison and some in exile. This is a
result of the existence of a complex array of security laws which
provide the Government with sweeping powers of arbitrary arrest and
detention.
97. Since November 1995, when the NLD leaders withdrew from the
National Convention, there has been increasing harassment of the party
by SLORC, including arrests of dozens of party members over the last
six months. The Special Rapporteur has already mentioned the cases of
NLD activists who have been detained for possessing videotapes of Daw
Aung San Suu Kyi's weekend speeches, others for a satire of SLORC in
an NLD-sponsored performance, or others for writing a poem
commemorating the death in custody of an NLD colleague.
98. This harassment and the arrests culminated during the third week
of May 1996 when more than 200 NLD members, among whom many had been
elected to the country's parliament in the May 1990 elections, were
arrested by Myanmar authorities in order to prevent them from
attending a meeting organized by NLD leaders in Daw Aung San Suu Kyi's
house. The meeting was to take place from 26 to 29 May 1996 to mark
the sixth anniversary of the NLD victory in the 1990 elections. The
arrests have been widely seen as a pre-emptive attempt by SLORC to
prevent the meeting from occurring. While most of the persons
detained were released a few days later, the Centre for Human Rights
has obtained the names of 27 persons who are believed to remain in
custody but how many of the total of the detained persons have been
freed cannot be confirmed. The planned NLD meeting took place from
26 to 28 May at the compound of Daw Aung San Suu Kyi; however, only
18 delegates were able to attend, as the rest had been detained. No
barricades were erected in front of the compound, and people were
allowed to pass in and out freely.
99. On 23 May 1996, the United Nations High Commissioner for Human
Rights met with the Permanent Representative of Myanmar to the United
Nations at Geneva, expressing his concern over the arrest and
detention of members of NLD. On 28 May 1996, following the meeting,
the High Commissioner issued a press release in which he expressed his
concern with regard to the recent arrest or detention of more than 100
members of the National League for Democracy. The High Commissioner
drew the attention of the Ambassador to the fact that the freedom of
expression was a basic and internationally recognized human right
standard and expressed the hope that the people arrested or detained
would be allowed to express freely their views and opinions and
demonstrate peacefully. The High Commissioner therefore asked the
Government of Myanmar to do its utmost to ensure the full enjoyment by
all of the freedom of opinion, expression and association, and to keep
him informed of any further developments.
100. The Government of Myanmar has not brought charges against the
members of the group. Myanmar officials claimed in numerous
interviews and press statements that the elected members of parliament
and other NLD members were not arrested but were instead called for
questioning and were treated well. In a letter dated 23 May 1996
addressed by the Permanent Representative of the Union of Myanmar to
the United Nations at Geneva for the attention of the Centre for Human
Rights, the Government justified its action as follows:
"The threat of breakdown of law and order only brings about
possibilities of the disruption of studies once more for students
who are only now getting into the rhythm of an uninterrupted
pursuance of education, the creation of anxiety in the minds of
the populace, the hindrance of business and trade, as well as
putting a check on the momentum of development projects undertaken
by the Government. The Government is convinced that it has a firm
duty that progress goes on without a break.
"With these possibilities of a breaking down of the peace and
stability of the country in mind, and in order to prevent a repeat
of the unrest that occurred in 1988, the Government of Myanmar has
had to undertake what it sees as the best means of action for all
the people and the country. Those who have been called in for
questioning have not been arrested, nor have they been put into
prisons or detention centres. They have instead been lodged at
guest houses and given good treatment while the questioning is
taking place".
101. The Special Rapporteur is aware that since the release of
Daw Aung San Suu Kyi, she is allowed, with her colleagues, to make
regular weekly appearances at her home in Yangon and to speak to
Myanmar citizens who gather there every weekend. However, the law
prohibiting public gatherings of more than five people (Order 2/1988)
remains in force. In recent weeks, it was reported that the military
intelligence has started to arrest people attending Daw Aung San Suu
Kyi weekend speeches delivered at her gate. On 13 June 1996, Maung
San Hlaing, also known as Tin Hlaing or Eva, one of Daw Aung San Suu
Kyi's aides, was arrested after he left her home compound for the
first time in 20 days. Apparently, on 14 and 15 June, officers from
Military Intelligence Unit 12 searched his family's home and
confiscated videotapes and photographs.
102. According to information received by the Special Rapporteur,
military intelligence personnel have used video recordings of the
weekend meetings to identify participating civil servants or members
of their families, and has then threatened them with dismissal if they
continue to attend the meetings.
103. In connection with the meeting referred to in paragraph 98
above, on 28 September 1996, scuffles occurred between the crowd which
had gathered outside Aung San Suu Kyi's compound, and Riot Control
Forces, who responded by beatings and forcing about 100 people, at gun
point, onto military trucks. Heavily armed police blocked the roads
leading to Daw Aung San Suu Kyi's house, some of them reportedly
entering the compound and taking away her maid, and the Government
issued a statement ordering her not to leave her house for three days.
Daw Aung San Suu Kyi thus effectively remained in house arrest. The
signboards of the NLD headquarters had been taken down and replaced by
signs saying that NLD was no longer in that place. Since no one was
able to reach Aung San Suu Kyi's house, the usual weekend speeches
could not take place.
104. On 27 September 1996, the United Nations High Commissioner
for Human Rights met with the Permanent Representative of Myanmar to
the United Nations at Geneva. He expressed his concern over the
recent arrest or detention of the NLD members and his hope that the
people arrested or detained would be allowed to express freely their
views and opinions and demonstrate peacefully.
105. In a letter addressed, on 1 October 1996, by the Permanent
Representative of the Union of Myanmar to the United Nations at Geneva
for the attention of the Centre for Human Rights, the Government
justified its action as follows:
"For stability of the State, community peace and tranquillity,
security authorities curbed a bid by the NLD to hold a meeting
with a gathering of people from 27 to 29 September 1996.
"On 27 and 28 September, security authorities called in
temporarily for questioning some persons from the NLD in Yangon
and some townships who were going to assemble for the Congress.
There are altogether 159 persons - 136 in Yangon and 23 in other
townships. All of them were accommodated at guest houses
temporarily, some of them are on their way back to their home from
those guest houses. Assembling of people at Daw Suu Kyi's house
on University Avenue and the Party's office of Shwegondine Road
for the purpose of holding the Congress was restricted".
106. In a prelude to the September events, the Government, in a
press conference held on 31 August, accused Daw Aung San Suu Kyi of
"having secret contacts with illegal groups abroad that were trying to
overthrow the Government, coordinating activities and accepting
subversive materials from them". Colonel Kyaw Thein, a military
intelligence official, added that "democratic freedoms, including
political opposition, can cause instability" and that these activities
"must be put on hold while Myanmar focuses on economic progress". On
25 September, in an article published by the State-run newspaper New
Light on Myanmar, it was mentioned that Daw Aung San Suu Kyi would
soon be charged with political crimes as she was working in conspiracy
with former colonial powers and aiding exiled dissident groups in a
plot to topple the Government. Earlier, military intelligence
officers claimed to have charts and printed material proving Daw Aung
San Suu Kyi's involvement with exiled dissident groups.
107. Aside from the weekly gatherings at Daw Aung San Suu Kyi's
house, NLD has been subjected to intense and systematic harassment.
It is reported that members of the party are constantly intimidated by
local authorities as well as by armed forces personnel. After the
withdrawal of the NLD delegates from the National Convention, several
reports indicate that new restrictions have been placed on NLD members
and that Vice-Chairmen U Tin Oo and U Kyi Maung are reportedly under
constant surveillance and routinely harassed. Their houses, as well
as Daw Aung San Suu Kyi's residential compound, are under constant
surveillance.
108. Reports indicate that there were repeated attempts to
restrict NLD leaders' movements. In March 1996, when NLD leaders,
including Daw Aung San Suu Kyi, U Kyi Maung and U Win Tin, attempted
to travel to Mandalay to give testimony at the trial of NLD members,
they were told just before they arrived at the train station in Yangon
that their railway carriage was broken. Most of the NLD leaders who
wish to travel outside Yangon are required to inform the authorities
in advance. On arrival at their destination, they have to report to
the local authorities. Whenever members of NLD travel outside their
residential areas, the houses where they will be residing are
allegedly checked strictly to see if the owners have been prompt in
reporting the visitors to the local authorities. Should the owner be
a member of the civil services, he is asked not to allow members of
NLD to stay in his house.
109. It is further reported that when a house is rented out to any
political party, the landlord has to give a signed undertaking to the
Township Law and Order Restoration Council agreeing to accept all the
consequences that might follow - sealing of the premises, confiscation
of the house and even arrest of the owner. On 3 March 1995, NLD
applied to the Yangon Division General Elections Commission for
permission to open its Yangon Division Office on a new site. There
was no response from the Commission. The Yangon Division NLD made
three further applications, on 9, 17 and 24 May 1995, to open its new
office, but to date there has been no response of any kind.
110. Many members of political parties have been reportedly
evicted from State- owned apartments where they had lived for many
years. This was reportedly the case of U Win Tin and U Tin Latt of
NLD, and Boh Aung Naing of the People's Volunteer Organization.
111. As a further form of harassment, a concerted effort was made
by local authorities to remove all signs of an NLD presence on main
roads or at any place where they might be exposed widely to the
public. Consequently, NLD offices have reportedly had to be moved to
obscure locations. The Special Rapporteur was told that in Mayangone
(Yangon Division), the authorities demanded that the NLD signboard be
reduced in size. It was further reported that in Sagaing Division,
the Township Law and Order Restoration Council offices sent a letter
to NLD offices instructing them to take down their signboards.
112. The harassment of NLD and the pressure under which its
members are living have led some of them to resign. The resignation
is publicized in the Government-controlled newspaper, New Light on
Myanmar. In its edition of 2 July 1996, the following article was
published:
"Dr. Kyin Thein of the National League for Democracy, Hluttaw
representative elected at the Multi-party Democracy General
Election from Yay Township Constituency-2, Mon State, submitted of
his own volition to the Multiparty Democracy General Election
Commission that he be permitted to resign as Pyithu Hluttaw
representative-elect as he no longer wishes to do party politics;
and U Sai Aung Than of the National League for Democracy, Hluttaw
representative elected at the Multi-party Democracy General
Election from Hsipaw Township Constituency-2, Shan State, also
submitted of his own volition to the Commission that he be
permitted to resign as Pyithu Hluttaw representative-elect as he
has already resigned as a member and organizer of the National
League for Democracy and no longer wishes to be involved in party
politics.
"The Commission announces that Dr. Kyin Thein and U Saing Than
have been permitted to resign from being representatives-elect of
Yay Township Constituency-2 and Hsipaw Township Constituency-2
respectively effective today under Section 11 (e) of the Pyithu
Hluttaw Election Law".
113. With respect to the right to form and join trade unions, and
although Myanmar had freely ratified ILO Convention No. 87 of 1948
concerning Freedom of Association and Protection of the Right to
Organize in 1955, workers and employees in Myanmar do not enjoy the
right to join organizations of their choice outside the existing
structure. Furthermore, such organizations do not have the right to
join federations and confederations or to affiliate with international
organizations without impediment.
114. The Government of Myanmar announced that the Laws Scrutiny
Central Body was reviewing a draft trade union law so as to protect
the rights of workers and that, in the near future, the body of laws
pertaining to freedom of association in Myanmar would be in line with
Convention No. 87.
115. The Special Rapporteur has noted that, in June 1996, at the
eighty-third session of the International Labour Conference in Geneva,
the matter of freedom of association and protection of the right to
organize in Myanmar had again been raised, for the ninth time
since 1981, before the Committee on the Application of Standards. The
Committee of Experts had commented on its application in Myanmar in 12
of its last 15 reports. Yet, ILO had not received any report from the
Government, as requested by the Committee in a special paragraph of
its report in 1995. To date, no developments whatsoever, either in
law or in practice, had been conveyed to the Office of ILO. The
necessary measures had not been taken in order to ensure workers the
right, without prior authorization, to form organizations of their
choice to effectively defend their interests, and to guarantee
organizations of workers and employers the right to affiliate with
international organizations of the same kind, as provided in
articles 2, 5 and 6 of the Convention.
116. This year, after having taken note of the information
provided by the Government of Myanmar and the subsequent discussion,
the Committee deeply regretted the fact that very serious and
persistent violations of the fundamental principles of the Convention
were continuing in Myanmar. The Committee could only observe that
there were no trade unions in the country whose objective was the
defence and the promotion of the interests of the workers in the sense
of the Convention. The Committee urgently requested the Government to
take all necessary measures to guarantee the workers and the employers
the right to set up the organization of their choice, without previous
authorization, as well as the right of the organizations to become
affiliated to international workers' and employers' organizations.
H. Freedom of movement and forced relocation
117. With regard to the freedom of movement inside the country,
the Special Rapporteur notes that Myanmar citizens are required to
inform the authorities of their movements within the country and the
names of overnight guests must be reported to and registered with the
local authorities. Furthermore, the Special Rapporteur has been
informed that only citizens carrying identity cards are free to travel
within the country, which precludes those residents unable to meet the
restrictive provisions of the citizenship law, such as the Muslim
population living in Rakhine State.
118. Leaving the country requires the possession of specific
government authorization, which it is reportedly difficult to obtain.
Application for exit visa and passport requires certificates of
nationality and security clearances which many citizens either do not
possess or cannot obtain. Passport applications are reviewed by a
board and decisions appear to be dependent on political
considerations. The Special Rapporteur has been informed that each
time Myanmar citizens come back to their country, they have to return
their passports to the authorities and a passport application should
be submitted each time they want to travel outside the country.
119. Reports indicate that the Government has been responsible for
the forced displacement of nearly 100,000 Myanmar citizens. Ethnic
minorities living in places where armed opposition groups are active
are relocated into areas under government control. The aim is to cut
insurgents from local support and to prevent them having access to
food supply. Relocated persons seem not to be given enough time or
possibilities to bring all their possessions with them. Often
livestock must be left behind and houses are burned by the army. The
relocated persons are said to receive little or no compensation and
cannot take much with them when they leave their houses. Contrary to
promises given by the army before relocation, it appears that the
relocation sites are not prepared for the arrival of large numbers of
people, the ground is not cleared and there are inadequate water
supplies. The relocated persons must reportedly buy their plots of
land at the allocated areas, and people live in shelters or under
other people's houses, as they cannot afford to build new houses.
120. Information received by the Special Rapporteur suggests that
98 villages in central Karen State received orders to relocate on
1 and 2 June 1996. It is, for example, reported that the villagers in
the area between the Pon River and Salween River were told to move to
relocation sites beside SLORC army camps at Sha Daw and Ywathit by
7 June, and that after this date army troops would enter the villages
and consider anyone remaining there as enemies.
121. Forced relocation has also been reported in central and
southern Shan State since March 1996. In this area, almost every
village away from towns and major roads has reportedly been forced to
move, covering the entire region from Salween River westwards to Lai
Kha and Mo"ng Kung, and from Lang Ker and Mong Nai in the south
northwards to the area west of the ruby mines at Mong Hsu.
122. Relocated persons are subject to restrictions of movement and
a written pass is needed in order to leave the relocation site. A
Shan farmer reported that those who have been relocated as of March
1995 in the site near Baw La Keh, Karen State, are not permitted to go
further than 3 miles from the camp. Persons who have been relocated
in a camp called Shadaw in June 1996 reported that they were given no
food and that in order to leave the camp and return to their village
to obtain food, they had to pay for a pass and could only be away for
two days.
123. Villages resisting relocation are reportedly subject to
harassment, looting, burning and torture. Reports suggest that by the
end of October 1995, 17 villages in Bawgali area had been burned and
livestock shot in an attempt to drive villagers into
military-controlled areas. Hundreds of villagers were reportedly
taken as porters, and others shot on sight.
124. Reports received indicate that large groups of relocated
villagers have been used as forced labour on road construction or army
projects. In April 1996, the population of Wan Jok village,
consisting of about 125 households in Murng Kerng township, was
allegedly forcibly relocated to a site on the main road north of Murng
Kerng going to Tsipaw. Half of the households had to provide one
person each for week-long shifts repairing the road to Tsipaw. A
total of about 600 persons from different villages worked on the site,
including old persons, women and children. Guards oversaw the work,
and allegedly beat a man who went to the toilet without having asked
for permission.
125. Another reason for forced displacement in the country is the
need to make way for a great number of government infrastructure
projects. In Yangon, Mandalay and other touristic cities such as
Pagan, a number of inhabitants have been forced to move because the
area where they lived would become a construction ground for a tourist
project such as a hotel or in connection with the building of roads
and other facilities. It was reported that the people displaced were
not given appropriate compensation and were forced to live in
satellite towns. It was reported that as part of a government project
to extend the Yangon-Mandalay highway, many buildings close to the
road have been torn down without compensation.
I. Forced labour
126. The Forced Labour Convention of 1930 (ILO Convention No. 29)
requires the suppression of the use of forced or compulsory labour in
all its forms. The Convention defines forced or compulsory labour as
"all work or service which is exacted from any person under the menace
of any penalty and for which the said person has not offered himself
voluntarily". The loss of rights and privileges falls under the
definition of penalty. Work of a purely military character is
exempted from the provisions of the Convention. This concerns
military service for the purpose of national defence, but not
compulsory obligation to execute public works. The Convention also
makes an exception for work or service required in genuine cases of
emergency and forming part of normal civic obligations of citizens in
a fully self-governing country. Another exception is prison labour.
Prison labour may, however, only be imposed as a consequence of a
conviction in a court of law and the person concerned shall be
supervised and controlled by public authorities, not placed at the
disposal of private individuals, companies and associations.
127. Although Myanmar had freely ratified ILO Convention No. 29 in
1955, the situation of forced labour in Myanmar has continued to
worsen. In 1995, the ILO Governing Body stated that the Myanmar
Village Act and the Towns Act were contrary to Convention No. 29 and
urged the Government of Myanmar to amend both acts in order to bring
them into line with the Convention, and to ensure that the formal
repeal of the powers to impose compulsory labour be followed up in
practice and that those who resort to coercion in the recruitment of
labour be punished. It is to be recalled that both acts provided "for
the exaction of labour and services, including porterage service,
under the menace of a penalty from residents who have not offered
themselves voluntarily".
128. The Government of Myanmar announced that the process of
amending the Village Act and the Towns Acts had started and that both
acts were under review. In this regard, a board had been formed to
monitor the progress made in reviewing the Village Act of 1908 and
Towns Act of 1907. The Special Rapporteur notes that ever since 1967,
the Myanmar Government has stated that the authorities no longer
exercise the powers under the Village Act and the Towns Act, these
being established under colonial rule, not corresponding to the
country's new social order and obsolete and soon to be repealed. But,
to date, both acts, which authorize forced labour under certain
conditions, have still not been repealed and are therefore still into
force.
129. The Special Rapporteur has noted that in June 1996, at the
eighty-third session of the International Labour Conference in Geneva,
the matter of forced labour in Myanmar had again been raised, for the
third time since 1992, before the Committee on the Application of
Standards. This year, after having taking note of the information
provided by the Government of Myanmar and the subsequent discussion,
the Committee was deeply concerned by the serious situation prevailing
in Myanmar over many years where systematically recourse was had to
forced labour. The Committee once again required the Government
formally to abolish and urgently cancel the legal provisions and to
abandon all practices that were contrary to the Convention. It urged
the Government to prescribe truly dissuasive sanctions against all
those having recourse to forced labour. The Committee hoped that the
Government would, without further delay, take all necessary measures
to abolish forced labour and to provide next year all necessary
detailed information on concrete measures taken or envisaged to
abolish in law and in practice the possibility of imposing compulsory
labour. Moreover, the Committee decided to mention this case in its
report as one of persistent failure to implement Convention No. 29
since, over a period of several years, there had been a serious and
continued discrepancy in law and practices.
130. The Myanmar authorities continue to deny the existence of the
practice of forced labour in the country. According to the
argumentation of the Government of Myanmar, the concept of forced
labour is not applicable to Myanmar, because the people of Myanmar are
voluntarily participating in labour for community development, such as
the construction of pagodas, monasteries, schools, bridges, roads,
railways. During the last visit of the former Special Rapporteur, he
was told in his meeting with Secretary One that "stories about forced
labour were not true, ... the people of Myanmar were of the Buddhist
faith and were willing to contribute voluntarily to the development
projects" (E/CN.4/1996/65, para. 30). The same argumentation was
confirmed to him by the Minister for National Planning and Economic
Development. However, during the same visit, Professor Yozo Yokota
received the text of two secret directives of SLORC which prohibit the
practice of labour without payment. Directive No. 82 from
27 April 1995 concerns irrigation projects, while Directive No. 125 of
2 June 1995 concerns national development projects (ibid., annexes II
and III).
131. The existence of such directives suggests implicitly that the
concept of voluntary contribution is not always valid since the people
involved for a specific project should, in accordance with these
directives, be remunerated for their contribution. Indeed, although
welcoming the introduction of payment for workers in irrigation and
development projects, the Special Rapporteur notes that if a person is
obliged to perform a certain job for which he has not offered himself
voluntarily, this constitutes forced labour, irrespective of whether
he receives any payment or not. Furthermore, the Special Rapporteur
notes that the content of neither directive constitutes abrogation of
any of the laws under the 1908 Village Act and the 1907 Towns Act.
The Special Rapporteur notes that almost two years after their
publication, these directives are still not public and therefore not
accessible to persons whose rights are designed to be protected and
who might be accused of breaking the law.
132. The Special Rapporteur continues to receive numerous reports
from a wide variety of sources indicating that the practice of forced
labour remains widespread in Myanmar. It has been alleged that
civilians are forced to contribute non-compensated labour to certain
large development projects. The projects concerned are said to
include the building of roads, railways, bridges and gas pipelines.
People living in villages near the various projects are said to be
frequently forced to contribute labour under the threat of reprisals
if they do not comply with the request. Numerous reports indicate
that there is an especially extensive use of forced labour in several
railway construction projects. Elderly persons, and sometimes
children, have reportedly been seen working along the railway.
According to reports received, the poor conditions at construction
sites have led to accidents and illness, sometimes causing the death
of several persons. The following are illustrative of reports which
have been received by the Special Rapporteur.
133. The people of Ahphyauk town in Ayeyarwaddy Division have been
made to work on an irrigation canal with a length of about 25 miles.
Those who refused were fined 1,300 kyats or, if they could not pay,
were prosecuted under section 12 of the Village Act and sentenced to
one month's imprisonment from July to August 1996.
134. U Win Maung, from Hinthada in Ayeyarwaddy Division, was asked
to contribute labour to build an embankment. Since he was too old, he
sent his 15-year-old son. The authorities refused to accept the son.
U Win Maung was thereupon taken to the police station, where he was
subjected to severe beatings. He was hospitalized from 17 to
24 March. On 5 April, he lodged a complaint against the Sub-Inspector
of Police, but no action was taken.
135. In May 1995, about 200 villagers were ordered by the township
military authorities to go to Heinze Island for two weeks, where they
cleared ground, constructed a helicopter pad, and built bamboo
barracks and a wooden guest house. The workers received no wages, and
were forced to pay for the petrol used in the boat which took them to
the island. Villagers who refused to go were fined or arrested and
sent to conflict areas to serve as porters for the military. Forced
labour shifts in the area used to occur once a year. Now they occur
three times a year and last much longer.
136. In August and September 1995, a Mon farmer from Ye Puy
township was allegedly forced to build army buildings near the
pipeline at On Bib Kwin and in Daik harbour. He was also repeatedly
brought in to cut trees and clear bushes for the road between periods
of forced portering.
137. The SLORC is building a two-floor museum for ancient Buddha
images and other ancient objects in the town of Sittwe with the help
of forced labour from the town. In autumn 1995, 200-300 persons per
day, including children and elderly persons, have been forced to work
on the building site, as well as children and elderly persons.
Everyone has to work at least three times a month from 8 a.m. to
6 p.m. No one is paid for the work. The soldiers have beaten and
kicked some workers badly.
rogr According to a visitor, in Bassein, Irrawaddy Division, the
Myanmar authorities wanted to exploit the beauty of Nga Saw beach
northwest of Bassein, 20 miles north of Chaung Tha beach. They
transferred a number of battalions there to prepare it for "Visit
Myanmar Year". The local villagers had to construct a new road from
Nga Saw to Thalat Kwa, close to Bassein, the height of which being
10-12 feet and the width at least 30 feet, and to clear the ground for
barracks and bungalows. The villagers were forced to pay for the fuel
and operating costs of the bulldozers. They received no pay and no
medical assistance when accidents occurred, and they had to bring
their own food and supplies to the construction site.
139. In March 1996, villagers were forced to go to the village of
Tu Kaw Koh to cut trees and carry timber to the sawmill in Kyet Paung
village. Some villagers also had to work at the sawmill. The planks
were then taken to a battalion headquarters, each village having to
provide a certain number of carts with bullocks. Villagers also had
to collect wood for the army brick factory, part of which was then
sold back to the villagers by the soldiers.
140. The phenomenon of forced recruitment of civilians for the
purpose of portering is reportedly still practised in Myanmar.
Conditions for porters are described as brutal, with forced marches
over mountains with heavy loads. According to the reports received,
porters could be divided into several categories, i.e., operations
porters, taken for the duration of a specific military operation;
permanent or shift porters, provided by villages on written Myanmar
Army orders: they work a set length of time and must be replaced by
their village; emergency porters, demanded from villages for special
tasks such as monthly rice delivery to troops; porters of opportunity -
often farmers met on the road and kept on in case they are needed;
punishment of civilians taken in urban or semi-urban areas as
reprisals for minor infractions; convict porters, taken from prisons
to frontline, and, paid porters, employed by more affluent villagers
to accompany the army in their stead. Porters are reported to have
been rounded up by the military at home, at work places and even at
schools to carry military material as well as supplies for the troops.
141. Porters are said to be ill-treated, given too little food and
no medical care if they are ill or wounded. Porters attempting to
escape are reportedly shot. Elderly persons, women and children have
reportedly also been used as porters. Numerous reports indicate that
the treatment of porters is brutal. The Special Rapporteur notes that
porters are reportedly civilians forced to do work of a civilian
nature, and porterage does not therefore fall under the exception for
work of a military character mentioned in article 2(2)(a) of the 1930
Convention. The conditions of porterage in Myanmar can neither be
considered "part of the normal civic obligations of the citizens of a
fully self-governing country" that would qualify for exemption under
article 2(2)(b) of the Convention.
142. In a letter addressed to the Assistant Secretary-General for
Human Rights, on 13 February 1995 (E/CN.4/1995/148), the Myanmar
Ambassador, Maung Aye, explained that porters are recruited only on
certain conditions. According to section 8(1)(n) of the Village Act
and section 7(1)(m) of the Towns Act, they must be unemployed,
physically fit to work as porters and a reasonable amount of wages
must be fixed and agreed to beforehand. The Government has further
stated that they are equitably compensated in the event of injury.
There are, however, several reports to suggest large-scale non-respect
of even these criteria in practice.
143. On 10 December 1995 a group of soldiers reportedly arrived at
Meh Bleh Wah Kee in the Day Law Pya area, arrested the 10 persons who
did not flee, including at least one woman, in the fields where they
were working. They were reportedly forced to carry very heavy army
equipment across the Dawna mountains to Ber Kho on the other side.
The trip took two days, during which they were followed by a village
elder from Meh Bleh Wah Kee. On 13 December 1995, they were released
and able to return with the village elder.
144. A Mon rubber planter was reportedly caught by a SLORC soldier
in January 1996 and tied up with a rope. He was forced to carry army
material such as guns and bullets for 17 days before he was able to
run away.
145. In March 1996, a Mon fisherman from Taung Kun village in Ye
township was allegedly forced to serve as a porter for the army.
First, the village headman reportedly asked him to pay porter fees to
SLORC in lieu of portering, but he did not even have enough food to
eat at home and could not pay. SLORC soldiers coming to the village
thereupon kicked him in the back with army boots until he coughed
blood, and arrested him. He was serving as a porter for 15 days, but
then fled together with other men. The soldiers returned to the
village to question the women about where the men were, and reportedly
beat them.
V. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
146. The Special Rapporteur regrets that his efforts to obtain the
cooperation of the Government of Myanmar and to visit the country have
so far failed. Nevertheless, he is confident that much of the
evidence brought to his attention speaks for itself in the light of
the laws of Myanmar received by the Centre for Human Rights.
147. The Special Rapporteur observes that the absence of respect
for the rights pertaining to democratic governance is at the root of
all the major violations of human rights in Myanmar insofar as this
absence implies a structure of power which is autocratic and
accountable only to itself, thus inherently resting on the denial and
repression of fundamental rights. The Special Rapporteur concludes
that genuine and enduring improvements in the situation of human
rights in Myanmar may not be attained without respect for the rights
pertaining to democratic governance. In this regard, he notes with
particular concern that the electoral process initiated in Myanmar by
the general elections of 27 May 1990 has still not yet reached its
conclusion and that the Government still has not implemented its
commitments to take all necessary steps towards the establishment of
democracy in the light of those elections.
148. Government representatives have repeatedly explained that the
Government is willing to transfer power to a civilian government but
that, in order to do so, there must be a strong constitution and that,
in order to have a strong constitution, they are doing their best to
complete the work of the National Convention. However, the Special
Rapporteur cannot help but observe that, given the fact that most of
the representatives democratically elected in 1990 have been excluded
from participating in the meetings of the National Convention, the
restrictions imposed upon the delegates (practically no freedom to
assemble, print and distribute leaflets or to make statements freely),
and the general guidelines to be strictly followed (including the
principle regarding the leading role of the Tatmadaw), the National
Convention does not constitute the necessary "steps towards the
restoration for democracy, fully respecting the will of the people as
expressed in the democratic elections held in 1990".
149. Detailed reports and photographs seen by the Special
Rapporteur lead him to conclude that extrajudicial, summary or
arbitrary executions, the practice of torture, portering and forced
labour continue to occur in Myanmar, particularly in the context of
development programmes and of counter-insurgency operations in
minority-dominated regions.
150. With regard to allegations of arbitrary arrest and detention,
the Special Rapporteur does not doubt that such violations take place
on a wide scale if for no other reason than an examination of the laws
in place which show that such violations are legalized and may easily
occur. At the same time, the absence of an independent judiciary,
coupled with a host of executive orders criminalizing far too many
aspects of normal civilian conduct, prescribing enormously
disproportionate penalties and authorizing arrest and detention
without judicial review or any other form of judicial authorization,
leads the Special Rapporteur to conclude that a significant percentage
of all arrests and detentions in Myanmar are arbitrary when measured
by generally accepted international standards. In this regard, the
Special Rapporteur expresses his deep concern at the continued
detention of many political prisoners, in particular elected
representatives, and the recent arrests and harassment of other
supporters of democratic groups in Myanmar, culminating at the end of
September 1996 in the massive arrests of NLD supporters and the
virtual blockade of the Secretary General of NLD in her compound.
151. On the basis of virtually unanimous reports and other
information, the Special Rapporteur concludes that there is
essentially no freedom of thought, opinion, expression or association
in Myanmar. The absolute power of SLORC is exercised to silence
opposition and penalize those holding dissenting views or beliefs.
Because of both visible and invisible pressures, the people live in a
climate of fear that whatever they or their family members may say or
do, particularly in the area of politics, involves the risk of arrest
and interrogation by the police or military intelligence. The Special
Rapporteur notes that NLD leaders cannot assemble in a group, cannot
freely discuss, and cannot publish or distribute printed material. In
this situation it is difficult to assume that open discussion and free
exchanges of views and opinions can possibly take place in Myanmar,
unless they are in support of the present military regime.
152. Turning to freedom of movement and residence in Myanmar,
including the right to leave and re-enter one's own country, the
Special Rapporteur concludes that there are clear violations of these
freedoms found in Myanmar law and practice themselves. Specifically,
severe, unreasonable and, in the case of the Muslim Rakhine
population, racially based restrictions are placed on travel inside
the country and abroad. On the matter of internal deportations and
forced relocations, the Special Rapporteur concludes that the
Government's policy violates freedom of movement and residence and, in
some cases, constitutes discriminatory practices based on ethnic
considerations.
B. Recommendations
153. In the light of the foregoing conclusions, the Special
Rapporteur submits the following recommendations for the consideration
of the Government of Myanmar:
(1) The Government of Myanmar is urged to fulfil in good faith
the obligations it has assumed under Articles 55 and 56 of the
Charter of the United Nations "to take joint and separate action
in cooperation with the Organization for the achievement of ...
universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language and religion". In this respect, the Special Rapporteur
would wish to note that the Government of Myanmar should encourage
the adoption, as one of the basic constitutional principles, of
the provisions of the Universal Declaration of Human Rights, a
copy of which should be made widely available in the Burmese
language.
(2) The Government of Myanmar should further consider accession
to the International Covenants on Human Rights, the Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, and the two protocols additional to the Geneva
Conventions of 1949.
(3) Myanmar law should be brought into line with accepted
international standards regarding protection of physical integrity
rights, including the right to life, protection against
disappearance, prohibition of torture, cruel, inhuman or degrading
treatment, providing humane conditions for all persons under
detention and insurance of the minimum standards of judicial
guarantees.
(4) In the interest of ensuring that the Government of Myanmar
genuinely reflects the will of the people, steps should be taken
to allow all citizens to participate freely in the political
process, in accordance with the principles of the Universal
Declaration of Human Rights, and to accelerate the process of
transition to democracy, in particular through the transfer of
power to the democratically elected representatives. The
institutions of government should benefit from a separation of
powers as to render the executive accountable to the citizenry in
a clear and meaningful way and, furthermore, steps should also be
taken to restore the independence of the Judiciary and to subject
the Executive to the rule of law and render executive action
justiciable.
(5) The Government of Myanmar is urged to take all necessary
measures to accelerate the process of transition to democracy and
to involve in a meaningful way in that process the representatives
duly elected in 1990. In this regard, the Government of Myanmar
should without delay begin a process of genuine and substantive
dialogue with the leaders of the National League for Democracy and
with other political leaders who were duly elected in the
democratic elections of 1990, including representatives of the
ethnic minorities.
(6) The Government of Myanmar should also take all necessary
measures to guarantee and ensure that all political parties may
freely exercise their activities without restrictions.
(7) All political detainees, including elected political
representatives, students, workers, peasants and others arrested
or detained under martial law after the 1988 and 1990
demonstrations, or as a result of the National Convention, should
be tried by a properly constituted and independent civilian court
in open judicial proceedings and in accordance with all the
guarantees of fair trial and due process in conformity with
applicable international norms. If found guilty in such judicial
proceedings, they should be given a just sentence proportionate to
their offence. Otherwise, they should be immediately released
with the responsibility of the Government to refrain from all acts
of intimidation, threats or reprisal against them or their
families and to take appropriate measures to compensate all those
who have suffered arbitrary arrest or detention.
(8) The Government of Myanmar should ensure that all laws
rendering violations of human rights legitimate are urgently
repealed, that laws are given due publicity and that the principle
of non-retroactivity of penal laws is respected.
(9) The Government of Myanmar should give particular attention to
prison conditions in the country's prisons and take all the
necessary steps to allow international humanitarian organizations
to have access thereto and to communicate freely and
confidentially with prisoners.
(10) The Government of Myanmar should take steps to facilitate
and guarantee the enjoyment of the freedoms of opinion, expression
and association, in particular by decriminalizing the expression
of oppositional views, relinquishing government controls over the
media and literary and artistic works.
(11) The Government of Myanmar should remove all restrictions
relating to the entry and exit of citizens into and out of the
country, as well as their movement within the country.
(12) The Government of Myanmar should cease all discriminatory
policies which interfere with the free and equal enjoyment of
property, and compensate appropriately those who have been
arbitrarily or unjustly deprived of their property.
(13) The Government of Myanmar should fulfil its obligations
under International Labour Organization Convention (ILO) No. 87
concerning Freedom of Association and Protection of the Right to
Organize of 1948. In that respect, the Government of Myanmar is
encouraged to cooperate more closely with ILO through a technical
cooperation programme so that the very serious discrepancies
between the law and the practice on the one hand, and the
Convention, on the other hand, are urgently eliminated.
(14) The Government of Myanmar is urged to comply with its
obligations under ILO Convention No. 29, prohibiting the practice
of forced labour and forced portering. In this connection, the
Government of Myanmar should urgently take the appropriate
measures to repeal the offending legal provisions under the
Village Act and the Towns Act to prevent the continuation of the
practice of forced labour. The Government of Myanmar is
encouraged to cooperate with ILO to that end.
(15) The Government of Myanmar should take the necessary steps to
bring the acts of soldiers, including privates and officers, in
line with accepted international human rights and humanitarian
standards so as to prevent arbitrary killings, rapes, and
confiscation of property, or forcing persons into acts of labour,
portering, relocation or otherwise treating persons without
respect to their dignity as human beings. When local villagers
are hired for porterage and other works, adequate wages should be
paid. The nature of the work should be reasonable and in
accordance with established international labour standards. When
the relocation of villages is considered necessary for military
operations or for development projects in the public interest,
proper consultation with the villagers should take place and
appropriate compensation should be paid for those relocations; the
extent of the compensation should be reviewable by independent
courts.
(16) Military and law enforcement personnel, including prison
guards, should be thoroughly informed and trained as to their
responsibilities towards all persons in full accord with in
international human rights norms and humanitarian law. Such
standards should be incorporated in Myanmar law, including the new
constitution to be drafted.
(17) Given the magnitude of the abuses, the Government should
subject all officials committing human rights abuses and
violations to strict disciplinary control and punishment and put
an end to the culture of impunity that prevails at present in the
public and military sectors.
ANNEX
Extracts from:
"The State Law and Order Restoration Council Declaration
(Declaration No. 1/90)
The Sixth Waxing Day of Wagaung, 1352 ME
(27 July 1990)
...
12. Section 3 of the Pyithu Hluttaw Election Law provides that 'The
Hluttaw shall be constituted with the representatives elected from the
constituencies in accordance with this law'. The State Law and Order
Restoration Council will take measures for summoning the Hluttaw in
accordance with this provision. The Information Committee has from
time to time explained that the Multi-Party Democracy General Election
Commission, the parties which won seats in the election and the
elected representatives should carry out measures which should be
carried out in accordance with the law and rules.
15. There will be no necessity to clarify the fact that a political
party cannot automatically get the three aspects of State Power - the
legislative power, the executive power and the judicial power - just
because a Pyithu Hluttaw has come into being and that they can only be
obtained on the basis of a constitution ...
18. It can be seen from the statements issued that the desire of the
majority of the political parties which contested in the Multi-Party
Democracy General Elections is to draw up a new constitution. It will
be seen that when the Constitution of 1947 was drawn up, matters
concerning the national races were discussed only with the Shan,
Kachin and Chin nationals at the Panglong Conference and that they
were not discussed with the Mon and Rakhine nationals. Today, in
Myanmar Naing-Ngan there are many national races who have awakened
politically and it is obvious that it is especially necessary to draw
up a firm constitution after soliciting their wishes and views.
19. As the State Law and Order Restoration Council is a military
government, it exercises martial law. As such it exercises the
following three aspects of State Power in governing Myanmar Naing-
Ngan:
(a) Legislative power: only the State Law and Order Restoration
Council has the right to exercise it.
(b) Executive power: The State Law and Order Restoration Council
has the right to exercise it, however it has delegated this power to
the Government, State/Division, Township Zone, Township and
Ward/Village-tract Law and Order Restoration councils at different
levels and has caused administrative work to be carried out through
collective leadership. This is a form of giving training to the
service personnel so that they will be able to perform, by keeping
themselves free from party politics, their departmental work under the
government that will come into being according to the constitution.
(c) Judicial power: The State Law and Order Restoration Council
has the right to exercise it. However, the Government has formed
courts at different levels to adjudicate on ordinary criminal and
civil cases so that they will have practical training when a
constitution comes into being.
20. Consequently, under the present circumstances, the representatives
elected by the people are those who have the responsibility to draw up
the constitution of the future democratic State.
21. It is hereby declared that the State Law and Order Restoration
Council will in no way accept the drawing up of a temporary
constitution for forming a government to take over State Power and
that it will take effective action if it is done so, and that in the
interim period before a government is formed in accordance with a new
firm constitution drawn up according to the desires and aspirations of
the people, the State Law and Order Restoration Council (Tatmadaw)
will defend and safeguard:
(a) The three main causes - such as the non-disintegration of the
Union, non-disintegration of national solidary and ensuring perpetuity
of the sovereignty;
(b) Of the four main tasks mentioned in the State Law and Order
Restoration Declaration No. 1/88 such as the prevalence of law and
order, the rule of law, regional peace and tranquillity, ensuring safe
and smooth transportation and communication, easing the food, clothing
and shelter problems of the people and holding Multi-Party Democracy
General Election, the first three main tasks (with the exception of
the task of holding Multi-Party Democracy General Election);
(c) The task of bringing about the development of all the
national races of Myanmar Naing-Ngan.
By order,
Sd. Khin Nyunt
Secretary - 1
The State Law and Order Restoration Council"
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.