31/71 Report of the Special Rapporteur on the situation of human rights in Myanmar

Human Rights Council

Thirty-first session

Agenda item 4

Human rights situation that require the Council’s attention

Report of the Special Rapporteur on the situation of human rights in Myanmar*, **

Summary

Four years of wide-ranging reforms have brought fundamental changes to Myanmar.

In November 2015, historic general elections were held, and a new Government will

shortly be formed. Nonetheless, formidable human rights challenges remain. In the present

report, the Special Rapporteur builds on previous reports to identify key priority areas that

should be tackled by the new administration.

* The present report was submitted after the deadline in order to reflect the most recent developments.

** The annex to the present report is reproduced as received, in the language of submission only.

I. Introduction

1. In the present report, submitted to the Human Rights Council pursuant to its

resolution 28/23, the Special Rapporteur on the situation of human rights in Myanmar,

Yanghee Lee, examines the developments in Myanmar since her reports to the Council, in

March 2015 (A/HRC/28/72) and to the General Assembly, in October 2015 (A/70/412).

Building on these and other past reports, the Special Rapporteur identifies key priority areas

for the new Government in addressing prevailing human rights concerns.

2. Four years of wide-ranging reforms have brought fundamental changes to Myanmar.

During that time, thousands of political prisoners were released, numerous laws were

adopted or reformed, and significant steps were taken towards allowing greater media

freedom and government transparency. The general elections held in November 2015,

which were assessed positively by both national and international observers (despite some

irregularities and pre-election concerns), saw the National League for Democracy (NLD)

win an absolute majority.

3. The new Government will now face formidable human rights challenges. The

transition period following the elections has been smooth and peaceful, but also one of

great uncertainty. Allegations of human rights violations continue to be reported, including

arrests and prosecutions of civil society actors for peaceful and democratic activities. At

this important juncture, the Government should not only further the reforms initiated by

outgoing President Thein Sein, but also create an environment in which communities, civil

society actors and human rights defenders may speak out and protest peacefully without

fear of reprisal. The international community should remain engaged and support Myanmar

in furthering reforms and in fulfilling its international human rights obligations.

4. Owing to personal circumstances, the Special Rapporteur was unable to conduct her

fourth official visit to Myanmar. She thanks the Government for its cooperation and

flexibility in these circumstances, including its readiness to respond in writing to questions

submitted by the Special Rapporteur. In the preparation of the present report, conference

calls were conducted with national and international stakeholders and information was

collected from a wide range of sources.

II. Elections of 8 November 2015

5. On 8 November 2015, Myanmar voted in historic general elections, which were

welcomed by the Secretary-General as “a significant achievement in Myanmar’s

democratic transition”. The more than 12,000 international and national observers

concluded that the polls had been generally well organized, orderly and peaceful.1 Turnout

was estimated at 70 per cent, with thousands casting their votes for the first time. In the

elections for the Upper House of the Union Parliament, the NLD won 135 seats, the Union

and Solidarity and Development Party (USDP), 11 and other parties, 22. In the Lower

House, the NLD won 255 seats, the USDP, 30 and other parties, 38. Elections were

postponed in around 600 village tracts, mainly in Kachin and Shan States, due to security

concerns.

1 See Carter Centre, “Carter Center Congratulates Myanmar People on Election, Urges Key Democratic

Reforms”, press release, 10 November 2015, and European Union Election Observers Mission, “A

well-run, competitive election with legal reforms and procedural improvements remaining”, press

release, 10 November 2015.

6. The Special Rapporteur publicly welcomed the elections as a new chapter in the

country’s history. She recalled, however, that pre-election human rights concerns were

symptomatic of broader human rights challenges requiring the urgent attention of the new

Parliament and Government. They include the disenfranchisement of hundreds of thousands

of people, including from minority communities; the disqualification of many Muslim

candidates; and continuing restrictions in the exercise of the rights to freedom of

expression, peaceful assembly and association.

7. Following the announcement of the election results, President Thein Sein

congratulated Daw Aung San Suu Kyi and affirmed his commitment to an orderly and

peaceful transfer of power. The Commander-in-Chief of the armed forces also reiterated

past pledges to respect the election outcome. On 18 January 2016, the Union Election

Commission announced the names of the military representatives who would occupy the 25

per cent of parliamentary seats reserved for them. The last session of the outgoing

Parliament concluded on 28 January. The new Parliament, which includes more than 100

former political prisoners, convened its first session on 1 February. The new Government is

expected to take up its functions on 31 March 2016.

III. Situation of human rights

A. Rule of law and democratic space

1. Legislative reform

8. The Special Rapporteur welcomes the legislative reforms carried out since 2011 and

the steps taken by the Government to review and amend some laws that do not meet

international human rights standards.2 She was informed that the Parliament had passed

more than 220 laws during this period. As noted in past reports, however, some of these

laws and older laws still in force do not comply with international standards and should be

amended as a priority (see annex for a non-exhaustive list).

9. With the arrival of a new Government and Parliament backed by a strong mandate,

Myanmar has the opportunity to transform its domestic legislation. The Special Rapporteur

therefore recommends the development of a comprehensive programme of legislative

reform to ensure compliance with international human rights norms and provide protection

for the rights of the entire population. Involving civil society in this process, strengthening

the independence of the judiciary and improving access to justice will be vital. In this way,

Myanmar can strengthen the rule of law and build confidence in national institutions.

10. In June 2015, five proposed amendments to the Constitution of 2008 were submitted

to Parliament, but ultimately rejected. They included a proposed change to article 436,

lowering from 75 to 70 per cent the proportion of parliamentarians required to approve a

constitutional amendment, and to article 59 (f) on the ineligibility for presidential office of

those with spouses and children of foreign nationality. Only an amendment to article 59 (d)

– replacing the word “military” with “defence” among the required areas of knowledge for

presidential candidates – was adopted. A positive outcome of a referendum on the

amendment is required before it can enter into force. The Special Rapporteur has previously

highlighted the need to reform constitutional provisions that do not comply with

international standards (see A/HRC/28/72, para. 25, A/69/398, paras. 63-67 and A/70/412,

2 For example the Wireless Telegraphy Act (1934), the Printer and Published Registration Act (1962)

and the Law Relating to the Forming of Organizations (1988).

para. 68). She also believes that the effective operation of the rule of law in Myanmar will

require amendment of the Constitution of 2008. While aware that discussions on

constitutional reform continue to be politically sensitive, this is of vital importance for a

democratic Myanmar; she therefore encourages all political parties and stakeholders to

continue their dialogue to this end.

11. The current legislative process should be reviewed as a priority. The lack of

systematic public consultation on draft laws and the involvement of civil society have

resulted in laws that do not meet the needs of the people and that fall below international

standards. The Special Rapporteur therefore calls upon the new Government to take

measures to improve the legislative process and to adopt procedures that guarantee

transparency and the systematic engagement of civil society and the general public in law-

making. The Special Rapporteur welcomes the adoption by the Office of the Attorney

General of the Strategic Plan (2015-2019), which includes important commitments to draft

and vet laws that serve to protect human rights and to uphold prosecutorial ethics. She

encourages continued cooperation with the international community to ensure full

implementation of the plan.

12. The Special Rapporteur is concerned by the adoption, on 29 January 2016 (the last

day of the previous Parliament), of the Former Presidents’ Security Law. The law, which

grants immunity for undefined “measures” taken during office “in accordance with the

laws”, could potentially grant immunity for grave violations of human rights, in

contravention of international law.

13. The draft prison law, which remains pending, falls below international standards in

several areas (see A/70/412, para.74). The Special Rapporteur recommends that the

provisions on the use of force by prison superintendents be amended, and that provisions

mandating independent monitoring of prison conditions be included; that clear limitations

on the use of solitary confinement be introduced; and that fettering as a means of restraint

be prohibited.

14. The draft child law is currently before the Office of the Attorney General for review.

The Special Rapporteur welcomes the engagement with civil society in its development, as

well as the provisions that would increase the State’s compliance with the Convention on

the Rights of the Child, including those on the recruitment of children in the armed forces

and on the minimum age of criminal responsibility. This important legislation should be

adopted by Parliament without delay.

15. An independent judiciary capable of enforcing legislation fairly and consistently is

necessary for the viability of the rule of law. Although the separation of powers and the

independence of the judiciary in Myanmar are guaranteed by the Constitution of 2008, they

are undermined by the control currently exercised by the executive over the judiciary.

Moreover, the Special Rapporteur notes that the training of individuals holding judicial

positions is inadequate. There is also widespread evidence of judicial corruption. In a report

issued in December 2015, the Judicial and Legal Affairs Complaints and Grievances

Investigation Committee found that the judiciary remained one of the country’s most

corrupt institutions. It confirmed the existence of a chain of bribery with judges at different

levels taking instructions from their superiors.

16. In the light of the above, the Special Rapporteur welcomes the continued efforts

made to strengthen the judiciary, including the adoption of the Strategic Plan (2015-2017)

by the Supreme Court. Further steps are, however, necessary to guarantee the independence

of the judiciary, such as measures to reform the judicial appointment process, in accordance

with article 10 of the Basic Principles on the Independence of the Judiciary, including by

creating a judicial appointments committee; increasing the salaries and pensions for judges

to make them commensurate with the status and responsibility of their office; creating a

specialized, independent body to investigate allegations of judicial corruption; and

improving continuing education and training for the judiciary.

17. An independent legal profession is also necessary to facilitate access to justice and

to ensure that rights are fully upheld, including respect for the right to defence. Positive

developments have been witnessed in recent years, including the creation of a unified

professional lawyers association. It is hoped that the association will act as an effective and

independent professional body representing lawyers’ interests. Nevertheless, the Special

Rapporteur remains concerned by the broad powers of the executive and the judiciary to

suspend lawyers’ practicing licences. For example, on 15 September 2015, Khin Khin

Kyaw, a defence lawyer representing the protestors arrested in Letpadan, was charged by

the presiding judge under section 228 of the Penal Code (“intentionally insulting or

interrupting a public servant in judicial proceedings”) – when detainees voiced their

disapproval in the court room after Khin Khin Kyaw informed them that the judge had

rejected her application to amend the court record – and now faces the prospect of six

months of imprisonment and disbarment. The Bar Council will also need to be reformed in

order to ensure that complaints against lawyers are handled by an independent and impartial

tribunal, in compliance with due process.

2. Democratic space

18. Since 2011, democratic space has been opening up in Myanmar, as reflected in

greater media and Internet freedom, newfound political freedoms, increased political and

social activism, and an increase in the number of civil society actors and trade unions.

Challenges nonetheless remain, and certain negative trends, which the Special Rapporteur

has previously highlighted, continue to raise concern. They include ongoing restrictions on

the exercise of the rights to the freedoms of expression, association and assembly, the arrest

of individuals in relation to the exercise of these rights, and the increasing intimidation,

monitoring and surveillance of human rights defenders.

19. The Special Rapporteur remains concerned about the continuing application of

problematic legal provisions (both historic and recently enacted) leading to the arrest,

prosecution and conviction of civil society actors, journalists and human rights defenders.

In this regard, she once again draws special attention to section 18 of the Peaceful

Assembly and Peaceful Procession Law (2011) (as amended in 2014), sections 143, 145,

146, 147, 500 and 505(b) of the Penal Code, section 17(1) of the Unlawful Associations

Act, the Official Secrets Act, the Emergency Provisions Act, and section 66(d) of the

Telecommunications Act. The Special Rapporteur reminds the Government that detention

under such laws, which are incompatible with international human rights standards, could

give rise to its qualification as arbitrary (see A/HRC/22/44, para. 65). As long as these and

other laws that have been used in the past to silence critics remain in force, there will

always be a risk of perpetuating political imprisonment.

20. The Special Rapporteur is also particularly concerned by the practice of bringing

multiple charges against individuals in different townships for the same offence. Often,

additional charges are brought against those already in detention, resulting in some

individuals being forced to undergo multiple trials concurrently; for example, Phyoe Phyoe

Aung, a student protestor, faces multiples charges for her involvement in the demonstration

against the National Education Law in Letpadan in March 2015. She is regularly brought

before different township courts to face several trials, with no clear end in sight.

21. In other cases, charges for past offences for which no action was taken at the time

are suddenly brought forward; for example, Mee Mee, Nilar Thein, and Thet Thet Aung,

three women from the organization 88 Generation, were charged in February 2016 under

section 18 of the Peaceful Assembly and Peaceful Procession Law for their involvement in

demonstrations held in 2014 and 2015. In December 2015, Su Su Nway was arrested again

and charged, together with eight farmers, under section 18 of the Peaceful Assembly and

Peaceful Procession Law for a protest held in 2014 against land confiscations.

22. The above developments seem to reflect a trend whereby the system continues to

restrict the rights of individuals exercising fundamental freedoms and to stifle dissent,

which in turn generates fear and uncertainty and deters political and social activism. The

Special Rapporteur therefore encourages the Government to reconsider its response to

critical and independent voices. Civil society and human rights defenders play a vital role in

democratic societies. The Government should create an enabling environment for these

actors to conduct their activities without fear of reprisal.

23. The Special Rapporteur is concerned similarly by reports that journalists and media

workers continue to face legal action under legislation that is incompatible with

international human rights law. There are also increasing reports of government and

military interference in the rights of individuals to freedom of expression online. In this

regard, she notes with concern the convictions of Patrick Kum Jaa Lee and Chaw Sandi

Tun, who were both sentenced to six months of imprisonment, under section 66 (d) of the

Telecommunications Act 2014, for Facebook posts deemed defamatory to the Commander-

in-Chief. The Special Rapporteur calls upon the Government to repeal all provisions that

provide for criminal sanctions for defamation.

24. The Special Rapporteur notes the Government’s efforts to update media-related

legislation, including the adoption of the News Media Law (2014), the Printing and

Publishing Enterprise Law (2014) and the Law Concerning Television and Radio

Broadcasting (2015). While many of these laws improve on the previous framework, they

also contain problematic provisions (see A/HRC/28/72, paras. 6 and 7). In addition, the

enactment of these laws without repeal of earlier provisions has created a complicated

media law framework. Concern about harassment, a lack of clarity in the application of

regulatory laws and physical attacks on journalists have resulted in fear and self-censorship

in the media, which hampers the functioning of an independent press in Myanmar. The

appointment of the first media council in October 2015 is a positive development. The

Special Rapporteur hopes that it will be a strong and independent professional body

providing guidance to the media. She is also encouraged by the statement made on 24

January 2016 by the Commander-in-Chief, in which he recognized the indispensable role

played by the media during this time of nation-building.

25. The Special Rapporteur is concerned that civil society actors continue to report

being monitored by military intelligence and the Special Branch Police, such as being

followed and photographed at meetings, and their families, friends and colleagues being

questioned on their whereabouts. Special Branch informers reportedly engage in online

monitoring, including by hacking social media accounts and intercepting e-mail

communications. Under sections 76 and 77 of the Telecommunications Law 2013, the

Government has broad powers to enter and inspect telecommunication services for matters

relating to national defence and security or public interest, and to intercept data in an

emergency situation. The Government has yet to draft legislation on the interception of

communications by law enforcement bodies.

26. Procedural failings for individuals in detention, such as the length of pretrial

detention and the denial of bail, including for those with chronic or serious health

conditions, remain issues of concern. Of the 127 individuals arrested in relation to the

protests held against the National Education Law in Letpadan in March 2015, 53 remain in

Tharyawaddy prison and are still on trial one year after their initial arrest. Some 23

reportedly received no treatment for injuries resulting from police action at the time of their

arrest, and 24 reportedly developed medical conditions in prison due to inadequate nutrition

and unsanitary cells. A total of 18 on a hunger strike were transferred to Yangon Hospital

for specialist treatment on 1 December 2015. The Special Rapporteur notes the statement

issued by the Ministry of Home Affairs that all detainees are now in good health and its

reference to section 884 of the Prison Manual Act requiring that treatment be provided by

medical teams in prisons. She reminds the Government that prisoners must have access to

adequate health care and be housed in sanitary conditions, in accordance with the Standard

Minimum Rules for the Treatment of Prisoners and principle 9 of the Basic Principles for

the Treatment of Prisoners.

27. The Special Rapporteur is particularly concerned by the arrest of Gambira (Nyi Nyi

Lwin) on 19 January 2016. According to the Government, he was charged under section 13

(1) of the Immigration (Emergency Provisions) Act (1947) for having allegedly entered

Myanmar illegally. Gambira reportedly suffers from serious mental health issues resulting

from six years in detention following his involvement in anti-government protests in 2007.

Despite the fact that his psychological well-being is likely to be severely affected by

continued detention, he was repeatedly denied bail in recent hearings. The Special

Rapporteur reminds the Government that pretrial detention should be considered a measure

of last resort only. 3 She also calls upon the relevant courts to grant bail to all those in

detention suffering from serious health conditions, in particular when there is evidence that

the detention itself is worsening those conditions.

28. Two presidential amnesties resulted in the release of 6,966 prisoners, on 31 July

2015, and 102 prisoners on 22 January 2016; 55 human rights defenders and political

prisoners were among those released. Civil society sources estimate, however, that 84

political prisoners remain in prison, while more than 400 are detained pending trial.4 Such

figures clearly indicate that the process of reform and democratic transition has yet to be

completed. The Special Rapporteur urges President Thein Sein to use his remaining weeks

in office to release, immediately and unconditionally, all political prisoners. The majority of

political prisoners released in recent years have received a presidential commutation of

their sentence under section 401 of the Criminal Procedure Code. Section 401 (3) affords

the President broad powers to return individuals to prison if a condition of their release is

not satisfied. A release under section 401 also offers no provisions for review of the

original detention and conviction. Consequently, many former political prisoners are

classified as ex-criminals on their release, which makes their subsequent access to work or

education opportunities difficult. For example, three student protestors from Yadanabon

University were released on 22 December 2015 only to find that they had been suspended

and faced expulsion.

B. Incitement to hatred and discrimination

29. The Special Rapporteur has previously stated that protection of the right to freedom

of expression must be accompanied by efforts to combat intolerance, discrimination and

incitement to hatred. In this regard, she welcomes the statement made by President Thein

Sein in January 2016 to the participants in the World Buddhist Peace Conference, urging

religious and political leaders around the world to join hands and to teach their followers to

practice the “middle way” and “to avoid extremism”. She nonetheless remains concerned

about reports of incitement to hatred against minorities, including the Muslim population,

which may fuel discriminatory sentiment and divisions. The Secretary-General, on 1

November 2015, expressed similar concern at the continuous resort to hate speech and the

incitement of communal animosities resorted to by extreme elements among the majority

community in Myanmar.

3 United Nations Standard Minimum Rules for Non-custodial Measures, rule 6.

4 Figures provided by the Assistance Association for Political Prisoners (Burma).

30. On 30 January 2016, a radical monk posted a video on Facebook depicting a graphic

recreation of the rape and murder of a Buddhist woman in Rakhine State in 2012, an

incident viewed by many as having triggered the violence witnessed that year. A longer

video may be released in the near future. Although the video was later removed by

Facebook, the Special Rapporteur is troubled by this new act of incitement against the

Muslim community and the absolute silence of the Government in this regard.

31. The Special Rapporteur also remains concerned by the extreme measures called for

by radical Buddhist groups, such as the Ma Ba Tha, in the name of “protecting race and

religion”. While attacks and threats are mainly directed against Muslim communities, they

also often target anyone offering a different perspective or speaking for non-discrimination.

Human rights defenders and other civil society actors calling for interfaith harmony or

supporting the rights of minorities have been threatened and harassed.

32. Greater efforts should be made to publicly condemn, prevent and combat acts of

incitement to discrimination, hostility and violence. Serious and extreme instances of

incitement to hatred, which cross a clearly defined multi-step threshold (see A/70/412, para.

32), should be criminalized. For other cases, civil laws providing for diverse procedural and

substantive remedies should be adopted. Any measures taken should not, however, impose

additional restrictions on the rights to freedom of expression, assembly and association.

Underlying root causes should also be addressed, including through a comprehensive series

of preventive, education and awareness-raising measures. In this regard, the Special

Rapporteur welcomes and encourages further interfaith activities aimed at promoting

intercommunal harmony and building a more tolerant, diverse and inclusive society.

33. The Special Rapporteur remains concerned at the package of four “race and

religion” laws adopted in 2015. Since they were first proposed in November 2014, she and

other special procedure mandate holders have repeatedly drawn attention to the

discriminatory impact of these laws, particularly on minorities and women, and their lack of

compliance with the State’s human rights obligations. She renews her call for their revision

or repeal.

34. As highlighted previously by the Special Rapporteur and previous mandate holders,

it is crucial that the discriminatory Citizenship Law (1982) also be brought into line with

international standards. In particular, provisions that provide for the granting of citizenship

on the basis of ethnicity or race, which are clearly discriminatory, should be revised.

35. On 31 March 2015, all temporary registration cards, the main identification

document held by Rohingya and by persons of Chinese or Indian descent, expired. On 2

June, the Government announced that those who had submitted their card by the deadline

(around 469,000 people) were eligible to apply for new identity cards (referred to as “cards

for those whose nationality will be scrutinized”). To date, the degree of acceptance of the

new cards by the affected population has been low, mainly owing to a lack of trust in the

process. Consequently, most Rohingya and other non-citizen minorities are now without

any valid identity document, thus increasing their vulnerability. For many, the only current

evidence of legal residence in Myanmar is the compulsory household list.

C. Rakhine State

36. The need to address the deeply entrenched human rights issues in Rakhine State

represents a significant challenge for the new Government, but also a major opportunity to

break away from the tragic status quo. Innovative approaches could rapidly bring about

positive change, which could in turn contribute to the broader objective of strengthening the

rule of law and national reconciliation across Myanmar.

37. In recent years, significant national and international attention has been drawn to the

situation in Rakhine State. Little attempt has been made, however, to address structurally

the serious human rights concerns on the ground. Rakhine is the second poorest State in

Myanmar, and faces long-standing social and economic development challenges that affect

all communities. Challenges include malnutrition, low-income poverty and weak

infrastructure, compounded by natural hazards.5 Almost four years after the first outbreak

of violence in 2012, there are still some 140,000 internally displaced persons in Rakhine

State, the majority of whom are Muslim. It is crucial that human rights be placed at the

centre of all humanitarian and development responses if sustainable peace and

reconciliation are to be achieved.

38. The Special Rapporteur is fully aware of the magnitude and complexity of the issues

in Rakhine and their highly politicized nature. The activities of ultra-nationalist political

parties and religious movements have helped to fuel tensions and polarize communities. At

the same time, positive forces are also at play. Many actors are working tirelessly to

promote interfaith dialogue and harmony and to build bridges and trust between

communities. Their approach will, however, unfortunately be limited as long as the deeper

structural and legal issues remain unaddressed. In recent months, a number of new reports

and articles have once again highlighted alleged widespread and systematic human rights

violations faced by the Rohingya for decades, and called for international action.

39. The Special Rapporteur calls upon the new Government to take immediate steps to

put an end to the highly discriminatory policies and practices against the Rohingya and

other Muslim communities in Rakhine. In practice, these policies deny the affected

population some of their most fundamental rights. Of particular importance is the need to

restore freedom of movement for all, which in turn could facilitate the process of return and

reintegration of communities. Ongoing discriminatory restrictions to freedom of movement

are largely used to control the Rohingya population; as a consequence, movement is

restricted within and between townships, and people must obtain specific authorization to

travel outside Rakhine State. These restrictions severely affect all aspects of their life,

including access to livelihood, and hamper interactions between the Rakhine and Muslim

communities. Without progress on this key issue, it will not be possible to address many of

the other human rights concerns in Rakhine. Local orders in northern Rakhine State require

Rohingya to obtain permission to marry, and attempt to limit couples to two children; any

child born beyond that limit risks not being included in the family household list and

remaining unregistered, a status that has a multitude of consequences for the child. As all

children have the right to be registered at birth, the Special Rapporteur calls upon the

Government to take steps towards ensuring universal birth registration in Rakhine,

regardless of the child’s or the child’s parents’ nationality, statelessness or legal status (see

A/HRC/31/29; see also CRC/C/MMR/CO/3-4, para. 44).

40. The Special Rapporteur continues to receive reports of cases of preventable deaths

due to lack of access to emergency medical treatment. She is particularly concerned about

patients in need of emergency treatment outside Sittwe who are required to travel to Sittwe

General Hospital to receive treatment owing to restrictions on their freedom of movement.

In certain locations, this trip can take up to several hours and has reportedly led to

preventable deaths. The Special Rapporteur calls upon the Government to uphold the right

to health of the entire population in Rakhine and to ensure equal access and medical

treatment to all in public health facilities, irrespective of religion, ethnicity or citizenship.

41. In northern Rakhine, arbitrary arrests and detention continue to be reported. Some

cases appear linked to extortion, given that detainees are often released following the

5 See Center for Diversity and National Harmony, Rakhine State Needs Assessment, September 2015.

payment of a bribe. Since January 2016, the Border Guard Police and the “Immigration

Team for the Prevention of Illegal Immigration of Foreigners” (MaKaPa) have been

conducting their annual population check to update Rohingya household lists. They have

announced new and cumbersome procedures for adding children to the lists, which may

perpetuate the problem of unregistered children.

42. On 8 February 2016, the curfew order imposed in northern Rakhine since June 2012

was once again renewed for two months. The order also prohibits gatherings of five or

more people in public areas, including at mosques, further affecting on daily life and basic

religious observance. The curfew and related restrictions are discriminatory, as they appear

to be enforced only against the Rohingya.

43. The Special Rapporteur highlights the increasingly dire housing conditions for the

majority of internally displaced persons, including some 95,000 located in Sittwe rural

camps. Longhouses accommodating multiple families were initially designed to last only

two or three years, and many are now collapsing. In 2015, some 25,000 internally displaced

persons were provided with 3,000 individual houses, but only a small minority relocated

voluntarily. The Special Rapporteur reiterates her previous calls to the Government to

ensure durable solutions to displacement in accordance with international standards; these

should include voluntary returns to places of origin and avoid the permanent segregation of

communities. The right to an adequate standard of living must be ensured for those who

remain displaced as well as for those who return.

44. Little progress has been made in resolving the legal status of the more than 1 million

Rohingya in Myanmar, including their access to citizenship. The citizenship verification

process, which had raised international concern, including that of the Special Rapporteur

(see A/69/398, para. 52 and A/70/412, para. 41), is effectively stalled. Those granted

citizenship through the process, including in Myebon Township, where it was piloted in

June 2014, reportedly remain in camps and continue to face restrictions on their freedom of

movement and access to basic services.

D. Gender and women’s rights issues

45. The Special Rapporteur welcomes the adoption of the National Strategic Plan for the

Advancement of Women (2013-2022), and urges the Government to adopt, as a matter of

priority, implementation mechanisms that are adequately funded for the plan to be

implemented.

46. The Special Rapporteur notes that, while the number of women parliamentarians has

increased following the 2015 elections, women only account for 13 per cent of Members of

Parliament. Equally, women’s representation at the regional and local levels remains low,

for example, making up just 0.25 per cent of village tract administrators. A greater effort

should be made to promote women’s participation in public and political life, in accordance

with the State’s obligations under the Convention on the Elimination of All Forms of

Discrimination against Women.

47. Although no national prevalence data currently exist, reports indicate that all forms

of sexual and gender-based violence are a matter of serious concern across Myanmar. In

particular, anecdotal evidence reflects a high prevalence of emotional, physical and sexual

intimate partner violence committed against women. In this context, the Special Rapporteur

welcomes the development of the draft law on the prevention of violence against women in

conjunction with civil society, and emphasizes that it must comply with the Convention on

the Elimination of All Forms of Discrimination against Women. The draft law, currently

being reviewed by the Office of the Attorney General, has been subject to several

problematic revisions. It should contain a comprehensive definition of rape and include

provisions against rape and other forms of sexual violence committed by the military,

police and uniformed personnel in conflict. The law should also address all forms of

gender-based violence, including domestic violence and marital rape, and provide for

adequate penal sanctions, including against the military, as well as other measures, such as

interim protection orders.

48. Sexual and gender-based violence, including domestic violence, is a particular

problem in conflict areas. In his report on conflict-related sexual violence, the Secretary-

General found that sexual violence was widespread in Kachin State, northern Shan and

Rakhine States, and areas subject to ceasefire agreements in Chin State and the south-east

of the country (S/2015/203, para. 41). Civil society organizations documented 118 cases of

sexual violence, allegedly committed by the military across Myanmar between 2010 and

2014.6 The significant underreporting of sexual violence would suggest that statistics

underestimate the true scale of the problem. Victims are reluctant to report cases for a range

of reasons, including fear for their own security. The Special Rapporteur was also informed

of cases where small amounts of financial compensation were apparently offered to

families to discourage legal action; for example, the family of a girl allegedly raped by a

soldier was reportedly induced by the army to sign a statement declaring that they would

not pursue prosecution after accepting a financial settlement.

49. When cases are reported and prosecuted, it is frequently through military

procedures, which lack transparency and often provide little justice. While the Special

Rapporteur welcomes the conviction of two soldiers for rape in 2014, that outcome does not

reflect the general trend nor the structural challenges involved, which often result in

impunity. Although section 72 of the Defence Forces Act (1959) requires serious crimes

committed against civilians (including murder and rape) to be transferred to civilian courts,

it contains broad exceptions for acts committed “while on active service”. The Ministry of

Defence informed the Special Rapporteur that 61 members of the military were prosecuted

for sexual and gender-based violence from 2011 to 2015; of these, 31 were tried under

court martial. According to information from the Government, families are sometimes

invited to witness trials in military courts; however, proceedings remain opaque and victims

are frequently unaware of whether action has been taken against perpetrators.

50. Investigations, when conducted, are often seen as flawed and lacking in credibility.

One year on, the investigation into the alleged rape and murder of two Kachin

schoolteachers, Maran Lu Ra and Tangbau Hkwan Nan Tsin, in Shan State has yet to lead

to any charges. Local villagers are frustrated at the ongoing impunity of perpetrators. They

also fear future attacks or legal action, given that the military has allegedly threatened to

pursue anyone publicly accusing the army of involvement. In addition, a large number of

cases of rape, including child rape, are reportedly handled by traditional justice mechanisms

and often settled by arranging the marriage of the victim to the perpetrator, without any

consideration of the victim’s rights.

E. Conflict and peace process

51. On 15 October 2015, a nationwide ceasefire agreement was signed between the

Government and eight armed groups. This followed the signature since 2011 of bilateral

ceasefire agreements with 14 ethnic armed groups. Nonetheless, violent clashes continue in

parts of Myanmar, including in Kachin and Shan States, as well as Chin, Rakhine and

Karen States. The Special Rapporteur also notes with concern the conflict between two

6 Women’s League of Burma, “If they had hope they would speak”: The ongoing use of state-

sponsored sexual violence in Burma’s ethnic communities, November 2014

ethnic groups, the Ta’ang National Liberation Army and the Restoration Council of Shan

State – a signatory of the NCA – in Shan State. The conflict first erupted in November 2015

and has recently intensified.

52. Civilians bear the brunt of the ongoing fighting. The Special Rapporteur is

concerned at reports of serious human rights violations committed by all parties to the

conflict. Attacks against civilian populations, extrajudicial killings and torture (including of

persons with suspected links to specific armed groups), inhumane and degrading treatment,

abductions of men, women and children (including for forced labour and for use as possible

human shields), and looting, property confiscation and destruction have been reported.

Allegations of forced recruitment, child and underage recruitment (in order to maintain

troop strength) also persist, notably by ethnic armed groups. Fighting between the parties,

with reports of indiscriminate firing and shelling in villages, have resulted in civilian

casualties and injuries. Additionally, as noted above, reports of sexual and gender-based

violence, including domestic violence in conflict–affected areas, are widespread. There

have also been reports of trafficking of women and girls, as well as of early and forced

marriage, particularly in Shan State.

53. The Special Rapporteur calls upon all parties to ensure the protection of civilians

during armed conflict and to respect international human rights and humanitarian law. She

recalls in particular common article 3 of the Geneva Conventions, to which Myanmar is

party, which provides for the protection of civilians from inhumane treatment and violence

to life and person in non-international armed conflicts. Individual cases should be

investigated promptly by an independent body and perpetrators held to account. The

Special Rapporteur notes that victims are frequently reluctant to make official complaints

out of fear of retaliation. Steps should be taken to address such concerns. Preventative

activities such as training and awareness-raising in the military and armed groups should

also be expanded.

54. There are more than 96,000 displaced persons in Kachin and northern Shan States as

a result of the conflict. Further displacements have been caused by fighting between the

Restoration Council of Shan State and the Ta’ang National Liberation Army, including of

3,000 people after one week of fighting in February 2016. In southern Shan State, many of

those displaced by the clashes in late 2015 have reportedly now returned; however, 2,000

people remain displaced, some in camps that lack adequate drinking water and sanitation.

International organizations have limited access to many conflict-affected areas owing to

their remoteness, security concerns and the difficulty of securing authorizations from

government authorities or ethnic armed groups. Local community and civil society groups,

often with limited resources and capacity, continue to provide much-needed assistance in

these areas.

55. The lack of access hampers much-needed information-collection and reporting on

conflict-related concerns and violations. Humanitarian access to 1,000 civilians displaced in

Sumprabum (Kachin State) remains restricted, despite reports of the urgent need for

emergency shelter and medical supplies.7 An estimated 4,000 individuals reportedly remain

in China displaced from the Kokang self-administered zone.8 Little information is available

on the status of the fighting in the area or on the steps taken to investigate alleged human

rights violations reported during the fighting in 2015. Internally displaced persons in camps

in and around the area apparently endure difficult conditions, including restrictions on

movement and no access to markets, education or livelihood. Fighting has also flared in

7 Office for the Coordination of Humanitarian Affairs, Humanitarian Bulletin, Myanmar, issue 7,

November – December 2015.

8 Ibid.

Rakhine and southern Chin States between the Arakan Army and the Myanmar army,

displacing hundreds of people.

56. The Special Rapporteur emphasizes that the rights of internally displaced persons

and those affected by conflict must be addressed as a priority. The United Nations and its

partners should have regular, independent and predictable access to all those needing

humanitarian assistance. The Government and all parties to the conflict should grant

immediate access to all sites hosting internally displaced persons. She welcomes the

commitment to the voluntary return of displaced persons in the national ceasefire

agreement and the commencement of small, local projects to provide durable solutions to

displaced persons in Kachin State. The presence of an estimated 230,000 internally

displaced persons in a situation of protracted displacement in the south-east of Myanmar

and thousands more in Shan and Kachin States make such programmes vitally important.

Any returns must be in compliance with the Guiding Principles on Internal Displacement

and the Framework on Durable Solutions for Internally Displaced Persons. Steps must be

taken to ensure that the informal or private education of internally displaced children is

recognized, and that they have access to public education when they return. Returning

individuals should also be assisted in reacquiring legal documents, which are the gateway

to other services.

57. Landmines and unexploded ordnance are a major factor preventing the return of

internally displaced persons, with casualties from landmines estimated at 3,700 in the past

15 years, but likely to be far higher.9 The Special Rapporteur was particularly concerned at

reports of the continuing use of landmines, resulting in casualties and injuries. She calls

upon all parties to the conflict to cease immediately the use of landmines. The Special

Rapporteur was informed that Myanmar continued to study the Convention on the

Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and

on Their Destruction, and calls again for its prompt signature. The mapping and clearance

of landmines and unexploded ordnance should be prioritized, and receive assistance from

the international community.

58. The Special Rapporteur welcomes the inclusion of the principles of equality and

non-discrimination, justice and the right to self-determination in the national ceasefire

agreement. Numerous human rights concerns are also addressed in general terms. Having

been informed in August 2015 that the dialogue following the agreement would address

these issues in more detail, she followed the progress of the first Union Peace Conference

(held from 12 to 16 January 2016) closely. She welcomes the inclusion of land and natural

resource concerns in discussions, and stresses that these complex issues – as well as broader

entrenched inequalities – should be addressed in future talks. She notes that only a limited

number of representatives of civil society organizations were able to attend the conference,

leading some to feel excluded from the process. The Myanmar Peace Center informed the

Special Rapporteur that national dialogues will be organized throughout the country before

the next Union Peace Conference, and that civil society will have the opportunity to “play

the most important role.” Shared ownership and confidence are needed to ensure buy-in

from all stakeholders and affected communities. She urges full consultation with local

communities and civil society organizations in future.

59. The Special Rapporteur welcomes the commitment to achieve at least a 30 per cent

participation by women at different levels of the political dialogue in the four-point

proposals approved at the conference. This is the first step in ensuring the greater inclusion

of women in the peace process. Women should, in accordance with Security Council

9 Landmine and Cluster Munition Monitor, Landmine Monitor 2015, November 2015 The organization

Mine Free Myanmar estimates 40,000 casualties.

resolutions 1325 (2000) and 1889 (2009), be represented at all levels, including in decision-

making and leadership positions. She also calls for the integration of women’s rights issues

and a gender perspective in any future dialogue, and for women’s civil society

organizations to be given formal access to the process. She welcomes the recommendation

made at a senior officials workshop held in 2015 on formulating a national strategy or plan

of action on the implementation of Security Council resolution 1325 (2000), and urges the

Government to work with national organizations and the international community in this

regard.

60. Truth-seeking, accountability and reparations processes for current and historic

conflict-related violations are critical for building a sustainable and inclusive peace. They

should not be seen as threatening, but rather an opportunity to foster national reconciliation

and to build trust. The Special Rapporteur urges the Government to consider broad and

public consultations on possible frameworks and forms for such processes.

61. The Special Rapporteur welcomes the signing by the Government of the Optional

Protocol to the Convention on the Rights of the Child on children and armed conflict in

September 2015, and hopes that it will be ratified quickly. She also welcomes the efforts to

implement the joint action plan of the United Nations and the Government to end and

prevent the recruitment and use of children in armed conflict. In November 2015, the

military discharged 53 underage recruits, thus bringing to 698 the total number of children

released since the signing of the joint action plan in 2012. The Ministry of Defence

informed the Special Rapporteur that 18,699 members of the military had received training

on the prevention of underage recruitment; disciplinary action had been taken against 382

military personnel; the country task force on monitoring and reporting had made a total of

40 monitoring visits; and that efforts were being made to raise public awareness of the

issue. The recruitment and use of children in the military, border guard forces, and

particularly in non-State armed groups, continues nonetheless. Furthermore, the continued

detention of children as “deserters” remains a concern. The Special Rapporteur calls upon

the Government and all armed groups to end and prevent the recruitment and use of

children as soldiers. She also urges the Government to accelerate the identification, release

and reintegration of all children currently in the armed forces. The Government should also

strengthen age verification and monitoring and oversight mechanisms for recruitment, and

ensure that all those responsible for child recruitment and use, including civilian brokers,

are brought to justice.

F. Development and economic, social and cultural rights

62. The Special Rapporteur welcomes the State’s ongoing commitment to improve the

economic and social development of its people. This remains of vital importance for the

future transformation of the country. She reiterates the need to ensure that development and

investment are managed proactively to ensure rights-based and people-centred processes,

which bring benefits to all. Such processes should include poverty reduction, equitable

resource-sharing and non-discrimination as central pillars. Steps should be taken to amend

legislation where relevant, but also to change existing mindsets and practices. In this

context, the signing by the Government of the International Covenant on Economic and

Social Rights is particularly welcome, given that, together with the Sustainable

Development Goals, it can constitute a comprehensive framework and benchmarks for the

State’s development.

63. Land issues will be one of the most pressing challenges for the new Government. An

estimated 70 per cent of the population of Myanmar live in rural areas dependent on

agriculture and related activities. Forced evictions, land-grabbing and land confiscation for

development projects, mining and other natural resource extraction remain issues of serious

concern, increasing poverty and displacement and destroying livelihoods, with a

consequent effect on a host of other rights, including access to health and education, and a

loss of cultural and traditional knowledge. There is often little or no consultation with

affected communities, limited or no compensation provided, and limited access to effective

legal remedies.

64. The Special Rapporteur has previously highlighted how the complex existing legal

framework provides insufficient protection against evictions and does not recognize

customary land tenure or community-managed resources (see A/70/412, para, 62). She

therefore welcomes the new national land use policy, adopted in January 2016 following

consultations, which addresses some of these concerns. The adoption of an overarching

land law following a similar process of extensive consultation with all stakeholders could

help to protect the rights of farmers and rural communities throughout Myanmar, and

strengthen the confidence of the private sector looking to invest.

65. The Land Confiscation Investigation Commission reported to the Parliament on 25

January 2016 that many land disputes remained unresolved, and that government bodies at

different levels did not abide by relevant laws, procedures and recommendations made by

the Commission. In accordance with principle 25 of the Guiding Principles on Business and

Human Rights, the Government should take appropriate steps to ensure access to effective

remedy, whether though judicial, administrative, legislative or other appropriate means.

The Special Rapporteur believes, therefore, that the creation of a system for addressing land

complaints with the necessary powers to provide redress would be an important safeguard

for future cases. Meaningful redress must also be provided to the thousands of individuals

whose land was confiscated in the past.

66. In an attempt to protect their rights, people have increasingly resorted to public

protests against land confiscations. Unfortunately, some of those exercising their right to

peaceful assembly, including farmers and land rights activists, continue to face harassment,

intimidation and criminal prosecution. Such prosecutions should cease immediately, and

those detained for peaceful protests should be released.

67. The Special Rapporteur welcomes the adoption in January 2016 of environmental

impact assessment procedures, which may have a positive impact on the way development

projects are conducted. Consultations should genuinely seek the input of affected

communities. Other requirements, such as the public disclosure of assessments, must be

implemented and enforced consistently. She welcomes the fact that the new standards apply

to all projects, including those that have already commenced. Cooperation between civil

society and regional or local authorities could assist in prioritizing the many projects to be

examined.

68. One area requiring urgent review is the jade mining industry. In 2015, 37 landslides

in Hpakant killed more than 150 people. These tragic events demonstrate the urgent need to

guarantee the safety of those whose livelihoods depend on the mines, as well as the right to

life and the health of the communities living near them. Although the Special Rapporteur

was informed of the creation in January 2016 of a fact-finding group on the jade industry,

which will focus on illegal vehicle importation, she urges the authorities to conduct a

broader investigation into mining operations, which should include consultation with the

communities affected and civil society organizations.

69. Transparency is also vital to enable local communities to hold vested interests to

account and to ensure that development is beneficial to all. The Special Rapporteur

therefore welcomes the publication, on 2 January 2016, of the first report on the Myanmar

Extractive Industries Transparency Initiative for the period from April 2013 to March 2014.

She notes, however, the lack of detailed information relating to the jade industry, estimated

to account for up to 48 per cent of the State’s total gross domestic product,10 including on

beneficial ownership and contract terms. She calls for the release of such information,

which could help to tackle corruption in the sector. The new Government should also

consider reviewing existing legislation and regulations to ensure that they include

transparency requirements and environmental, social and human rights protection.

70. Private companies have a responsibility not to cause or to contribute to human rights

abuses. The Special Rapporteur therefore welcomes the increasing awareness of human

rights in some companies in Myanmar, and notes that several have now adopted human

rights policies. She encourages all investors and businesses proactively to ensure that they

abide by the Guiding Principles on Business and Human Rights, as well as other relevant

standards, such as the Voluntary Guidelines on the Responsible Governance of Tenure of

Land, Fisheries and Forests in the Context of National Food Security of the Food and

Agriculture Organization of the United Nations. She also encourages the Government to

develop, following consultations with relevant government departments, civil society and

the private sector, a national plan of action on business and human rights.

71. Drug addiction is an underreported phenomenon, and one of increasing concern,

particularly in conflict-affected Kachin and Shan States. The Special Rapporteur heard

concerns about the increased availability of drugs and the severe impact on the health and

livelihoods of those affected, particularly youth. She therefore welcomes the permission

recently given to the United Nations Office on Drugs and Crime (UNODC) to conduct the

first national drug use survey. She is concerned, however, at new reports of community

“vigilante” groups discriminating against or calling for extreme measures against drug

users, such as public caning. The use of amphetamine-type stimulants in parts of Myanmar

has more than tripled in recent years11 and treatment options are severely limited. Although

production has stabilized, Myanmar remains the second largest producer of opium in the

world, 12

with poverty and continuing conflict driving poppy cultivation. Steps should be

taken to improve the treatment options available for drug users, and efforts to tackle

production should ensure long-term sustainable development for farmers.

G. Engagement with the international human rights system

72. The Special Rapporteur welcomes the ratification by Myanmar of several

instruments since 2011, including the Convention on the Rights of Persons with

Disabilities, the Optional Protocol to the Convention on the Rights of the Child on the sale

of children, child prostitution, and child pornography, and recently the Convention on the

Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons

and on Their Destruction. In 2015, Myanmar also became a signatory to the International

Covenant on Economic, Social and Cultural Rights and the Optional Protocol to the

Convention on the Rights of the Child on the involvement of children in armed conflict.

She urges the new Government to ratify both instruments quickly, and welcomes the

assurances of the Ministry of Foreign Affairs that priority will be given to these treaties.

The Special Rapporteur also welcomes the Government’s decision to join the Group of

Friends of the Convention against Torture Initiative and the efforts to have the Convention

translated. She hopes this will be followed by early ratification. She also urges the new

Government to sign and ratify the International Covenant on Civil and Political Rights,

10 Global Witness, Jade: Myanmar’s “Big State Secret”, October 2015, p. 6.

11 UNODC, Southeast Asia Opium Survey 2014, p. 49.

12 UNODC, Southeast Asia Opium Survey 2015.

which would comprehensively underpin the consolidation of democracy and rule of law in

the country.

73. Myanmar underwent its second universal periodic review in November 2015. While

the Special Rapporteur commends the Government for its active engagement in the process,

she regrets that many important recommendations were not accepted, including

recommendations on the Peaceful Assembly and Peaceful Procession Law, the Citizenship

Law and the four “race and religion” laws. She calls upon the Government nonetheless to

consider implementing these recommendations. The Special Rapporteur hopes that the

Government will take the necessary steps to ensure follow-up to the recommendations

accepted, and those made by other human rights mechanisms. In this regard, she welcomes

the statement by the Ministry of Foreign Affairs that Myanmar will consider the

development of a national human rights plan of action to support the implementation of the

recommendations accepted during the universal periodic review.

74. In November 2015, the Subcommittee on Accreditation of the International

Coordinating Committee of National Institutions for the Promotion and Protection of

Human Rights classified the Myanmar National Human Rights Commission with “B”

status. The Special Rapporteur urges the Government to amend the Myanmar National

Human Rights Commission Law (2014) and to act on the Subcommittee’s

recommendations, particularly with regard to the appointment process and the need to

ensure adequate funding and to safeguard the Commission’s financial independence.

75. Lastly, given the broad scope of prevailing human rights challenges and the

priorities for the new Government, the Special Rapporteur continues to highlight the value

of establishing an office of the Office of the United Nations High Commissioner for Human

Rights (OHCHR) with a full mandate. The continued restrictions on visas and travel

authorizations faced by the OHCHR team currently operating in Myanmar illustrate the

need for a sustainable, long-term solution. The establishment of a full-fledged OHCHR

office in Myanmar in the coming months could provide the Government and Parliament

with much needed assistance and support in their efforts to consolidate democratic reforms

and to ensure greater respect for human rights during this important period.

IV. Conclusions

76. Myanmar is a very different country to the one of just a few years ago. Four

years of wide-ranging reforms have undeniably changed the situation of human

rights. The impact of the historic elections held in November 2015, resulting in the

formation of a new Government and Parliament, with more than 100 former political

prisoners among them, cannot be overstated. Now is not, however, the time for

complacency. The uncertainty and lack of clarity in government authority and

functioning during this period of transition will not, it is to be hoped, be accompanied

by instability and political tensions, which could provide an environment for further

human rights abuses and violations. The situation should be monitored closely.

77. There is now a real opportunity to address and tackle the key human rights

challenges that continue to affect all communities in Myanmar. These challenges

should be at the top of the country’s agenda over the coming weeks and months. The

Special Rapporteur believes that this is essential in order to make meaningful and real

progress towards democratic transition, national reconciliation, sustainable

development and peace in Myanmar. While progress can and should be made quickly

and urgently in some areas, others issues will take time to resolve. These are complex

issues that will require not only legislative and policy change, but also a change in

behaviour and mindset. The Government should regard civil society and human

rights defenders as vital partners in this process. Strengthened cooperation and closer

engagement with the United Nations and international human rights mechanisms will

also be important and would be greatly facilitated by an OHCHR office in Myanmar.

The Special Rapporteur hopes she will have the opportunity to work closely and

constructively with the new Government and all other stakeholders in Myanmar to

improve the situation of human rights in the country.

V. Recommendations

78. The Special Rapporteur recognizes the legacy of reform left by President Thein

Sein, in particular his progressive release of political prisoners though a succession of

amnesties. She urges him to use his remaining weeks in office to release immediately

and unconditionally all political prisoners, including peaceful protestors charged or

convicted under the Peaceful Assembly and Peaceful Procession Law and the Penal

Code, and those charged or convicted under outdated defamation, trespassing and

national security laws.

79. In its first 100 days in office, the Special Rapporteur urges the new

Government:

(a) To cease immediately the arbitrary arrest and prosecution of those

exercising their rights to freedom of assembly, association and expression, and to

release any remaining political prisoners;

(b) To condemn publicly all acts of incitement to discrimination, hostility

and violence against minorities, while upholding freedom of expression;

(c) To lift the curfew and restrictions on freedom of movement in Rakhine

State;

(d) To ensure access to adequate health, education and other basic services

for all displaced persons, particularly in Rakhine State, without discrimination;

(e) To make every effort to reach an early agreement with the United

Nations High Commissioner for Human Rights on the establishment of a country

office in Myanmar with a full mandate.

80. With regard to the peace process and conflict-related violations, the Special

Rapporteur recommends that all relevant actors:

(a) Ensure greater participation of women in the peace process, including in

delegations, particularly in leadership roles, with a minimum quota of 30 per cent and

the integration of women’s issues and a gender perspective into political dialogue;

(b) Cease immediately the use of landmines and issue clear directives to

adhere to international humanitarian and human rights law, and ensure the

protection of civilians;

(c) Ensure that the United Nations and its partners have regular,

independent and predictable access to all those in need of humanitarian assistance,

wherever they are located.

81. The Special Rapporteur recommends that concrete steps be taken before

March 2017 to implement the recommendations below.

82. With regard to the rule of law, the Special Rapporteur recommends that the

Government and Parliament of Myanmar:

(a) Undertake a comprehensive review of legislation and legal provisions

that limit fundamental freedoms and contravene international standards, with clear

target dates for the conclusion of the review; legislation requiring urgent review

should be identified, including those previously identified by the Special Rapporteur

and the previous mandate holders (see annex);

(b) Establish a process of legislative reform with clear timelines for

consultations on and the drafting and review of amendments to existing legislation or

new draft bills. The timeline should allow for the full consideration of the proposed

laws. An appropriate consultation process should be established and applied

consistently to ensure transparency and adequate engagement by civil society

organizations and members of the public. A vetting mechanism should also be

established to ensure that all draft legislation complies with international human

rights standards;

(c) Continue to accord priority attention to judicial reform and the

capacity-building and training of judges and lawyers to strengthen the independence

and effectiveness of the judiciary;

(d) Initiate a process of consultation with all stakeholders on the review and

amendment of the Constitution, to bring it into line with international standards.

83. With regard to democratic space, the Special Rapporteur recommends that the

Government and Parliament of Myanmar:

(a) Amend or repeal section 18 of the Peaceful Assembly and Peaceful

Procession Law and section 505 (b) of the Penal Code, drop all charges currently

being brought against individuals under these provisions; and ensure that multiple

charges are not brought against individuals for the same offence;

(b) Establish systems to prevent the surveillance and monitoring of civil

society and human rights defenders; and investigate and redress systematically any

threats, acts of intimidation or harassment against media and civil society actors;

(c) Provide adequate compensation and support, including psychological

support and employment training, for released political prisoners;

(d) Initiate reform to the penal system to ensure compliance with

international standards, particularly in relation to the minimum standards of

accommodation and access to health facilities.

84. With regard to incitement to discrimination, the Special Rapporteur

recommends that the Government and Parliament of Myanmar:

(a) Implement a comprehensive set of measures to combat and prevent acts

of incitement to discrimination, hostility and violence against minorities, while

upholding internationally recognized human rights standards;

(b) Ensure respect for the rights of minorities, including through education

and awareness-raising measures addressing the root causes of discrimination, and

promote interfaith and intercommunal dialogue, as well as confidence-building;

(c) Review and amend the Citizenship Law (1982) to bring it into line with

international standards; and, in particular, remove any provisions that provide for

the granting of citizenship on the basis of ethnicity or race;

(d) Resolve the legal status of habitual residents of Myanmar, including

former holders of the temporary registration card, and ensure that they have equal

access to citizenship through a non-discriminatory process.

85. With regard to Rakhine State, the Special Rapporteur recommends that the

Government and Parliament of Myanmar:

(a) Review and revise all local orders, instructions and other policies and

practices that are discriminatory in law and in practice;

(b) Address long-standing challenges to social and economic development

through a human rights-based approach, while ensuring the participation of the

communities affected, and fostering reconciliation and greater integration between

communities.

86. In the field of gender equality and ensuring respect for women’s rights, the

Special Rapporteur recommends that the Government and Parliament of Myanmar:

(a) Enact a law on the prevention of violence against women that is

compliant with international law, and take more effective measures to prevent and

respond to all forms of sexual and gender-based violence, including in conflict;

(b) Develop a programme of comprehensive support for victims and

survivors, including access to justice, and take the necessary steps to ensure that

perpetrators are prosecuted and convicted;

(c) Create a system for the collection of disaggregated data on all forms of

gender-based violence in order to measure the scope and scale of the problem;

(d) Ensure that members of the military who perpetrate serious crimes,

including murder and rape, against civilians are prosecuted, and that such cases are

transferred to civilian courts.

87. With regard to conflict-related human rights concerns, the Special Rapporteur

recommends that the Government of Myanmar:

(a) Ensure prompt, independent and impartial investigations into

allegations of violations committed in conflict areas, and the prosecution and

punishment of all perpetrators;

(b) Ensure that complainants are not penalized or threatened with legal

action for bringing complaints and seeking redress against violations committed by

the military;

(c) End all child recruitment in the armed forces through strengthened

recruitment procedures, age verification mechanisms and independent monitoring

and oversight of all armed forces; release all children currently in the armed forces

and in armed groups; and expedite the ratification of the Optional Protocol to the

Convention on the Rights of the Child on children and armed conflict;

(d) Ensure the full participation of local and affected communities, civil

society organizations and women in the peace process, including at the State level and

in implementation and monitoring mechanisms;

(e) Ratify the Convention on the Prohibition of the Use, Stockpiling,

Production and Transfer of Anti-personnel Mines and on Their Destruction;

prioritize the clearance of landmines and unexploded ordnance; and undertake

comprehensive mine survey, marking and fencing activities.

88. In the field of economic, social and cultural rights, the Special Rapporteur

recommends that the Government of Myanmar:

(a) Ensure that environmental impact assessment procedures are

consistently implemented and enforced, and include genuine consultations with the

communities affected, and ensure that all relevant information is freely and easily

accessible;

(b) Enact, following an extensive and inclusive consultation process, a new

land law in compliance with international standards;

(c) Establish, following consultations with civil society organizations and

individuals affected, a system for addressing land complaints and that includes

mechanisms for redress for current and past cases;

(d) Review existing legislation and regulations governing the extractive

industries to ensure they include transparency requirements and environmental,

social and human rights protection.

89. The Special Rapporteur also calls upon all investors and businesses, domestic

and international, to abide by the Guiding Principles on Business and Human Rights

and other relevant standards in their investments and operations in Myanmar.

90. The Special Rapporteur calls upon the Government of Myanmar to ratify the

International Covenant on Economic, Social and Cultural Rights, the International

Covenant on Civil and Political Rights, and all other core international human rights

instruments.

91. The continued support and constructive engagement of the international

community is vital at this important juncture. The Special Rapporteur therefore urges

the international community to continue to monitor the situation of human rights

closely and to engage the Government of Myanmar on the human rights concerns

highlighted in the present report. She also calls upon the international community to

assess progress on the basis of international human rights standards, and to hold

Myanmar accountable to its international commitments and obligations.

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Annex I

Legislation in need of reform in Myanmar*

Legislation Provision Summary Right at stake References in reports by the Special

Rapporteur on the situation of human

rights in Myanmar since 2011

Democratic space

Penal Code 141 – 145 Imposes criminal penalties for membership of ‘unlawful assemblies,’

including up to six months’ imprisonment for anyone joining or continuing

an assembly, and up to two years for knowingly joining an assembly after

it has been commanded to disperse.

Right to

freedom of

assembly

A/70/412 paras. 21 and 81(c);

A/HRC/25/64 paras. 25 and 86(c);

A/68/397 para. 67; A/HRC/22/58 paras. 26

and 90(b); A/HRC/19/67 para. 10;

A/66/365 paras. 51 and 94(c)

146, 147,

149 In an unlawful assembly, if any individual uses force or violence, all other

members of the assembly can be prosecuted and imprisoned for violence,

irrespective of their actual involvement.

Right to

freedom of

assembly

A/70/412 paras. 21 and 81(c)

295 Imposes penalties of up to two years’ imprisonment for speech intended to

cause religious outrage which insults, or attempts to insult, religion or

religious belief.

Right to

freedom of

expression

A/HRC/25/64 para. 86 (c); A/HRC/19/67

para. 10; A/66/365 paras. 51 and 94(c)

298 Imposes penalties of up to one year’s imprisonment for acts committed

with deliberate intent to wound religious feelings.

Right to

freedom of

expression

499 - 502 Impose criminal penalties of up to two years’ imprisonment for

defamation.

Right to

freedom of

expression

505 Imposes penalties of up to two years imprisonment for publishing or

circulating statements, rumours or reports with intent to cause members of

the military to disregard their duty or which are likely to incite or induce

the public to commit a broad range of offences.

Right to

freedom of

expression

A/70/412 paras. 21 and 81(c);

A/HRC/25/64 paras. 25, 74 and 86(c);

A/68/397 para. 67; A/HRC/22/58 para.

90(b); A/HRC/19/67 para. 10; A/66/365

paras. 51 and 94(c)

Code of Criminal

Procedure

401 Allows the President to reverse a decision to grant amnesty if, ‘in his

opinion,’ any condition imposed at the time of release is later breached.

Right not to be

arbitrarily

detained

A/HRC/25/64 paras. 62 and 86(c);

A/68/397 paras.5 and 67; A/67/383 para.9

and 95(c); A/HRC/22/58 para.7;

A/HRC/19/67 para.25

* Non-exhaustive list

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Peaceful Assembly and

Peaceful Processions

Act (2011) (as amended

in 2014)

4, 8 Requires individuals organising protests to seek prior permission from the

authorities rather than to notify them. The permission granted by the

authorities will be limited to a specific date, time, location and number of

attendees, and will detail the specific chants to be used. If permission is

denied, there is no right to appeal.

Right to

freedom of

assembly

A/70/412 paras. 20 and 81(c);

A/HRC/28/72 paras. 13 and 64(a);

A/69/398 paras. 27 and 79(d);

A/HRC/25/64 paras. 24, 74 and 78(a);

A/68/397 paras. 23, 62 and 84(a);

A/HRC/22/58 paras. 26, 29, 32 and 90(a)

12 Imposes a broad range of restrictions on assembly participants. In

particular, they must not cause annoyance, behave in a way which could

affect the country or Union, or use chants other than those prescribed in the

permission.

18, 19 Impose penalties including prison sentences for unlawful assemblies or for

breaching the above rules.

Unlawful Associations

Act (1908)

2, 16 Allow the President to declare any association illegal on the basis of a

range of broad grounds related to security and maintenance of law and

order.

Right to

freedom of

association

A/HRC/25/64 paras. 25, 74 and 78(b);

A/HRC/22/58 paras. 26 and 90(b);

A/67/383 paras. 28 and 95(c);

A/HRC/19/67 para. 10; A/66/365 para. 51

and 94(c) 17 Imposes penalties of up to three years’ imprisonment for any member of an

unlawful association or anyone who assists the association’s operations.

The manager of an unlawful association may be imprisoned for up to five

years.

Political Parties

Registration Law

(second amending

legislation) (2014)

2 Amends section 4 of the Political Parties Registration Act to remove the

right of associate and naturalized citizens and temporary certificate holders

to form political parties.

Right to

freedom of

association

A/70/412 para. 12; A/HRC/28/72 para. 22;

A/69/398 para. 14

4 Amends section 10 (a) of the Political Parties Registration Act to remove

the right of temporary certificate holders to become members of political

parties.

Electronic Transactions

Law (2004)

34 Imposes penalties of up to five years’ imprisonment for using electronic

technology in relation to information which causes detriment to the interest

of any organisation or person.

Right to

freedom of

expression

A/68/397 paras.17, 67 and 83(c);

A/HRC/25/64 paras. 19 and 76(c);

A/HRC/22/58 para. 89(d); A/67/383 paras.

26 and 95(c)

Telecommunications

Law (2013)

66 (d) Imposes penalties of up to three years’ imprisonment for a range of broadly

worded acts carried out through the telecommunications network,

including defamation.

Right to

freedom of

expression

A.HRC/31/71 para. 19

76 Allows government bodies unlimited power to enter and inspect any

telecommunications service, or require them to submit documents, if it is in

the public interest or in the interests of national security.

Right to privacy A.HRC/31/71 para. 25

77 Allows the Ministry of Information and Communications Technology

broad powers to suspend or take control of any telecommunications service

in an emergency situation.

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Ward or Village Tract

Administration Law

(2012)

13, 17 Require individuals to register with the Ward or Village Tract

Administrator any overnight guest who is not registered as part of the

family unit. Allow the Administrator to conduct household inspections to

determine if unregistered guests are present.

Right to privacy A/70/412 para. 29

News Media Law

(2014)

9 Imposes a Code of Conduct on all media workers, including an obligation

to avoid writing news that deliberately affects the reputation of a specific

person or organization and obey unspecified regulations published by the

Media Council.

Right to

freedom of

expression

A/70/412 para. 72; A/HRC/28/72 paras. 7

and 64(b); A/69/398 para 23

25 Imposes a fine of up to 1,000,000 kyats for breach of certain sections of the

Code of Conduct, including the prohibition on deliberately causing

reputational damage.

Printing and Publishing

Enterprise Law (2014)

4 – 7, Require publishing business to apply to the Ministry of Information for a

licence. Imposes fines of up to 5,000,000 Kyats on those failing to do so.

Allow the Ministry to revoke or suspend licences if the organisation is

found to have applied dishonestly. This decision may only be appealed to

the Minister of Information.

Right to

freedom of

expression

A/70/412 para. 72; A/HRC/28/72 paras. 6

and 64(c); 15, 16,

19

Television and Video

Law (1985)

22 Creates a Video Censor Board which includes the Managing Director of

the Myanmar Motion Picture Enterprise (administered by the Ministry of

Information) and representatives from ‘relevant’ government departments.

Right to

freedom of

expression

A/HRC/25/64 para 76(c); A/68/397 paras.

67 and 83(c); A/HRC/22/58 paras. 89(d)

A/HRC/19/67 paras. 10 and 42; A/66/365

paras. 51 and 94(c) 24 Allows the Video Censor Board unlimited power to prohibit the public

exhibition of a video tape, to seize and destroy any such video tape, and to

require a video to be amended or partially erased before public exhibition.

26 Allows the Video Censor Board to revoke a video censor certificate if there

is a ‘valid reason’ for doing do.

38 Provides the Video Censor Board unlimited power to limit the public

exhibition of foreign imported video tapes and amend or erase ‘unsuitable’

elements of video tapes before export.

32 Imposes penalties of up to three years’ imprisonment for anyone

committing a range of offences including distributing or exhibiting a video

without a video censor certificate and operating a video business without a

licence.

Motion Picture Law

(1996)

10 Provides for the creation of a Motion Picture Censor Board which includes

the Managing Director of the Myanmar Motion Picture Enterprise

(administered by the Ministry of Information) and representatives from

‘relevant’ government departments.

Right to

freedom of

expression

A/68/397 paras 67 and 83(c);

A/HRC/25/64 para 76(c); A/HRC/22/58

para 89(d); A/67/383 paras 26 and 95(c);

A/HRC/19/67 paras. 10 and 42; A/66/365

paras. 51 and 94(c). 12 Allows the Motion Picture Censor Board to refuse permission to film a

feature or only allowing filming to begin once a feature has been modified.

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13 Allows the Motion Picture Censor Board unlimited power to prohibit the

public exhibition of a motion picture, to retain or destroy any motion

picture films at will; and to require a motion picture to be amended, before

public exhibition.

17 Allows the Motion Picture Censor Board to revoke a censor certificate if

there is a ‘valid reason’ for doing so.

33 Imposes penalties of up to one year’s imprisonment for anyone carrying on

a motion picture business without a licence or screening a motion picture

without a Certificate.

Computer Science

Development Law

(1996)

34 Imposes penalties of up to 15 years’ imprisonment for anyone who uses

information technology to distribute information or to carry out an act

which undermines a range of broadly worded categories including

‘national unity’ and ‘national culture.’

Right to

freedom of

expression

A/68/397 paras. 67 and 83(c);

A/HRC/25/64 para 76(c); A/HRC/22/58

para 89(d); A/67/383 paras. 26 and 95(c);

A/HRC/19/67 paras. 10 and 42; A/66/365

paras. 51 and 94(c)

Emergency Provisions

Act (1950)

5 Imposes penalties of up to seven years’ imprisonment for ‘anything’ that is

done with various broad categories of intent, including anything done to

affect the ‘loyalty’ of civil servants or to ‘spread false news.’

Right to

freedom of

expression

A/HRC/25/64 paras 19, 74 and 76(c);

A/68/397 paras. 67 and 83 (c);

A/HRC/22/58 para. 89(d); A/67/383 para.

95(c); A/66/365 para. 94(c)

State Protection Act

(1975) (as amended in

1991)

10, 11,

14, 16

The Central board may order the detention of an individual for up to 180

days which may be extended to five years upon approval by the Cabinet.

Restriction on the movement of an individual can also be ordered by the

Central Board for up to one year. Detention must be reviewed every 60

days by the Cabinet or the Central Board. The article is silent on procedural

guarantees for the detained individual.

Right not to be

arbitrarily

detained Right

to an effective

remedy

A/68/397 para. 67 and 83(c),

A/HRC/25/64 para. 76(c); A/HRC/22/58

para. 89 (d); A/67/383 para. 95(c);

A/HRC/19/67 para. 10; A/66/365 paras. 51

and 94(c)

20 Appeals against decisions made by the Central Board can only be made to

the Cabinet.

Independence of judges and lawyers

Contempt of Courts

Law (2013)

2(d), 10 Imposes penalties of up to six months’ imprisonment for a range of acts

relating to judicial proceedings, including ‘impairing the public trust’ in the

judiciary or commenting on a judicial decision before it is passed, the latter

subject to a defence of truth.

Right to

freedom of

expression and

opinion

A/HRC/25/64 paras. 56 and 86(b)

Penal Code 228 Imposes penalties of up to six months’ imprisonment for anyone who

intentionally ‘offers any insult’ or ‘causes any interruption’ to any public

servant siting in a judicial capacity.

Right to

freedom of

expression and

opinion

A/HRC/31/71 para. 17

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Minorities and citizenship

Religious Conversion

Law (2015)

2 (c), 5,

7, 10

Creates a state regulated system for changing religion, which requires

application, justification, and registration for conversion, followed by an

interview, mandated study, and approval by the Registration Board.

Right to

freedom of

religion and

belief

A/70/412 paras. 76 and 81 (d);

A/HRC/28/72 paras. 28 and 67(b)

Population Control

Health-care Law (2015)

2 Refers to ‘population control’, which could be seen as regressive and

coercive approach to population and development.

Sexual and

reproductive

health and

rights

A/70/412 para 76 and 81(d); A/HRC/28/72

para 28 and 67(b)

14 (f) Provides a list of functions and duties of township groups including

‘organizing’ married couples to practice 36-month birth spacing between

pregnancies.

Buddhist Women’s

Special Marriage Law

(2015)

9 (c ) Requires Buddhist women above 18 and under age 20 to seek parental

consent to enter into marriage with non-Buddhist men. This requirement is

not imposed on Buddhist men.

Right to marry

Right to

equality and

non-

discrimination

A/70/412 para. 76 and 81(d),

A/HRC/28/72 para 29 and 67(b)

26, 27 Provides that a cohabiting couple, where the female partner is Buddhist and

the male partner is not, shall be assumed to have married in certain

circumstances. The Buddhist women’s parents, guardians or relatives may

provide information about this cohabitation which can result in the couple

being forced to marry or being sued in court. The provision is only

applicable to Buddhist women cohabiting with non-Buddhist men.

32 Provides protections against some forms of domestic violence for Buddhist

women married to men of other faiths but does not extend these protections

to all women. In cases of separation, dissolution of marriage or divorce,

non-Buddhist fathers are denied custody of children in all circumstances.

24, 39, 40 Impose broad and vague obligations on non-Buddhist men married to

Buddhist women such as not to “insult, in words or in writing or through

visible representation or gesture, with bad intention to cause bitter feeling

to the Buddhist”. Penalties for breach of these obligations include possible

prison sentences.

Monogamy Law (2015) 10, 16, 17 Impose criminal penalties for extramarital relationships. Right to privacy

Right to non-

discrimination

A/70/412 para 76 and 81(d), A/HRC/28/72

para 29 and 67(b)

Citizenship Law (1982) 3 (1) Gives full citizenship only to those ethnic groups which settled in

Myanmar prior to 1823 AD.

Right to

equality and

non-

discrimination

A/70/412 para 41 and 81(b),

A/HRC/28/72 para 67(e), A/69/398 para

12 and 53, A/HRC/25/64 para 49 and

83(f), A/68/397 para 57 and 91(n), 35 Allows the revocation of associate citizenship on vague grounds of

‘disaffection or disloyalty’ to the state or offences ‘involving moral

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turpitude.’ A/HRC/22/58 para 56 and 94(h), A/67/383

para 65 and 94(f) 58 Allows the revocation of naturalized citizenship on vague grounds of

‘disaffection or disloyalty’ to the state or offences ‘involving moral

turpitude.’

Economic, social and cultural rights

Farmland Law (2012) 12, 15,

17, 19 Forms management bodies made up of representatives of Ministries who

are in charge of resolving land disputes and approving land use change.

Prohibits the farmer granted the right to use the land from various activities

without permission from the management bodies including growing other

crops or leaving the land to fallow. Breach of the requirement can lead to a

fine, eviction or the removal of buildings constructed without permission.

Right to

adequate

standard of

living, including

the right to

adequate

housing, food,

water and

sanitation

A/70/412 para. 62; A/69/398 para. 57;

A/HRC/25/64 para. 27; A/68/397 para. 29;

A/67/383 paras. 38

22, 29, 30 The Farmland Management Body and the Cabinet can authorise the use of

land for other purposes if it is deemed to be in the national interest, subject

to compensation. There is no right to appeal to an independent body.

Vacant, Fallow and

Virgin Lands

Management Law

(2012)

2-4, 25 Defines vacant, fallow and virgin land and creates a committee made up of

ministry personnel and other ‘suitable persons’, charged with authorising

the right to use vacant fallow and virgin land. It has the vague duty to work

with relevant government departments to protect farmers utilizing land

without formal recognition.

Right to

adequate

standard of

living, including

the right to

adequate

housing, food,

water and

sanitation

A/70/412 para. 62; A/68/397 para. 29;

A/HRC/25/64 para. 27

Land Acquisitions Act

(1894)

4, 6 (1),

7, 16

Allows the President to order the confiscation of land if in his opinion it ‘is

needed or is likely to be needed for any public purposes’ subject to a

procedure and compensation.

A/70/412 para. 62

Other

Penal Code 377 Imposes penalties of up to ten years’ imprisonment for sexual intercourse

‘against the order of nature’, which includes consensual same sex conduct.

Right to

privacy,

equality and

non-

discrimination

A/68/397 paras. 43 and 89(a)

497, 498 Imposes penalties of up to five years’ imprisonment for adultery when

committed by a man.

Right to privacy

Former Presidents’

Security Law (2016)

10 Gives former Presidents immunity from judicial prosecution for measures

taken during their term of service ‘in accordance with the law’.

Right to remedy

and

accountability

A/HRC/31/71 para. 12

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Myanmar National

Human Rights

Commission Law

(2014)

5, 8, 9 Grants authority to a Selection Board containing a significant number of

Government officials to adopt its own undefined procedures for

nominating 30 prospective Commission members. The President, in

conjunction with the speakers of both houses of Parliament, selects up to

15 Commission members from this shortlist and also appoints the Chair

and Vice Chair.

Not fully

compliant with

Paris Principles

on composition,

independence

and pluralism

A/HRC/31/71 para. 74

46 The law is silent on how the Commission’s budget is developed.