The United Nations, Human Rights Council – 14th March 2017
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1. The present report is submitted by the Special Rapporteur on the situation of human rights in Myanmar, Yanghee Lee, to the Human Rights Council pursuant to its resolution 31/24, further to her reports to the Council in March 2016 (A/HRC/31/71) and to the General Assembly in August 2016 (A/71/361). In the present report, the Special Rapporteur addresses the human rights challenges facing the new Government, which assumed power in March 2016, and acknowledges the progress it has made.
2. The Special Rapporteur conducted her fifth official visit to Myanmar from 9 to 20 January 2017.1 While she requested 14 days, the Government allowed for only a 12-day visit, during which she travelled to parts of Kachin, Mon and Rakhine StateRakhine States, as well as to Yangon and Nay Pyi Taw. The Special Rapporteur expresses appreciation for the Government’s cooperation, particularly in respecting her request to meet community members in villages and in camps for internally displaced persons in Rakhine State without close monitoring of state government officials and security personnel. However, she regrets the repeated short-notice responses to her requests to visit specific locations. That was a recurring pattern, with last-minute denials resulting in rearrangement of her programme also at the last minute, thus preventing full optimization of the limited time.
3. From the meetings and conversations held by the Special Rapporteur with the State Counsellor, various government officials and parliamentarians, she acknowledges the genuine commitment and dedication of the Government in its efforts to improve the lives of all in Myanmar. However, that commitment has yet to be fully translated into real actions that are felt on the ground, as evidenced by the feelings of hopelessness that ordinary people have begun to express.
B. Democratic space
23. The Special Rapporteur acknowledges the strides that Myanmar has made in opening up democratic space in recent years. However, she remains concerned about the continuing application of problematic legal provisions, particularly in politically sensitive cases, to intimidate and silence human rights defenders, lawyers, journalists and members of civil society, including through heavy surveillance, arrest and prosecution. The killing of constitutional legal expert Ko Ni on 29 January 2017 sends a particularly chilling message to those who fight for, and are vocal on behalf of, the rights of others.
24. As previously highlighted, a number of cases have yet to be conclusively resolved several years on, such as the killing of reporter Ko Par Gyi in October 2014. There is also increasing risk to those active in raising environmental and land rights issues with activist Naw Chit Pan Daing and journalist Soe Moe Tun killed in November and December 2016 respectively.
25. The Special Rapporteur expressed concerns during her meetings regarding the termination of Fiona MacGregor’s contract with the Myanmar Times reportedly for having written about alleged violations relating to the security operations in Rakhine State. Apparently, she had been particularly targeted for actively reporting on sexual violence cases allegedly implicating security forces.
26. The Special Rapporteur has been informed of approximately 170 individuals imprisoned for peacefully exercising their rights to freedom of opinion and expression, and of association and assembly.4 She finds the increasing use of section 66 (d) of the Telecommunications Act (2013) particularly worrying, with more than 45 cases reported, most of them in the past year.
27. The Special Rapporteur met individuals during her January 2017 visit who had been detained under that provision for expressing opinions against the military, including Hla Phone (Kyat Pha Gyi) who has been sentenced to two years’ imprisonment,5 and Myo Yan Naung Thein, whose case is still being heard. On 6 January 2017, two days before the Special Rapporteur arrived in Myanmar, the Chief Executive Officer of the Eleven Media Group, Than Htut Aung, and Chief Editor of the Daily Eleven newspaper, Wai Phyo, were granted bail following charges under section 66 (d) over an editorial accusing the Yangon Chief Minister of bribery, after having three previous bail applications denied. She was informed of additional cases involving comments against President Htin Kyaw and State Counsellor Aung San Suu Kyi, but due to time constraints was unable to visit the relevant detention facilities.
28. The Special Rapporteur also met Htin Kyaw and Khaing Myo Tun, who were charged under section 505 (a) and (b) of the Penal Code respectively, concerning allegations made against the military. In the case of Htin Kyaw, he was also charged under the 2011 Peaceful Assembly and Peaceful Procession Law and sentenced to two months’ imprisonment in February 2017.
29. The Special Rapporteur has already expressed concern that the 2011 Peaceful Assembly and Peaceful Procession Law does not allow for spontaneous gatherings. Nonetheless, it is puzzling that a lone medical student was reportedly arrested on 4 February 2017 and charged under that law for expressing his support for peace as the law defines an assembly as a gathering of “more than one person”.
84. Addressing the apparent climate of impunity will be vital for the new Government moving forward. Impunity arises from a failure by States to meet related obligations, including to investigate violations; take appropriate measures in respect of the perpetrators by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; provide victims with effective remedies; and take other necessary steps to prevent the recurrence of violations.19 Pervasive impunity also emboldens acts of retaliation and reprisals by those implicated in alleged abuses and violations.
85. Currently, existing policies, laws and avenues for redress appear to favour those in positions of power rather than ensure that everyone is equal before the law and has an equal opportunity to have legitimate grievances addressed. Laws continue to be misused to stifle freedom of association and assembly, and to subvert freedom of opinion and expression. Individuals who have lived on land for generations continue to face eviction without proper safeguards for projects that bring them little or no benefits. Conflict, which continues to have a devastating effect on civilians, sometimes appears to be focused around resource-rich areas or near lucrative projects.
86. The Special Rapporteur reminds the Government of the distinction between rule of law and rule by law, as far too often issues of concern are explained away as having been dealt with “according to the law”. Too often also cases of abuses and serious, even grave, human rights violations that potentially involve the State as the perpetrators, are closed with no explanation or dealt with in secrecy under the pretext of national security. Alternatively, a plethora of committees or commissions are set up to tackle the same issue with duplicative mandates, insufficient guarantees of independence and impartiality, and confusing, inconclusive and delayed outcomes. Where the State is unable to discharge its primary duty of investigating violations, taking appropriate measures against perpetrators and providing victims with effective remedies, it must seek assistance to do so. When it is unwilling to do so, the international community must step in and step up.
3 See the updated set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1), principle 19.
4 See Assistance Association for Political Prisoners (Burma), “January Chronology 2017”. Available at http://aappb.org/2017/02/aapp-b-monthly-chronology-of-jan-2017-and-current-political-prisoners-list/.
5 Hla Phone was charged under that provision and two others.
19 See the updated set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1), principle 1.
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