1. The mandate of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar has been described in each of the Special Rapporteur’s previous reports to the General Assembly (annexes to documents A/47/651, A/48/578, A/49/594 and Add.1, A/50/568, A/51/466, A/52/484, A/53/364 and A/54/440) and to the Commission on Human Rights (E/CN.4/1993/37, E/CN.4/1994/57, E/CN.4/1995/65 and Corr.1, E/CN.4/1996/65, E/CN.4/1997/64, E/CN.4/1998 and E/CN.4/1999/35). The mandate was extended for a further year by resolution 1999/17 of the Commission on Human Rights, which requested the Special Rapporteur to submit an interim report to the General Assembly at its fifty‑fourth session and to report to the Commission at its fifty-sixth session, keeping a gender perspective in mind when seeking and analysing information (para. 8). Top
I. ACTIVITIES OF THE SPECIAL RAPPORTEUR
2. On 4 October 1999, the Special Rapporteur presented his interim report on the situation of human rights in Myanmar to the fifty-fourth session of the General Assembly (A/54/440) and made an introductory statement. While in New York, he had discussions with representatives of various Governments and non-governmental organizations as well as individuals who provided him with information on the situation of human rights in Myanmar.
3. It should be recalled that, since his appointment in June 1996, the Special Rapporteur has yet to be allowed by the Government of Myanmar to examine the situation in situ and to meet with government officials and other persons relevant to the effective exercise of his mandate.
4. It should be noted that, in response to the submission of his last interim report to the General Assembly, the Permanent Representative of the Union of Myanmar to the United Nations reiterated his Government’s rejection of the appointment of the Special Rapporteur, on the ground that it constituted an interference in the internal affairs of Myanmar. He expressed, as on previous occasions, his disagreement with the contents of the Special Rapporteur’s report. He stated however, that his Government did not rule out a visit by the Special Rapporteur. Similar indications had, year after year, been given in the General Assembly and the Commission by the Permanent Representative of Myanmar. To date no positive steps have been taken to allow such a visit. The Special Rapporteur reiterates his regret that in the nearly four years since his appointment, the Government of Myanmar has not responded to the repeated calls of the General Assembly and the Commission on Human Rights for cooperation with the Special Rapporteur and to authorize his visit. In spite of the lack of cooperation from the authorities in Myanmar, and as in previous years, the Special Rapporteur has received considerable assistance and information from governmental, intergovernmental and non-governmental sources. He has also received relevant information from individuals about the human rights situation in Myanmar.
5. The Special Rapporteur has proposed to visit two neighbouring countries in order to conduct interviews of refugees and other displaced persons from Myanmar in those countries. The Special Rapporteur expects that the mission could take place in the course of this year.
6. The present report is based upon information received by the Special Rapporteur up to 15 December 1999 and is to be read in conjunction with his interim report to the General Assembly. Top
II. THE EXERCISE OF CIVIL AND POLITICAL RIGHTS
A. Measures adversely affecting democratic governance
7. In his report to the fifty-fourth session of the General Assembly (A/54/440), the Special Rapporteur indicated that opposition political parties continued to be subject to intense and constant monitoring by the regime and to severe restrictions on their activities; their members have been prohibited from leaving their localities and subjected to intimidation, personal harassment and harassment of their families, and arrest and imprisonment, particularly in the case of members of the National League for Democracy (NLD), the object being to procure the resignation of those members.
8. The Special Rapporteur continues to receive reports indicating that the campaign of harassment and intimidation continues to be conducted against high-ranking members of NLD in general and the rank and file membership in particular for the purpose of procuring their resignations. It would appear that Aung San Suu Kyi and other NLD leaders are able to meet but always subject to restrictions and close monitoring. Public meetings are not allowed. As a result of forced resignations, particularly among members of executive committees, a number of NLD branch offices have closed down or were forced to close. By March 1999 there had been over 50 branch closures. Moreover, a number of sources reported in September 1999 that many members of the NLD, including MPs-elect, and other activists (in the hundreds) were still in prison or were under arrest or some form of detention while others were subject to restrictions on their freedom of assembly and movement and to systematic monitoring.
9. Restrictions imposed by the regime on ethnic opposition parties are reported to continue unabated. For instance, two senior members, Naing Tun Thein (82) of the Mon National Democratic Front and Kyin Shin Htan of the Zomi National Congress, two of the ethnic opposition parties in Myanmar, were arrested shortly after they met with the Special Envoy of the United Nations Secretary-General, Mr. Alvaro de Soto, during his visit to Myanmar from 14 to 18 October 1999. No official reason has been given for their detention. Another ethnic leader, Doo‑wah U Zaw Aung, of Myanmar’s Kachin nationality and the MP-elect for the township of Waingmaw, disappeared at the beginning of August. It is reported that his fate or whereabouts remain undetermined.
10. Reports indicate that three ethnic leaders were arrested in September 1998 for supporting the Committee Representing the People’s Parliament formed by NLD to speak on behalf of Myanmar’s elected parliamentarians. Two of them were subsequently released in order to receive medical treatment, but the third, Saw Mra Aung (82) from the Arakan League for Democracy, has remained under arrest for more than a year.
11. According to news bulletins received by the Special Rapporteur, the authorities in Kachin State ordered the branch of the Shan National League for Democracy (SNLD) in Waingmaw township to close down in November . No official reasons were given. It is further reported that in August two MPs-elect from Labutta township, U Kyi Win, a Supreme Court lawyer, and Aye Kyu, along with two other township officers of the NLD, were sentenced to two years in prison in Myaung Mya for their efforts to secure the release of four other township branch members. The four were sentenced to five years’ imprisonment.
12. Regular “resignations” of NLD members continue to be announced in The New Light of Myanmar, Myanmar TV and other media channels, all controlled by the regime, in furtherance of its systematic policy of intimidation and repression directed against NLD and its supporters. According to sources inside Myanmar, about 48,000 NLD members have been reported as resigning since the campaign began a year ago. A large majority of these resignations are reported to have been registered in Irrawaddy, Mandalay and Pegu Divisions.
13. The Special Rapporteur has also been apprised of daily features published in the Government-controlled press belittling and vilifying the leadership of NLD, in particular Aung San Suu Kyi, inciting the public to treat them as enemies and to destroy them, presenting them as stooges of foreign Powers, jeopardizing stability and progress, and as being destructive agents.
14. The Special Rapporteur wishes to recall the pledge made by the authorities of Myanmar since 1990 after the general elections, in particular in Declaration No. 1/90 (see A/51/466, chap. III.C), and similar subsequent assurances often repeated in international forums. With a view to redeeming that pledge, to achieving national reconciliation and to enabling Myanmar to fulfil its obligations under the Charter of the United Nations and the Universal Declaration of Human Rights, the authorities should respond to the calls of the General Assembly and the Commission, put an end to the hostile policy they have carried on against their own people and engage in a substantive dialogue with the political leaders in the opposition, including Aung San Suu Kyi, and representatives of the ethnic groups.
B. Extrajudicial, summary or arbitrary executions
15. The Special Rapporteur on extrajudicial, summary or arbitrary executions has, during the last reporting period (November 1998-October 1999), transmitted three communications to the Government of Myanmar regarding 11 allegations of violations of the right to life of individuals, most of whom were reportedly porters killed by troops of the State Peace and Development Council (SPDC).
16. More specifically, one of the communications concerned a group of women who were allegedly raped and shot by an SPDC commander near the villages of Wan Wawn and Wan Ek, Nawng Kaw Tract, Nam-Zarng Township, in January 1999. Further, it is also reported that when a civilian porter who witnessed the scene tried to intervene, the commander shot him as well. Another communication concerned a number of porters who were allegedly executed by SPDC troops on 4 December 1998 in Kae-See Township. In the third communication, information was transmitted to the Government regarding allegations of two executions on 5 December 1998 of porters who were kicked and beaten, and finally shot, by SPDC troops because they became too weak from exhaustion and lack of food over a period of days to carry equipment.
17. On 15 November 1999, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression sent a communication to the Government of Myanmar on behalf of nine persons, two of whom are NLD MPs-elect, namely, Saung Win Latt, U Hla Pe, U Zeya, U Moe Thu, U Win Tin, U Myo Mynt Nyen, U Sein Hlaing and U Aung Tin and U Boe Thin, requesting information about the legal basis of the charges and offences of which they were convicted.
D. The administration of justice
18. According to a recent study conducted by the Centre for the Independence of Judges and Lawyers (CIJL) of the International Commission of Jurists (ICJ) and published in its annual report, Attacks on Justice, the rule of law in Myanmar has malfunctioned since the military Government began its rule in 1988, as the Special Rapporteur and his predecessor have found in their reports over the past several years.
19. The study recalls that in September 1988, Law No. 2/88, the Judiciary Law, was enacted by the regime. Under that law, a Supreme Court was established, composed of a Chief Justice and “not more than five Judges”. Lower courts, the state or division and township courts, are established by the Supreme Court. Military tribunals, established in 1989 for the purpose of trying martial-law offenders under special summary procedures, were abolished in September 1992.
20. The military regime appoints the Judges of the Supreme Court. The Supreme Court selects judges for the lower courts, but requires the approval of the regime. The Supreme Court is further in charge of supervising the lower courts. The Judiciary Law does not contain any provisions on the security of tenure of judges and their protection from arbitrary removal, thus leaving such issues entirely in the hands of the military regime and, what is worse, without any guarantees provided by law by which the military regime is bound.
21. In this regard, according to the CIJL study, five Judges of the Supreme Court, namely U Kyaw Win, U Aung Myin, U Than Pe, U Tin Ohn and U Tin Htut Naing, were “permitted” by the regime to retire by Order No. 5/98. No reasons were given. It is widely believed that, because cases submitted by NLD were pending and the regime was uncertain as to how those Judges would decide the outcome, they were forced to retire.
22. The administration of justice is greatly marked by constraints which are inconsistent with judicial independence and characteristic of a military dictatorship. According to section 2 (a) of Law No. 2/88, justice is required to be administered “independently, according to law”. In reality, however, the judiciary is far from independent. This situation results from the suspension of the Constitution and the numerous decrees made by the regime the object of which is to arrogate to itself complete control over the whole political life of the nation and to restrict all civil freedoms that are likely to interfere with that objective.
23. In addition to the military Government’s unrestricted powers in the appointment of judges, the courts are powerless to protect the rights of victims of oppression. This is so because a great number of decrees have been promulgated by the regime for the purpose of repressing political activity and freedom of thought, expression, association and movement, among others. Moreover, emergency laws are still resorted to. These, in Myanmar, are similar to those devised in colonial times, long before the adoption of the Universal Declaration and the human rights treaties which have since followed. The courts have no jurisdiction to challenge or to discard this repressive legal arsenal. For this reason, the courts have become a mere instrument to provide formal and apparent, but clearly not substantive, legitimacy to the regime’s systematic repression of the civil and political rights which constitute the very basis of the rule of law, democracy and democratic governance.
24. Basic guarantees of due process and judicial control over detention do not in practice exist, even in cases involving violations of the provisions of the law that criminalize political activity and the exercise of civil rights for that purpose. For example, without the permission of the intelligence organs, judges cannot even let the family and counsel of the accused know what sentence has been passed. In many cases, the accused is kept in ignorance of the section of law under which he is charged. There have been reported instances where Military Intelligence has passed sentences orally at the time of arrest, before any trial had taken place. More often than not trials are held in camera.
25. According to the CIJL study referred to above, since the assumption of power by the regime in 1988, the freedom of individual lawyers to exercise their profession and defend political opponents of the regime has in practice been severely suppressed. The Lawyers’ Associations, the voice of the profession, have been silenced. The Bar Council has not been independent since 1989, and is instead supervised by the Attorney-General and is staffed by government officials.
26. Many of the decrees promulgated by the State Law and Order Council (SLORC), as it then was, remain in force today, including Order No. 2/88 which prohibits public gatherings of more than five people and No. 8/88 which, in its effects, prohibits debate and criticism.
27. In cases other than those involving political activity, some basic due process rights, including the right to a public trial and to be represented by a defence attorney, are generally respected. Defence attorneys are permitted to call and cross-examine witnesses, but their primary role would, in practice, be to bargain with the judge to obtain the least severe sentence possible for their clients.
28. During the past few years many lawyers have had their licences withdrawn for involvement, alleged or real, in politics. Lawyers who may have been arrested, imprisoned or released prior to 1997 reportedly remain unable to practise their profession. For example, according to CIJL, Myint Aung (lawyer, licence No. 3277) was arrested and charged under section 2 (1) (a) of the Arms Act. His trial was heard on 16 and 17 May 1990 at Yangon Division Joint Magistrates Court No. 12 and he was sentenced to two years’ imprisonment with hard labour. He was prevented from practising law as of 4 November 1993, and his licence to practise was withdrawn. A similar fate befell U Toe Aung (lawyer, licence No. 1049). He was charged under the notorious article 5 (j) of the Emergency Act 1950 and sentenced to five years’ imprisonment on 7 February 1991. His licence too was withdrawn.
29. CIJL reports that some 50 lawyers are unable to practise their profession owing to similar treatment by the regime. It also reported that lawyers are often reluctant to take on cases involving human rights abuses by Military Intelligence (MI) Officers or soldiers for fear of arrest, retaliation or harassment by the authorities and the removal of their right to practise.