Burma’s Human Rights Commission Courts Credibility Ahead of UN Review

By David Hopkins 27 October 2015

Burma’s human rights record over the past four and a half years will be put under the microscope next month when the country is scheduled for review by the UN Human Rights Council, just two days before a highly anticipated general election.

During the council’s Universal Periodic Review (UPR), the country will be assessed on developments since its inaugural review in January 2011, based on information provided by the government; UN human rights experts, institutions and treaty bodies; and stakeholders, including NGOs.

Among a long list of achievements cited in its report to the UN Working Group on the UPR earlier this year, the government highlighted the establishment of the Myanmar National Human Rights Commission (MNHRC) by presidential decree in September 2011 which, according to Naypyidaw, was fulfilling its mandate “independently and effectively.”

The original 15-member commission, which since its inception has been headed by Win Mra, a former ambassador to the UN in New York under the previous military junta, was buttressed by a legislative mandate, passed by Parliament in March 2014, and reconstituted with 11 commissioners in September of that year.

However, far from viewing the MNHRC as the jewel in Burma’s rights-respecting crown ahead of next month’s UPR, many activists maintain it lacks autonomy and has failed to investigate egregious abuses.

Commission chair Win Mra is cognizant of such critiques and, while refuting some faults, others, he maintains, are being addressed.

“We are trying to be as independent as our mandate has given us. If you look at it from the criteria that are contained in the Paris Principles, I think we do comply with this principle of independence,” Win Mra told The Irrawaddy, citing the set of standards internationally accepted as setting out the minimum benchmarks to which national human rights institutions (NHRIs) should abide.

“When we first established the human rights commission, there were 22 seconded members from three government ministries. But with the enactment of the [enabling] law, they have all returned to their mother unit except one assistant director who is looking after the budget,” he added.

“Contrary to the allegations, staff are recruited independently and work independently.”

The Swedish Raoul Wallenberg Institute (RWI) has been working to strengthen the MNHRC since 2012. The institute’s Rangoon-based program officer Sue Anne Teo said building the capacity of any fledgling NHRI was a long-term undertaking, and particularly so given the “complex human rights challenges” facing Burma.

Burma’s commission started from a low base, as an evaluation report of RWI’s work with the MNHRC, commissioned by the Swedish International Development Cooperation Agency (SIDA) and issued late last year, makes clear. It noted that even after almost half of the original staff members had been replaced, “none of them could be said to have had any experience of either working for human rights issues or familiarity with them.”

Reform of the body has not yet gone far enough, according to rights groups. Among the 47 individual or joint submissions made by civil society groups to the UPR mechanism, criticism of the MNHRC was a common thread, including: that the appointment of commission members lacked transparency; that it included officials from the previous regime; that it failed to ensure the confidentiality of complainants; and that funding was tied to the executive, thus compromising its independence.

Teo identified reform of the commission’s complaint handling system as a key priority for RWI, including improving how the commission identifies and prioritizes human rights issues, response times and how to approach alleged violators. Moving to a computerized system, Teo said, would also ensure the work “can be sped up, properly recorded and followed through and also ensures the security and integrity of information provided by complainants.”

The commission had received a total of 1,300 complaints as of August 2015, according to Win Mra, with the majority concerning land issues. In 2014, a total of 1,839 complaints were received, with over half pertaining to land issues.

The commission’s complaints mechanism was heavily criticized after Brang Shawng, an ethnic Kachin man, was charged with defamation by the military after he sent a letter to the MNHRC alleging that government soldiers killed his 14-year-old daughter, Ja Seng Ing, in September 2012.

In a December 2014 open letter to President Thein Sein, six high-profile international human rights organizations said the case called into question the commission’s ability to properly receive and handle complaints and protect complainants. The groups also pointed out that the case represented a breach of the MNHRC’s founding law which states that third parties should not “victimize, intimidate, threaten, harass or otherwise interfere with” persons that provide information to the commission.

‘Best in the Region’

The MNHRC Law enacted in March last year was broadly accepted as a step in the right direction, legally enshrining the commission’s mandate—a stipulation of the Paris Principles—and removing the possibility of arbitrary annulment at the whim of the executive.

Win Mra said the law was “one of the best in the region,” an appraisal largely echoed by RWI.

But the law, too, has its share of critics. In a September 2014 joint report, Burma Partnership and Equality Myanmar called for the legislation to be amended to ensure that funding for the MNHRC comes from the Parliament, not the President’s Office; to establish an independent mechanism for staff dismissal procedures; and to allow the commission to concurrently investigate cases that are under court proceedings.

At least one of those recommendations is being addressed, according to Win Mra, who said the commission had already negotiated an “in principle” agreement with the Ministry of Finance to obtain funding directly from Parliament.

The issue of enabling the commission to investigate cases that are before the courts is not unique to Burma’s commission, Teo told The Irrawaddy.

“In fact, most NHRIs have this legal distinction so as to prevent competing jurisdictions where the same matter should not be addressed by two different fora at the same time,” she said.

“Having said that, if there are clear distinctions that can be made on a particular issue, for example if the matter before the court concerns illegal land acquisition and the Commission is tasked to look into possible excessive use of force involved in that land acquisition, this would not be an overlap.”

Burma Partnership’s coordinator Khin Ohmar cautioned that “a good-looking founding law” was no guarantee of good practice, and pointed to last year’s reconstitution of the MNHCR’s membership “in secrecy” and without the knowledge of several subsequently removed members, as an example.

“The institutional legitimacy of NHRIs is ultimately tested through their performance, and in particular, their impact or ability to render justice to victims of violations and abuses,” Khin Ohmar said.

“I think it is legitimate to expect that the MNHRC, amply endowed with the necessary assortment of powers and functions provided in its enabling law, [should] utilize them fully and be an ‘activist in the corridors of government.’”

Limited Progress

Ohmar concedes that, on the surface, the MNHRC appears stronger in 2015; a possible conscious response in what is a key year, with the commission due to have its accreditation assessed by the International Coordinating Committee (ICC) for National Human Rights Institutions next month.

The ICC accreditation system will determine whether the MNHRC is in compliance with the Paris Principles.

By at least one measure, the MNHCR has noticeably increased its output on previous years, with 14 statements issued in English thus far in 2015, compared with just 16 statements released from 2012-14.

Though often appearing perfunctory and containing only tepid recommendations, if at all, the statements offer valuable snapshots into some of the commission’s activities, including its visits to several prisons and detention centers in 2015.

For example, the commission documented disturbing conditions at prisons visited in Shan State, Arakan State, Mandalay Division and Rangoon Division—sites seldom held to public scrutiny. At Insein Prison in the northern outskirts of Rangoon, the MNHRC found there were 400 inpatients in the 40-bed capacity prison hospital; no doctor assigned to the women’s hospital of 44 inpatients; and that the prison itself was over capacity by almost 3,000 inmates.

The commission also drew a rare commendation from lawyers and activists last month after calling for action against police personnel who “failed to follow the procedures” during the violent dispersal of student protesters at Letpadan in Pegu Division on March 10.

However, such calls for justice have been the exception rather than the rule. In a May statement, following the acquittal of two soldiers implicated in the killing of journalist Par Gyi in October last year, the MNHCR said only that the military court was convened in accordance with the law. Rights groups criticized a separate report by the commission into Par Gyi’s death in late 2014 as inadequate and neglectful of key evidence.

“Our duty is not to point fingers,” Win Mra told The Irrawaddy. “We investigate and give findings to the government authority and we do give recommendations. For example, in the case of Par Gyi, we recommended that it be tried in a civil court. We are not the judge; we do not have judicial authority at all. We can only make recommendations to the authorities.”

Asked to relate some of the commission’s work in 2015, MNHRC vice chairperson Sit Myaing pointed to several pieces of draft legislation, including on child rights, older persons and prisons, respectively, that the commission reviewed for their conformity to international human rights standards.

The commission also reviewed the controversial package of four so-called “race and religion protection laws,” which enforce restrictions on interfaith marriage, birth spacing, religious conversion and polygamy, and were widely condemned as discriminatory against women and religious minorities.

On this score, Win Mra admits the commission’s effectiveness was negligent, with the laws passing practically unchanged despite the MNHRC highlighting certain articles that were “not in agreement” with the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

A key focus of the MNHRC’s work in 2015 has centered on human rights promotion activities, including visits to government ministries and the defense college in Naypyidaw.

But some have questioned the immediate impact of human rights workshops, while recurrent rights violations continue largely unabated. Such activities, said Khin Ohmar, “while commendable and important, are at dissonance with the reality in the country.”

“There needs to be public ownership and scrutiny of the MNHRC for the body to remain accountable in its work and functioning. Otherwise, the MNHRC will firmly cement its place as an alibi institution,” she said.