Transcript Myanmar National Human Rights Commission

Myanmar National Human
Rights Commission
What Do We Know?
The Myanmar National Human Rights
Commission (MNHRC) was established under
Union Government's Notification No.
34/2011 dated 5 September 2011
What Do We Know?
Under Union Government's Notification No. 34/2011 members of the MNHRC are:
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U Win Mra, Chairman, Ambassador (Retd)
U Kyaw Tint Swe, Vice-Chairman, Ambassador (Retd)
U Tun Aung Chein, Member Professor (Retd), Department of History
U Hla Myint, Member Ambassador (Retd)
U Than Swe, Member Director-General (Retd), Forest Department
Dr Nyan Zaw, Member, State Medical Officer (Retd)
Dr Daw Than Nwet, Member Professor (Retd), Department of Law
Daw Saw Khin Gyee, Member Professor (Retd), Department of International
Relations
U Tin Nyo, Member, Director-General (Retd), Basic Education Department
U Kwa Hteeyo, Member, State Law Officer (Retd)
U Khin Maung Lay, Member, Director (Retd), Labour Department
U Lapai Zawgun, Member, Consul (Retd)
U Nyunt Swe, Member Deputy Director-General (Retd), Ministry of Foreign
Affairs
Daw San San, Member, Director (Retd), Labour Department
U Sit Myaing, Secretary, Director-General (Retd), Social Welfare Department
What Do We Know?
Responsibilities and entitlements of the MNHRC are as follows (according
to a letter of the MNHRC):
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To accept complaint letters on violation of citizens' fundamental rights
stipulated in the Constitution of the Republic of the Union of Myanmar, to
investigate the complaints and to forward the findings of investigation to
relevant government departments and organs so as to take necessary
action
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To investigate information acquired on violation of citizens' fundamental
rights and to forward the findings of investigation to relevant government
departments and organs so as to take necessary action
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To assess whether rights defined in international human rights
conventions to which Myanmar is a party are fully enjoyed, and to advise
on Myanmar's reports to be submitted to international human rights
organizations
What Do We Know?
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To assess whether Myanmar should join the international human rights
conventions to which Myanmar is not yet a party, and to present
recommendation on it
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To contact and work with UN agencies and partner organizations both
inside the country and abroad which are working for promotion and
protection of human rights
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To assist on subject matter regarding human rights capacity building
programs and research programs
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To initiate and assist in raising public awareness on human rights
promotion and protection
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To carry out tasks entrusted occasionally by the state President with
regard to human rights promotion and protection
What Do We Know?
• The Myanmar National Human Rights Commission shall report directly to
the President on its conducts and human rights developments in annual
reports
• When carrying out its functions, the Myanmar National Human Rights
Commission can call upon relevant persons for questioning. It can call for
viewing of relevant documents with the exception of those particularly
prohibited under state requirements
• No one can sue the Myanmar National Human Rights Commission,
Commission members or those assigned tasks by the Commission,
whether in criminal proceedings or in civil proceedings, for executing in
sincerity responsibilities and entitlements ascribed in this notification
• The tenure of the Commission Chairperson and members shall be the
same as that of the state President, and they can serve for two terms
Assessing MNHRC’s Compliance with
The Paris Principles
• No official information about the procedure, mandate, and
responsibilities of the commission has been made accessible to the
public and, in particular, victims of human rights violations
• The entire process of establishing the NHRC has been everything
but transparent
• The lack of transparency and the little information known about
the MNHRC are in themselves violations of the Paris Principles
• Assessing the MNHRC can therefore only be done against the few
information available, which are enough to conclude that the
commission is not independence and effective and does not
comply with the Paris Principles
Mandate of The MNHRC
The mandate of a NHRC must be set out in the constitution or in legislation
• MNHRC was established by a Government Notification
• Its mandate has no legal foundation, it is only layed out in a MNHRC’s
letter
The mandate must be clearly defined, as broad as possible and based on
human rights standards
• Only little information is available in a one page letter of the MNHRC
• MNHRC’s mandate is based on the 2008 Constitution which itself
violates the rights of the people of Burma
The mandate must be to « promote and protect » human rights
• MNHRC’s mandate does not stipulate the « promotion and protection »
of human rights
Responsibilities of the MNHRC
NHRIs should have the power to comment on existing and draft laws
• The MNHRC does not have this responsibility
NHRIs should have the power to monitor the national human rights
situation without prior approval and to freely publicize its advises
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The MNHRC needs to require prior presidential authorization for
prison visits and interviews with prisoners are conducted in the
presence of prison officials
• The MNHRC hasen’t clarify whether it can monitor private and public
bodies such as the police and the Burma Army
• The Chairman of the MNHRC stated that it will not monitor and
investigate cases of human rights violation in ethnic conflic affected
areas
Responsibilities of the MNHRC
NHRIs should have the power to co-operate with regional
international bodies
NHRIs should not submit reports to international bodies on
behalf of a government but rather on their own behalf
• MNHRC has the responsibility to “advise on Myanmar’s
reports to be submitted to international human rights
organisations.”
Responsibilities of the MNHRC
Receiving complaints from individuals or groups
Many information about the capacity of the MNHRC to receive complaints
remain unknow while they should be clearly detailed in a founding law
• Can civil society organisations make complaints on behalf of victims?
• Has the MNHRC put in place protection mechanisms for the victims
and witnesses?
• Does the MNHC have the power to recommend reparation for
victims?
The MNHRC should send its reports to the public as a whole and
should include complaints received and investigated, monitoring and
advice given to the government
Composition and Pluralism
The terms and conditions of the appointment and dismissal
of members should be transparent and set out in the
founding law of the NHRI
The method of appointment should involve the parliament
and ensure that representatives of the civil society have a
meaningful say in the process
• MNHRC’s members were choosen by the President,
without any consultation and transparency regarding the
selection criteria and process
Composition and Pluralism
Members should have the professional qualifications and
experience to perform their job and a personal history of
integrity, competence and independence
The composition of NHRIs should reflect pluralism and include
members from different sector of the society
• The MNHRC’s 15 members are all retired civil servants
• There are no representatives of NGOs, trade unions etc.
• The Chairman and Vice-Chairman and other members have
been defending the regime against allegations of human rights
violations for years in their capacity of former ambassador
Autonomy and Independence
Legal Autonomy
The constitutional provision or law that establishes
an institution should give it a distinct legal
personality
• The MNHRC was established by a Government
Notification and has no legal personality
Autonomy and Independence
Operational Autonomy
NHRIs should have the power to draft their own rules of procedures that
cannot be modify by an external authority
• The MNHRC’s rules of procedure are being examined by the judiciary
and are awaiting approval by the council of ministers
NHRIs should not answer to the government but to an authority other
than the executive, most usually the legislature
• The MNHRC “shall report directly to the President on its conducts.”
NHRIs should be able to investigate and monitor the human rights
situation at their own initiatives and should not receive instructions
from the government
• The MNHRC will “carry out tasks entrusted by the State President.”
Autonomy and Independence
Financial Autonomy
An NHRI should have control over its finances and how they
may be used
Funds need to be adequate and sufficient for the NHRI to
carry out its mandate
The parliament should approve the budget
• No information about the MNHRC’s finances is available
Conclusion
• The little information known about the MNHRC is
enough to conclude that it is not an independent and
effective institution and does not comply yet with
the Paris Principles
• The MNHRC needs to make information about its
mandate, procedures and responsibilities available
to the public, especially victims of human rights
violations