Myanmar Myanmar NationalNational Human Human Rights CommissionRights Commission

Prepared by Human Rights Prepared by Human Rights EducationEducation Institute of Burma (HREIB) Institute of Burma (HREIB) and Burma Partnership (BP)and Burma Partnership (BP)

What Do We Know?What Do We Know?

The Myanmar National Human Rights The Myanmar National Human Rights Commission (MNHRC) was established under Commission (MNHRC) was established under Union Government's Notification No. Union Government's Notification No. 34/201134/2011 dated 5 September 2011 dated 5 September 2011

What Do We Know?What Do We Know?Under Union Government's Notification No. 34/2011Under Union Government's Notification No. 34/2011 members of the MNHRCmembers of the MNHRC are: are:

• U Win MraU Win Mra, Chairman, Ambassador (Retd), Chairman, Ambassador (Retd)• U Kyaw Tint SweU Kyaw Tint Swe, Vice-Chairman, Ambassador (Retd), Vice-Chairman, Ambassador (Retd)• U Tun Aung CheinU Tun Aung Chein, Member Professor (Retd), Department of History, Member Professor (Retd), Department of History• U Hla MyintU Hla Myint, Member Ambassador (Retd), Member Ambassador (Retd)• U Than SweU Than Swe, Member Director-General (Retd), Forest Department, Member Director-General (Retd), Forest Department• Dr Nyan ZawDr Nyan Zaw, Member, State Medical Officer (Retd), Member, State Medical Officer (Retd)• Dr Daw Than NwetDr Daw Than Nwet, Member Professor (Retd), Department of Law, Member Professor (Retd), Department of Law• Daw Saw Khin GyeeDaw Saw Khin Gyee, Member Professor (Retd), Department of International , Member Professor (Retd), Department of International

RelationsRelations• U Tin NyoU Tin Nyo, Member, Director-General (Retd), Basic Education Department, Member, Director-General (Retd), Basic Education Department• U Kwa HteeyoU Kwa Hteeyo, Member, State Law Officer (Retd), Member, State Law Officer (Retd)• U Khin Maung LayU Khin Maung Lay, Member, Director (Retd), Labour Department, Member, Director (Retd), Labour Department• U Lapai ZawgunU Lapai Zawgun, Member, Consul (Retd), Member, Consul (Retd)• U Nyunt SweU Nyunt Swe, Member Deputy Director-General (Retd), Ministry of Foreign Affairs, Member Deputy Director-General (Retd), Ministry of Foreign Affairs• Daw San SanDaw San San, Member, Director (Retd), Labour Department, Member, Director (Retd), Labour Department• U Sit MyaingU Sit Myaing, Secretary, Director-General (Retd), Social Welfare Department, Secretary, Director-General (Retd), Social Welfare Department

What Do We Know?What Do We Know?Responsibilities and entitlements of the MNHRCResponsibilities and entitlements of the MNHRC are as follows are as follows (according to a letter of the MNHRC):(according to a letter of the MNHRC):

• To accept complaint letters on violation of citizens' fundamental rights To accept complaint letters on violation of citizens' fundamental rights stipulated in the Constitution of the Republic of the Union of Myanmar, to stipulated in the Constitution of the Republic of the Union of Myanmar, to investigate the complaints and to forward the findings of investigation to investigate the complaints and to forward the findings of investigation to relevant government departments and organs so as to take necessary relevant government departments and organs so as to take necessary actionaction

• To investigate information acquired on violation of citizens' fundamental To investigate information acquired on violation of citizens' fundamental rights and to forward the findings of investigation to relevant government rights and to forward the findings of investigation to relevant government departments and organs so as to take necessary actiondepartments and organs so as to take necessary action

• To assess whether rights defined in international human rights To assess whether rights defined in international human rights conventions to which Myanmar is a party are fully enjoyed, and to advise conventions to which Myanmar is a party are fully enjoyed, and to advise on Myanmar's reports to be submitted to international human rights on Myanmar's reports to be submitted to international human rights organizationsorganizations

What Do We Know?What Do We Know?• To assess whether Myanmar should join the international human rights To assess whether Myanmar should join the international human rights

conventions to which Myanmar is not yet a party, and to present conventions to which Myanmar is not yet a party, and to present recommendation on itrecommendation on it

• To contact and work with UN agencies and partner organizations both To contact and work with UN agencies and partner organizations both inside the country and abroad which are working for promotion and inside the country and abroad which are working for promotion and protection of human rightsprotection of human rights

• To assist on subject matter regarding human rights capacity building To assist on subject matter regarding human rights capacity building programs and research programsprograms and research programs

• To initiate and assist in raising public awareness on human rights To initiate and assist in raising public awareness on human rights promotion and protectionpromotion and protection

• To carry out tasks entrusted occasionally by the state President with To carry out tasks entrusted occasionally by the state President with regard to human rights promotion and protectionregard to human rights promotion and protection

What Do We Know?What Do We Know?• The Myanmar National Human Rights Commission shall report directly to The Myanmar National Human Rights Commission shall report directly to

the President on its conducts and human rights developments in annual the President on its conducts and human rights developments in annual reportsreports

• When carrying out its functions, the Myanmar National Human Rights When carrying out its functions, the Myanmar National Human Rights Commission can call upon relevant persons for questioning. It can call for Commission can call upon relevant persons for questioning. It can call for viewing of relevant documents with the exception of those particularly viewing of relevant documents with the exception of those particularly prohibited under state requirementsprohibited under state requirements

• No one can sue the Myanmar National Human Rights Commission, No one can sue the Myanmar National Human Rights Commission, Commission members or those assigned tasks by the Commission, Commission members or those assigned tasks by the Commission, whether in criminal proceedings or in civil proceedings, for executing in whether in criminal proceedings or in civil proceedings, for executing in sincerity responsibilities and entitlements ascribed in this notificationsincerity responsibilities and entitlements ascribed in this notification

• The tenure of the Commission Chairperson and members shall be the The tenure of the Commission Chairperson and members shall be the same as that of the state President, and they can serve for two termssame as that of the state President, and they can serve for two terms

Assessing MNHRC’s Compliance with Assessing MNHRC’s Compliance with The Paris PrinciplesThe Paris Principles

• No official information about the procedure, mandate, and No official information about the procedure, mandate, and responsibilities of the commission has been made accessible to the responsibilities of the commission has been made accessible to the public and, in particular, victims of human rights violationspublic and, in particular, victims of human rights violations

• The entire process of establishing the NHRC has been everything The entire process of establishing the NHRC has been everything but transparentbut transparent

• The lack of transparency and the little information known about The lack of transparency and the little information known about the MNHRC are in themselves violations of the Paris Principlesthe MNHRC are in themselves violations of the Paris Principles

• Assessing the MNHRC can therefore only be done against the few Assessing the MNHRC can therefore only be done against the few information available, which are enough to conclude that the information available, which are enough to conclude that the commission is not independence and effective and does not commission is not independence and effective and does not comply with the Paris Principlescomply with the Paris Principles

Mandate of The MNHRCMandate of The MNHRCThe mandate of a NHRC must be set out in the constitution or in legislationThe mandate of a NHRC must be set out in the constitution or in legislation

• MNHRC was established by a Government Notification MNHRC was established by a Government Notification • Its mandate has no legal foundation, it is only layed out in a MNHRC’s Its mandate has no legal foundation, it is only layed out in a MNHRC’s

letter letter

The mandate must be clearly defined, as broad as possible and based on The mandate must be clearly defined, as broad as possible and based on human rights standards human rights standards

• Only little information is available in a one page letter of the MNHRC Only little information is available in a one page letter of the MNHRC • MNHRC’s mandate is based on the 2008 Constitution which itself MNHRC’s mandate is based on the 2008 Constitution which itself

violates the rights of the people of Burmaviolates the rights of the people of Burma

The mandate must be to « promote and protect » human rightsThe mandate must be to « promote and protect » human rights

• MNHRC’s mandate does not stipulate the « promotion and protection » MNHRC’s mandate does not stipulate the « promotion and protection » of human rightsof human rights

Responsibilities of the MNHRCResponsibilities of the MNHRC NHRIs should have the power to comment on existing and draft lawsNHRIs should have the power to comment on existing and draft laws

• The MNHRC does not have this responsibility The MNHRC does not have this responsibility

NHRIs should have the power to monitor the national human rights NHRIs should have the power to monitor the national human rights situation without prior approval and to freely publicize its advisessituation without prior approval and to freely publicize its advises

• The MNHRC needs to require priorThe MNHRC needs to require prior presidential authorization for presidential authorization for prison visits and interviews with prisoners are conducted in the prison visits and interviews with prisoners are conducted in the presence of prison officialspresence of prison officials

• The MNHRC hasen’t clarify whether it can monitor private and public The MNHRC hasen’t clarify whether it can monitor private and public bodies such as the police and the Burma Armybodies such as the police and the Burma Army

• The Chairman of the MNHRC stated that it will not monitor and The Chairman of the MNHRC stated that it will not monitor and investigate cases of human rights violation in ethnic conflic affected investigate cases of human rights violation in ethnic conflic affected areas areas

Responsibilities of the MNHRCResponsibilities of the MNHRC

NHRIs should have the power to co-operate with regional NHRIs should have the power to co-operate with regional international bodiesinternational bodiesNHRIs should not submit reports to international bodies on NHRIs should not submit reports to international bodies on behalf of a government but rather on their own behalfbehalf of a government but rather on their own behalf

• MNHRC has the responsibility to “advise on Myanmar’s MNHRC has the responsibility to “advise on Myanmar’s reports to be submitted to international human rights reports to be submitted to international human rights organisations.”organisations.”

Responsibilities of the MNHRCResponsibilities of the MNHRCReceiving complaints from individuals or groups Receiving complaints from individuals or groups

Many information about the capacity of the MNHRC to receive complaints Many information about the capacity of the MNHRC to receive complaints remain unknow while they should be clearly detailed in a founding law remain unknow while they should be clearly detailed in a founding law

• Can civil society organisations make complaints on behalf of victims? Can civil society organisations make complaints on behalf of victims? • Has the MNHRC put in place protection mechanisms for the victims Has the MNHRC put in place protection mechanisms for the victims

and witnesses? and witnesses? • Does the MNHC have the power to recommend reparation for Does the MNHC have the power to recommend reparation for

victims? victims?

The MNHRC should send its reports to the public as a whole and The MNHRC should send its reports to the public as a whole and should include complaints received and investigated, monitoring and should include complaints received and investigated, monitoring and advice given to the governmentadvice given to the government

Composition and Pluralism Composition and Pluralism The terms and conditions of the appointment and dismissal The terms and conditions of the appointment and dismissal of members should be transparent and set out in the of members should be transparent and set out in the founding law of the NHRIfounding law of the NHRI

The method of appointment should involve the parliament The method of appointment should involve the parliament and ensure that representatives of the civil society have a and ensure that representatives of the civil society have a meaningful say in the processmeaningful say in the process

• MNHRC’s members were choosen by the President, MNHRC’s members were choosen by the President, without any consultation and transparency regarding the without any consultation and transparency regarding the selection criteriaselection criteria and processand process

Composition and PluralismComposition and PluralismMembers should have the professional qualifications and Members should have the professional qualifications and experience to perform their job and a personal history of integrity, experience to perform their job and a personal history of integrity, competence and independence competence and independence

The composition of NHRIs should reflect pluralism and include The composition of NHRIs should reflect pluralism and include members from different sector of the society members from different sector of the society

• The MNHRC’s 15 members are all retired civil servantsThe MNHRC’s 15 members are all retired civil servants

• There are no representatives of NGOs, trade unions etc.There are no representatives of NGOs, trade unions etc.

• The Chairman and Vice-Chairman and other members have The Chairman and Vice-Chairman and other members have been defending the regime against allegations of human rights been defending the regime against allegations of human rights violations for years in their capacity of former ambassador violations for years in their capacity of former ambassador

Autonomy and IndependenceAutonomy and Independence Legal AutonomyLegal Autonomy

The constitutional provision or law that establishes The constitutional provision or law that establishes an institution should give it a distinct legal an institution should give it a distinct legal personalitypersonality

• The MNHRC was established by a Government The MNHRC was established by a Government Notification and has no legal personality Notification and has no legal personality

Autonomy and IndependenceAutonomy and Independence Operational AutonomyOperational Autonomy

NHRIs should have the power to draft their own rules of procedures that NHRIs should have the power to draft their own rules of procedures that cannot be modify by an external authority cannot be modify by an external authority

• The MNHRC’s rules of procedure are being examined by the judiciary The MNHRC’s rules of procedure are being examined by the judiciary and are awaiting approval by the council of ministersand are awaiting approval by the council of ministers

NHRIs NHRIs should not answer to the government but to an authority other should not answer to the government but to an authority other than the executive, most usually the legislaturethan the executive, most usually the legislature

• The MNHRC “shall report directly to the President on its conducts.”The MNHRC “shall report directly to the President on its conducts.”

NHRIs should be able to investigate and monitor the human rights NHRIs should be able to investigate and monitor the human rights situation at their own initiatives and should not receive instructions from situation at their own initiatives and should not receive instructions from the governmentthe government

• The MNHRC will “carry out tasks entrusted by the State President.”The MNHRC will “carry out tasks entrusted by the State President.”

Autonomy and IndependenceAutonomy and IndependenceFinancial AutonomyFinancial Autonomy

An NHRI should have control over its finances and how they An NHRI should have control over its finances and how they may be usedmay be used

Funds need to be adequate and sufficient for the NHRI to Funds need to be adequate and sufficient for the NHRI to carry out its mandatecarry out its mandate

The parliament should approve the budgetThe parliament should approve the budget

• No information about the MNHRC’s finances is availableNo information about the MNHRC’s finances is available

ConclusionConclusion

• The little information known about the MNHRC is The little information known about the MNHRC is enough to conclude that it is not an independent and enough to conclude that it is not an independent and effective institution and does not comply yet with effective institution and does not comply yet with the Paris Principlesthe Paris Principles

• The MNHRC needs to make information about its The MNHRC needs to make information about its mandate, procedures and responsibilities available mandate, procedures and responsibilities available to the public, especially victims of human rights to the public, especially victims of human rights violations violations