End of Mission Statement by Special Rapporteur on the situation of human rights in Myanmar, 7 August 2015

I conclude my third official visit to the country as Special Rapporteur on the situation of human rights in Myanmar as the country is coming to grips with the scale of destruction and loss of human life caused by the floods. I conveyed my deepest sympathies and profound sadness to all those I met during the mission and wish to renew those sentiments publicly now and particularly to the families of the victims and all those who have been affected by this disaster.

During this visit, I have been touched and inspired to see the strength of spirit and the solidarity of the Myanmar people at this time of crisis. Over the course of the past few days, I saw increasing public efforts to mobilize, volunteer and provide assistance. I welcome the seriousness with which the Government of Myanmar has responded to this crisis as well as the mobilization of international assistance. I call on the international community to provide continued support and assistance to all those in need, not only now but also in the weeks and months ahead, as communities rebuild their lives. I am aware that Rakhine State is one of the hardest hit areas and I would like to reiterate the call of many members of the state-level Emergency Coordination Centre for the provision of agricultural seedlings, the pumping of ponds and wells, and the reconstruction of schools and homes to be prioritized. I extend my hand in friendship and reaffirm my willingness to assist in any way possible.

I would like to thank the Government of Myanmar for its invitation and for maintaining cooperation with my mandate. I particularly would like to note with appreciation the efforts made to ensure my safety and that of my team in this particularly difficult time. I would also like to thank the United Nations Country Team for their support and assistance. My programme is listed in detail in the Annex.

The objective of my visit was to assess the human rights situation in Myanmar at this key moment ahead of the coming elections scheduled for 8 November. Accordingly, I sought to meet and engage with a wide spectrum of stakeholders across the country in order to hear a diversity of perspectives and to see the situation with my own eyes. I was pleased to have had constructive and frank discussions with all those I met, even on sensitive issues on some of which we held different views. I regret, however, that the Government could not agree to my request for a 10-day visit as per my previous visits. I am also disappointed that requested meetings and visits were not granted or suddenly changed or cancelled at the last minute without prior notice. This unfortunately hampers my ability to fulfil my mandate. I hope to continue dialogue in my next visit with the Ministers I was not able to meet this time. I will continue to seek and receive relevant information from all relevant stakeholders within the scope of my mandate in order to provide an objective, balanced and comprehensive assessment to the General Assembly.

I unfortunately received credible information that some of my interlocutors were photographed by security officials. I also heard that some individuals I met with in previous visits were monitored, photographed and later questioned by security personnel. I therefore asked all civil society actors, media workers and prisoners with whom I met, to report to me any cases of reprisal. The Government of Myanmar must ensure the safety of all my interlocutors and guarantee that they will not be subjected to any form of reprisals, including threats, harassment, punishment or judicial proceedings as required by the Human Rights Council. I raised these concerns with the Government throughout my visit and in my meetings in Nay Pyi Taw. I have been assured by the Minister of Home Affairs that no reprisals will occur for this and upcoming visits.

Today, I wish to highlight some preliminary observations from my visit. These issues, along with others, will be elaborated in more detail in the report I will present to the 70th session of the General Assembly later this year.

Elections

Elections can be a transformative moment in a country’s history. For Myanmar, the upcoming elections will be an important milestone in its transition to democracy and an opportunity to reaffirm and consolidate the reform process. In my meeting with Government interlocutors and specifically with the Union Election Commission, I urged that all efforts be made to ensure the holding of free and fair elections, the outcomes of which will be deemed credible and legitimate. This is what the people of Myanmar and, more broadly, the international community expect. In this regard, I welcome the steps taken thus far to address some of the problems and shortcomings of the 2010 elections. I also welcome the Government’s close cooperation with a number of organizations for technical assistance and advice, as well as election observation missions. And I note positively the Government’s invitation to national and international actors to observe the elections.

To be truly free and fair, the elections must be inclusive and must truly reflect the will of the people. Thus, while acknowledging the Government’s efforts to publicize the voter lists and to make the necessary corrections, many interlocutors have expressed to me their continuing concerns regarding errors in the voter lists.

I am also concerned by the possible disenfranchisement of thousands of individuals cutting across all sectors of Myanmar society. They include migrant workers, internally displaced persons and refugees who face specific challenges in checking voter lists, producing the required documentation, registering to vote and accessing polling stations. I understand that the Union Election Commission is taking some measures to address these challenges. Yet, I believe that more proactive measures must be envisaged and taken – through consultation with the affected communities and with the assistance and advice of relevant national and international actors.

Additionally I am concerned by the possible disenfranchisement of those living in conflict-affected areas such as Kachin and northern Shan States, as well as other parts of Myanmar where elections may be cancelled for security reasons. Clear criteria for the cancellation of elections need to be more clearly outlined; information on such measures must be made widely available.

Of grave concern to me is the disenfranchisement of hundreds of thousands of individuals who previously held temporary registration cards (“white cards"). White card holders were allowed to vote in the 2010 elections but lost this right in February 2015 following the decision of the Constitutional Tribunal. This impacts a number of communities and individuals in Myanmar but particularly the Muslim community in Rakhine State. The Chair of the Union Election Commission stated that holders of the new green identity cards (“identity cards for those whose nationality will be scrutinized”) will not be allowed to vote. This is of serious concern.

Conflict and peace process

Ongoing conflict has clear implications on the holding of inclusive and peaceful elections in areas throughout Myanmar. I welcomed the opportunity to have a discussion with members of the Myanmar Peace Centre and other interlocutors on developments regarding the signing of a Nationwide Ceasefire Agreement (NCA). My visit coincided with the holding of peace negotiations between the Union Peace-Making Working Committee (UPWC) and the Nationwide Ceasefire Coordination Team – Senior Delegation (SD) and I was honoured to have been invited to briefly observe the proceedings. The signing of the document will be a significant achievement for Myanmar.

In line with my mandate and as previously raised, I highlighted the importance of fully integrating human rights issues – including past and present human rights violations, discrimination and historically entrenched inequalities, as well as land and natural resource rights issues – during the negotiation phase. I was assured that some human rights issues were included in the NCA but that they would be fully discussed in the Union Peace Dialogue. I hope that commitments can be firmly made and processes established to ensure accountability, equality and non-discrimination after the ceasefire is achieved. In this way, a subsequent national dialogue can truly address the underlying grievances and aspirations of ethnic populations in order to ensure sustainable peace.

Also, as acknowledged by many, greater efforts must be made to ensure the full participation and inclusion of women in all stages of the peace process. This must go beyond statements and references to the importance of Security Council resolution 1325, to actually translate commitments into concrete actions, and to implement proactive and creative measures to ensure women’s full participation going forward.

In my discussions on the ongoing clashes and conflict in a number of areas throughout Myanmar, many interlocutors also reported continuing allegations of human rights violations – specifically highlighting allegations of sexual violence – by the military and armed groups, particularly in Kachin and northern Shan States. They expressed frustration that little or limited action has been taken to investigate, prosecute and punish perpetrators. I have consistently raised these concerns and continued to do so in my meetings with Government interlocutors during my visit. I will address these issues in more detail in my report and provide recommendations in this regard.

Situation in Rakhine State

The disenfranchisement of hundreds of thousands of former white card holders is an issue that must be seen against the backdrop of institutionalized discrimination against the Muslim population in Rakhine State. Some have informed me that these are sensitive issues which should not be raised publicly given the risk of fuelling communal tensions and potential conflict, and that my previous statements and publicly expressed views on this issue have caused discord. But I cannot shy away from continuing to highlight serious human rights violations and make principled but constructive recommendations. This is fully in line with my mandate and is rooted in Myanmar’s international human rights commitments and obligations.

It is in this spirit that I requested to visit Rakhine State and I regret that this request was denied by the Government well before my visit had started. I firmly believe in the importance of making my assessment based on the realities I have seen for myself on the ground. While immensely grateful for the opportunity to engage constructively with the Chief Minster, the Rakhine State authorities and members of the Emergency Coordination Centre, as well as some of the Rakhine Elders, I am acutely conscious that they were brought to Yangon especially to meet with me, while dealing at the same time with a natural disaster.

In my upcoming report to the General Assembly, I will address the situation in Rakhine State in greater detail. I will highlight various measures, including the planned return and resettlement of thousands of households affected by the communal violence of 2012, and efforts to promote dialogue between the two communities. I will also highlight remaining concerns and challenges, including the regional implications of irregular migration from Rakhine State. Of particular concern are restrictions on the freedom of movement, which severely impact access to basic and essential health care, education and livelihoods. Allow me to simply state now that more must and can be done to address the legal status of the Rohingya and the institutionalized discrimination faced by this community.

One practical step that could go a long way to improve the situation of youth in Rakhine State is to give priority emphasis to improving education opportunities and access to higher education. Restrictions imposed on the Muslim community, which impede their access to higher education, should be lifted and improvements in the general quality of education available should be made.

Freedom of expression, assembly and association

In order to be truly free and fair, elections require an environment that encourages the full participation of all sectors of society. In this regard, political parties and civil society actors must be able to operate freely. Independent media must be able to cover and report on all relevant matters related to the elections. Guarantees for the exercise of the rights to freedom of opinion and expression, and the freedom of peaceful assembly and association are vital to the democratic process, prior to, during and after the elections. They provide the crucial means for individuals and groups to voice their concerns and interests and to participate in public and political life.

On 30 July 2015, just before my visit, I was pleased to learn that some political prisoners were released as part of the Presidential amnesty. But the majority remain behind bars. In my interviews with political prisoners in Insein and Tharawaddy prisons, I was touched by their commitment to contribute to the future of Myanmar. I was particularly moved by the words of one prisoner who told me of his sadness in not being able to participate in flood relief efforts. Many emphasized that they were not against the Government and simply wanted to bring about positive changes to the country. These are the kind of people that Myanmar needs at this critical juncture.

Of concern is the sense among human rights defenders and civil society actors of increased monitoring and surveillance of their activities, and of increased intimidation and harassment by security personnel and state agents. Since my last visit in January 2015, I observed the continuing arrests and convictions of civil society actors – including students, political activists, workers, union leaders, farmers and community organisers – exercising their rights to freedom of expression, assembly and association. Many face multiple charges and trials in different townships in relation to a single protest. This practice should immediately come to an end. Some with whom I spoke believe that this is deliberately done to ensure that they remain in prison and are excluded from the upcoming elections.

The violent police crackdown against students and their supporters on 10 March 2015 in Letpadan (Bago region) illustrates all of this vividly. I was given access to the protest site, met with the authorities, and interviewed five individuals detained in Tharawaddy prison. I received allegations of excessive use of force by the police and call on the authorities to conduct a prompt, impartial and independent investigation into these allegations. In my view, these people have been arbitrarily arrested. I therefore call for their immediate and unconditional release and I urge that all charges be dropped against all those arrested in connection with the Letpadan incident.

Article 18 of the 2014 Right to Peaceful Assembly and Peaceful Procession Law and Section 505 (b) of the Penal Code continue to be selectively used against those exercising their rights to freedom of expression, assembly and association. I would like to highlight once again the incompatibility of these provisions with international standards.

I also remain concerned by the arrests of journalists and media professionals under defamation, harassment, trespassing and national security laws that are not consistent with international human rights standards. The killing of Ko Par Gyi (aka Aung Kyaw Naing) and the attack on the Eleven Media CEO, for which the perpetrators have yet to be brought to justice, create a climate of fear and uncertainty within the media. Journalists and media workers contribute to public debate and are vital for democratic societies. They will have an even more crucial role to play prior, during and after the elections. The freedom of expression and independent journalism, uninhibited by fear of legal reprisals, intimidation or even violence, must be ensured.

Incitement

I was heartened to hear that the majority of the population is against hate speech and incitement to hatred. Religious leaders and civil society actors are increasingly engaging in interfaith activities and are working hard to build a more tolerant and inclusive society. At the same time, I also observed the increasing influence of religious extremists in this pre-electoral period. I have received reports by human rights defenders and journalists of threats and intimidation by these actors and the lack of action taken against them.

During my visit, I raised the case of U Htin Lin Oo, who was sentenced to two years in prison with hard labour for “insulting religion” for a speech he gave in October 2014 criticizing the use of Buddhism as a tool for extreme nationalism. I also referred to the shocking video of a political party leader addressing a rally in the Bahan township of Yangon on 27 May 2015, in which he urged those present to “kill, shoot and bury” the [Rohingya]. The crowd can be heard repeating his statements. To my knowledge, this political party leader has not faced any legal action. I highlighted these two cases to show the stark difference in treatment. The Government must do more to combat hate speech and incitement to violence.

Legislative reform

In the context of continuing legislative reforms, many interlocutors expressed concern about the lack of compliance of new or revised bills and laws with international human rights standards. While some do not fully comply with international standards, others – like the “Protection of Race and Religion” legislative package – clearly violate these norms. Out-dated laws that have previously been highlighted as not being in compliance with international human rights standards also remain on the books.

Additionally, I was told by many civil society actors that laws were being rushed ahead of the elections without proper consultation. In other cases, bills have been discussed for a long time but then amended at the last minute removing key provisions. These issues will be addressed in greater detail in my next report to the General Assembly.

Economic, social and cultural rights

The arrests and convictions of those involved in protests related to land rights, extractive industries and large-scale development projects are still ongoing. This issue must be seen in the context of continuing concerns regarding the prevalence of land grabbing, land confiscations and forced evictions by the military and by private actors for large scale development projects, mining and other natural resource extractive industries. I remain of the view that these complex issues will continue to be one of the major challenges facing Myanmar after the elections. While I will elaborate upon this in my report to the General Assembly, I will state generally that priority attention should continue to be given to these issues in accordance with human rights principles and standards. This requires that the principles of equality and non-discrimination, participation, protection, transparency and accountability, including access to appropriate remedy, are fully taken into account.

Conclusion

Let me conclude by reaffirming my commitment to engage constructively and openly with the Government and all other stakeholders. While I am fully aware of the complexities of the situation in Myanmar and the reform process, I cannot hold Myanmar to a lower standard. I must continue to objectively assess the situation against the country’s own international human rights obligations.

Ahead of the elections, one key recommendation I can make to the Government of Myanmar is to reconsider its fear and opposition to critical and independent voices. Civil society actors, journalists and ordinary citizens exercising their rights to freedom of expression, assembly and association are not threats; instead they are the voice of different communities and interests in Myanmar – in all its wonderful and rich diversity – and they play a vital role in contributing to and sustaining a robust democracy, and in advocating for the promotion and protection of human rights. They should be seen as partners and their actions and voices should not be restricted, but rather heard, facilitated and supported.

I stand with you, the people of Myanmar, as you chart your way forward in this historic moment.

Annex – List of Meetings

Union Government Officials

• Lt. Gen. Ko Ko, Union Minister, Ministry of Home Affairs
• U Thant Kyaw, Deputy Minister, Ministry of Foreign Affairs
• Brig. Gen. Aung Than, Deputy Minister, Ministry of Defence
• Dr. Tun Shin, Union Attorney General
• U Tin Aye, Chairman, Union Election Commission
• Brig. Gen Kyaw Zan Myint, Secretary of Land Use Management Central Committee
• Advisors to the President:
  - Legal Advisors: U Sit Aye; Daw Khin Myo Myint; U Yan Naing Win
  - Political Advisor: U Ko Ko Hlaing
  - Economic Advisors: U Tin Htut Oo; Dr. Zaw Oo; Dr. Sein Hla Ko

Rakhine State

• U Maung Maung Ohn, Chief Minister
• Representatives of the Emergency Coordination Center and the Rakhine Elders

Other institutions

• Myanmar National Human Rights Commission
• Myanmar Peace Center

Civil society actors

• Lawyers
• Media workers
• Actors working on land rights issues; women’s rights and gender issues; elections; freedom of expression and association; 88 Generation Peace and Open Society; Rohingya leaders; interfaith groups
• Recently released prisoners
• Center for Diversity and National Harmony

Others

• Religious leaders
• Daw Aung San Suu Kyi

Detainees in Insein Prison

• Naw Ohn Hla
• Wint Kyaw Hmu
• Sabe
• Nay Lynn Dwe
• Sai Tin Min Tun
• Nay Myo Zin

Detainees in Tharawaddy Prison

• Phyoe Phyoe Aung
• Thiha Than Win (aka Min Thwe Thit)
• Honey Oo
• Kyaw Kyaw Htun (aka Aung Myin)
• Nanda Sit Aung