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STATEMENT BY PROFESSOR PAULO SERGIO PINHEIRO, SPECIAL
RAPPORTEUR ON THE SITUATION OF HUMAN RIGHTS IN
MYANMAR AT THE FIFTY-EIGHTH SESSION OF THE
COMMISSION ON HUMAN RIGHTS

28 MARCH 2002




ITEM 9: QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ANY PART OF THE WORLD


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Mr. Chairman,

This is the second time that I have the honor to address the Commission in my capacity as the Special Rapporteur on Myanmar. I recall that a year ago I could share only initial impressions in light of my brief exploratory visit to Myanmar in early April 2001. Today I would like to present observations based on the findings of my two fact-finding missions to Myanmar in October 2001 and February 2002. A report on the first one, submitted to this Commission, has been out for quite some time, I would therefore prefer to focus my statement on the impressions from my last mission.

The remarkable cooperation I had received during my last mission from 10 to 19 February has enabled me to further my inquiries into and understanding of the topics which I had chosen to focus on since I began my mandate, and which include the situation of the rights to food, health and education which are the primary concerns of the vast majority of the population, the continued detention of the estimated 1500-1600 political prisoners, the ability of political parties to conduct their legitimate activities without restriction, the administration of justice and the rights of minority peoples.

Mr. Chairman,

I wish to express my appreciation to the Government of the Union of Myanmar for the support extended to me during my second fact finding mission to that country. This new mission has enabled me to learn and to improve my understanding of the complex human rights situation in Myanmar and thus to relay that understanding inside and outside Myanmar. Since my first mission, I have approached my mandate in a spirit of principled engagement and cooperation. In spite of the slowness of the process and the limited political results that are so far apparent, I continue to believe that there is a will within the State Peace and Development Council (SPDC) to pursue a transition from political exclusion to cooperation with the National League for Democracy (NLD) and other components of society.

The path taken, the pace followed, and the means employed to effect a genuine political dialogue and democratic transition may be discussed - but the process continues, and it is vital that it continues. I think that Myanmar is destined to change. Of course encouraging confidence building cannot take the form of ignoring large and persistent human rights abuses. There is no other way out of the devastating impasses of the past. If the international community wants to see political and human rights progress taking place, it should support the efforts underway in a spirit of principled engagement.

Let me clarify what I mean by principled engagement. I have proposed to the SPDC a partnership between it, the NLD, the peoples of Myanmar and myself. To this joint venture I come with a sincere desire to engage with a country which direly needs international solidarity, with an open mind eager to listen, learn and understand. I come in a spirit of independence, impartiality and objectivity. I am not coming to accuse, but to work with those interested in improving the human rights situation, to analyze problems, look together for solutions, and encourage international assistance wherever possible in implementing these solutions. Criticism is more easily accepted when it is constructive and when it is associated with cooperation to address the difficulties identified. I see human rights progress as a process of shared responsibility. What I expect in return is reciprocating cooperation, openness, and evidence that there is a serious will to improve the human rights situation, not only in words but, more importantly, in deeds, for I can only report progress if I witness it. Short of this, my role will soon become empty.

For a transition to succeed, an important condition is that the process must be inclusive. All components of society should be associated, with due respect for their differences and aspirations to participate in national reconciliation and to be treated as human beings on equal footing. I have told my interlocutors in Yangon that there can be no credible and successful transition without two other fundamental conditions: the release of all political prisoners and the restoration of the peaceful exercise by all citizens of Myanmar of their rights to freedom of opinion, expression, assembly, association, movement and information.

Mr. Chairman,

I would like to recall a luminous moment of my mission. I spent one morning, meeting with the villagers of a small Kachin community outside Mytkyina, the capital of Kachin State. For the past two and a half years, this village has been benefiting, along with 53 others totaling 32,000 people, from a multi-sectoral, participatory, poverty-alleviation UNDP project run by UNOPS. At an operational cost of 12,000 USD which had gone directly to the community, that village of 250 souls has been able to improve its food production, to generate a surplus to be invested in further improvement of living conditions and means of subsistence, to secure access to drinking water, to create and maintain a safety net in the case of food, health or other potential crisis, to build-up a school and give its children access to education and to improve its access to medical care. Last but not least, through its participatory approach, the project has successfully mobilized since its inception the villagers themselves in the shaping of the development of their community. The village is striving to make this project self-sustainable, so that outside dependency can be eventually terminated. This project is run independently from local authorities, which have been kept informed but have not interfered in it.

In my view, this project is emblematic in many ways. First, this is essentially what human rights work at the grass-roots level is about. Second, it is a practical illustration of the concept of the right to development when it is well understood: it shows the extent to which beneficiaries, when they are allowed to become the prime actors of the development of their community, can improve their living conditions with minimal outside support. Third, it is a vibrant illustration of the inter-relatedness of economic, social, cultural, civil and political rights. And it demonstrates how international humanitarian and development resources may be intelligently invested in a manner that directly benefits the people themselves. I hope that this exemplary project will be replicated and expanded to many other parts of Myanmar where so many people are living at the subsistence level.

The precarious humanitarian situation in the country requires a more adequate response from the international community. I am convinced that the people of Myanmar should benefit from external assistance today, not tomorrow, because their basic right to survival must be guaranteed now. I am encouraged by the efforts of the UN country team to further strengthen coordination and complementarity between the political, normative and operational agendas of the UN, which helps to create a coherent approach toward the issue of external assistance. Given the existing realities in the country, it is crucial that such assistance will effectively reach society. It is also essential that it is based on the assessment of cost-effectiveness and is properly administered and efficiently monitored. My visit to the UNDP/UNOPS project site in Kachin State amply demonstrates that this is feasible.

In my report to the Commission I underlined the valuable assistance efforts of international NGOs which also operate among the most vulnerable groups in Myanmar and voiced my concern about operational constraints which complicate the work of these NGOs and reduce the meaningfulness of their Memoranda of Understanding with government counterparts. Their operational environment has reportedly not seen significant improvements since my visit in October 2001. I am concerned that the NGOs are now required to ensure that a representative from a relevant ministry accompanied them on all field visits at their expense. As this may not always be justified under a project, there appears to be an attempt to control, which may effectively turn purported collaboration into a reporting procedure. I have also heard that since about 3 months ago the NGOs can no longer bring short-term consultants unless they have a letter of invitation issued by a government counterpart.

Mr. Chairman,

For people to build their lives, peace is required. I have commended in my report the long, patient efforts by the SPDC and 17 ethnic minority-based armed groups to reach separate cease-fire agreements. After decades of fear, insecurity, and widespread violence, which has included many documented instances of killings, arbitrary arrest and detention, torture, forced displacements and portering, the first dividend of these cease-fire agreements is peace, the second is some development, even if it has not been in the main forthcoming. The latter has been allegedly a factor in some splinter groups returning to the armed struggle. Those who have entered these agreements understand them as the first step of a political negotiation process leading to a permanent agreement reflecting the principles of mutual respect, equal status, rights and duties, sovereignty of the Union, all of which should be enshrined in the future Constitution. In the meantime, each group retains its weapons, army, organization, and cooperates with the SPDC to develop the zones under its control.

Positive steps have been taken on both sides to consolidate the initial agreements, including respect for large autonomy of the cease-fire zones, financial and economic cooperation to develop local infrastructures (roads, schools, medical facilities), teaching of Burmese and English in public schools while it is left to each group to teach its own history, culture and language to its children, and the issuance of national identity cards to the people living in these zones so that they can freely travel throughout Myanmar. While these are important steps, cease-fire groups have expressed concern that political discussions have not progressed and that they are excluded from the current secret talks between the SPDC and the NLD.

Sustainable peace in Myanmar requires the integration of all the peoples and components of society into the political dialogue that will shape up their common future. This is precisely where the pledge - and the challenge - of democratic reform starts. I hope that the SPDC and the NLD will give further consideration to this important dimension, the ignorance of which has led to decades of conflict, and may undermine the current progress. In the meantime, I would encourage international assistance actors to visit cease-fire zones and support development efforts there, especially in the fields of agriculture, education, access to safe water, income generation, and health. In this regard, the pioneering work of UNDP/UNOPS in the remote townships of Kachin, Chin and Rakhine States should provide a useful source of inspiration.

Mr. Chairman,

As I mentioned earlier, I believe that no political transition can be credible without three fundamental dimensions: the need to bring all components of society together in a political dialogue, in a spirit of mutual respect, cooperation and equity; the early release of all political prisoners; and the lifting of the restrictions which continue to hamper the ability of political parties and cease-fire groups to meet, discuss, exchange and conduct their legitimate peaceful activities. I have repeatedly stressed these points in my discussions with interlocutors in Myanmar.

I am aware how delicate is the task of bringing all components of society together in a spirit of mutual respect, cooperation and equality, which I believe should find its full expression through a democratic constitution. This challenge has been at the heart of the making of modern Myanmar. I established contacts with the National Convention Convening Commission and its Work Committee during my last mission. I was informed that a number of basic principles relating to the contents of the new Constitution had been laid down by the National Convention plenary sessions up to 30 March 1996. I understand that subsequently further preparatory work has been underway and that the above two bodies have continued to meet regularly; however no new texts have been submitted to the National Convention. I reiterate the importance of the involvement of and consensus among all people in Myanmar in undertaking such a historic exercise as national constitution drafting. I hope to follow up these developments with substantive discussion on this subject during my next mission.

I am pleased to confirm that the NLD has continued to be able to open further party offices in Yangon and Mandalay divisions. Pressures on landlords to prevent them from renting office space to the NLD have also stopped. However, as stated in my report, the stringent restrictions imposed on the NLD and other political party members to peacefully exercise their fundamental human rights to assemble, travel, express their opinions, produce and communicate information, continue to significantly hamper their legitimate activities. I have met the National Unity Party and the Union Solidarity and Development Association, and there are striking contrasts between the resources and means put at their disposal, and their complete freedom to operate, on the one hand, and the limitations imposed on the NLD and other legal parties, on the other. Among those, the legal Shan National League for Democracy continues to be reluctant to open offices and meet supporters out of fear of exposing their safety.

Credible transition requires the restoration of complete freedom for political parties to conduct their legitimate activities. This is another test by which the SPDC's good-faith will be measured, both inside and outside Myanmar. Significant progress in this respect will improve the atmosphere, at home and internationally, and help normalize Myanmar's relations with the international community, including the United Nations, governmental and non-governmental international cooperation actors, financial institutions and private investment.

Mr. Chairman,

I reiterate my recommendation that all political prisoners should be released. In this regard, I have suggested that serious attention be given to an amnesty or a series of amnesties. This would send a clear and non-ambiguous signal that is expected by everyone. Should amnesties be seriously considered, the United Nations may assist Myanmar, by providing to interested parties information and experienced advice about how amnesties have been formulated and implemented in other countries in transition, thus providing useful sources of inspiration. I have provided the SPDC with a copy of a seminal study prepared on the subject for the Sub-commission on Human Rights in 1985 and stand ready to work closely with the SPDC to that end.

As the Special Rapporteur on the situation on human rights in Myanmar, I cannot accept the view that the estimated 1,600 remaining political prisoners are criminal offenders. The fact that they are not ordinary criminals is officially recognized by the SPDC, since they are held separately from common criminals. Their common denominator is that they are in prison in connection with alleged political opinions or activities. During my prison visits I have met in private political prisoners and it seems to me that most, if not all, are in prison in violation of international human rights law and principles and should be released unconditionally.

Among them, I have distinguished several categories:

First, many are detained only for having exercised peacefully their political opinions. Doing so is not a crime but a fundamental human right, essential to any democratic transition and life. They may have been convicted of violations of existing Myanmar laws, but laws which make peaceful opinion an offence violate international human rights norms and should be repealed. A case in point is Dr. Salai Tun Than, a brilliant PhD and a senior academic in the field of agricultural research, who was arrested in November 2001 and is now serving a seven-year sentence in Insein prison where I met him during my last mission. Being myself an academic, I felt depressed and distressed.

In this first category, there are still persons who have received additional sentence and punishment for having communicated human rights information to a previous Special Rapporteur or the United Nations. How can I continue to credibly deliver my mandate, if the persons who have peacefully cooperated with UN human rights mechanisms remain in prison? They should be immediately released.

Second, there are persons who have completed their sentences but are still held, making their detention illegal and arbitrary. I have heard about the extension of sentences for 10 political prisoners for an additional 7 years in November of last year and more recently for a student leader Paw U Tun (Min Ko Naing) for another year. Why is it so?

Third, there are persons who have never been charged nor tried and have been in prison for several years. I cannot understand why these persons are in prison.

Fourth, there are persons who are old and/or sick, and should be released on humanitarian grounds.

Fifth, there are also persons who may have been accused of supporting violent opposition but who have not used violence themselves, as well as persons engaged in armed opposition. They have been tried by courts, the independence of which is questionable. Trials must meet the essential requirements for fairness and the right to defense.

I am also concerned that a number of prisoners have been held in the past in solitary confinement for many years, which may have serious adverse consequences for their health. A case in point is Paw U Tun, who has reportedly been held in solitary confinement for most of his imprisonment since he was arrested in March 1989. Others have been sent to prison far away from their homes, making it difficult or impossible for their families to visit them. I have read in the prison manual that prisoners can have access to reading and writing materials, whereas this is denied in Insein prison to political and other prisoners, except for some religious books. Being a teacher myself, I am particularly concerned about the number of students in prison. The denial of their right to pursue their studies in prison is an additional life punishment. I have also learnt that children of political detainees have sometimes been denied access to higher education, regardless of their good examination results.

An amnesty for these persons would help resolve this intractable situation and allow hundreds of Myanmar men and women to return home. It would be regarded as the most credible illustration that the SPDC is serious about political transition. It would improve the public image of the SPDC, strengthen the confidence of other political parties and the society at large to the process and encourage their support. It would relax some of the social tension which I have felt during my visits and which is rooted in skepticism, fear, frustration and lack of hope. As you know well, growing frustration and hopelessness are the seeds of violence. It may also help reaching cease-fire agreements with remaining armed opposition groups and contribute to restoring peace throughout the country for the first time since independence. It would also allow thousands of Myanmar refugees living in despair in neighboring countries to return home.

Upon the completion of my mission, I wrote to the SPDC stating all these points and submitting the names of 104 political detainees for immediate release, including 19 elected MPs, 22 persons whose continued detention is related to an alleged attempt to communicate human rights information to the United Nations, 33 prisoners held beyond the term of their sentence, 9 persons detained for several years without charge or trial, and 21 humanitarian cases of those who are either old or sick.

I am pleased to acknowledge that during 2001 about 219 political detainees were released from prisons and "guest houses". Since the beginning of 2002, 44 political prisoners have been freed so far, bringing a total number of releases to 263 within a period of 15 months. Most of them are NLD members but some are students and persons who had been imprisoned for connections with armed groups and for communicating human rights information to the UN. It is gratifying to note that 11 releases were announced during my visit and included cases which I had submitted previously for the consideration of the SPDC.

I am very happy to confirm the recent of release 318 women prisoners, all pregnant or mothers with young children. I stated in my report to the Commission that these prisoners constituted one of the most vulnerable groups in the prison population and I welcome the Government for beginning to address this concern.

I hope that the thoughts expressed to me by U Win Tin, 72-year-old NLD politician and journalist (in prison since 1989), when I visited him on 19 February 2002 in the Prison Ward of the Yangon Central Hospital, may soon become a reality. For someone like him who had been living for many years in a dark chamber, he felt that on the day of my visit he began to see light. He expressed his wish that, likewise, a glimmer of light could be brought to all the people of Myanmar who like himself are having their human rights violated. May his wish be listened to by the Government of Myanmar and be the prelude of hope for freedom for all political prisoners in the near future. In particular, I hope that the restrictions on Daw Aung San Suu Kyi’s rights will be lifted soon so that she may be able to resume normal political activities as a leader of a legal political party.

Mr. Chairman,

As I mentioned, during my last mission I began looking at issues relating to the administration of justice. For that purpose, I sought to meet with the judiciary, lawyers, the police, and prison staff in every location which I visited. In Yangon I met with the Home Minister, the Attorney-General and Chairman of the Bar Council, the Director-General of the Prison Department, the Police Director-General, and members of the Human Rights Committee. I visited Insein Prison and a prison ward of the Yangon General Hospital. In Myitkyina (Kachin State), I had meetings at the State court, lawyers’ association, and the State police office, visited the Police Lock-Up No. 1 and Myitkyina prison.

I have also collected a number of relevant legal materials and conducted confidential interviews with 26 prisoners. I will continue to examine and report about the administration of justice during my subsequent missions. Meanwhile, by way of my initial impression, I would like to mention two fundamental concerns which I have already started raising with my interlocutors and which are the needs to insure the independence of the judiciary and the right to defense. These deficiencies need to be properly addressed, so that justice and the rule of law may prevail, and for the same matter, effective guarantees for the protection of human rights.

Mr. Chairman,

During my last mission we have collected first hand information relating to serious human rights violations allegedly perpetrated by Myanmar military personnel in areas where armed opposition groups are reportedly active. I have started reviewing and assessing those allegations. I visited Thailand and sought information and advice from UN colleagues, humanitarian and human rights NGOs. I met with representatives of the Royal Thai Government. We travelled to Chiang Mai and Tak provinces in order to interview newly arrived refugees from Shan and Kayin (Karen) States, and visited a refugee camp. I am not yet in a position to draw conclusions concerning these allegations, which require more attention and research on my part in order to make my own assessment and report objectively. For this purpose I intend to conduct in some of those areas, in situ, my own investigations during my next visits to Myanmar.

The following are thus my own preliminary observations. The information we gathered shows a great degree of coherence and consistency in times and places. From interview to interview we made, there emerges a pattern of allegations of human rights violations by some military personnel against mostly civilian villagers for their suspected or imputed sympathy or support for ethnic or other armed opposition groups. The violations described would allegedly occur in the context of counter-insurgency operations in ethnic areas in Myanmar, aimed at destroying armed opposition resistance by depriving it of its support base. I heard allegations of deportations of the rural population from areas of suspected or real armed rebellion to relocate them in areas under army control, thus depriving insurgents of any source of support (combatants, food, money and intelligence). This would be usually combined with a scorched earth policy in the affected areas which become "free-fire zones". Emptied villages would be often burned down, food reserves confiscated or destroyed, and cultivated fields abandoned. No compensation for the lost property or material assistance would be provided to these internally displaced people to help them resume life in forced relocation zones. Forcibly displaced people would be prohibited from returning to their villages and if caught are at risk of being shot on sight and killed. In relocation areas, they have to start again from scratch and survive as best as they can, growing food where and when possible, becoming daily-wage labourers, sometimes beggars. They would also become a pool of free labour for further exploitation and abuse.

In recent years, this policy has reportedly affected hundreds of villages in Shan and Karen States, where Shan and Karen armed opposition groups are suspected of operating from rear bases located along the Thai-Myanmar border. Numerous villages have also been reportedly forcibly relocated in eastern Kayah State, in northern Mon State, and in Tenasserim divisions. Most recently, forced transfers of population have allegedly been taking place from northeast Shan State adjacent to China to designated areas of southern Shan State, involving mostly Wa farmers and combatants and their families, as well as several hundred Lahu families and ethnic-Chinese. Shan and Lahu residents who used to live in these relocation areas have allegedly been dispossessed of their houses and lands and become internally displaced or refugees.

Mr. Chairman,

These reports are a matter of great concern to me. As are the reports of abuses of civilians and refugees which I have received, notably by the Karenni National Liberation Army (KNLA). The latter has been accused of forced conscription of male villagers, including underage youth, levying of taxes in rice and money, laying of mines and booby-traps on forest footpaths, detention and forced labour for refugees suspected of drug trafficking, and in some cases killings of villagers.

The bulk of those allegations appear to be credible indeed, in face of which I cannot be silent. Fundamental human rights, such as the right to life, personal security, physical integrity, freedom of movement, ability to make a living appear to be routinely violated by the army in the areas of suspected armed opposition groups, making life unbearable for thousands of ordinary people who have nothing or little to do with political considerations, and who are abused because they belong to a different ethnic group and are suspected of supporting the armed rebellion. As usual, in the context of insurgencies, it is the poor and defenceless civilian population which bears the burden of the war, caught between different sides in a conflict which for decades has only brought to them death, fear, suffering and devastation.

The continued flow of asylum seekers from Myanmar to Thailand, which is estimated at 1,000 a month, is a symptom of a complex internal situation and the roots of which are as economic as they are political, the two being obviously inter-twined in many ways. It is when people are confronted with no viable alternative that they reluctantly take the road of exile. All the refugees I have met and who are not politically affiliated, want to return home. The generous open door policy of the Royal Thai Government vis-à-vis asylum seekers and other migrants from Myanmar must be commended, and I hope that it will continue to offer a safe heaven to those needing it, until conditions in Myanmar offer credible guarantees for a safe and dignified return.

The sad reported human rights situation in minority people areas where armed opposition groups are active contrasts starkly with the restoration of peaceful conditions in ceasefire areas and the beginning of some economic development there. The path taken by the ceasefire groups and the SPDC is, in my view, the only way to go. This requires a genuine willingness to reach compromise on both sides. I would encourage the SPDC leadership to show generosity and not to request conditions of ceasefire which amount to surrender and cannot be acceptable to the other side. This continued war has no future.

Mr. Chairman,

Finally, I am very pleased to note that the negotiations between the Government of Myanmar and the ILO, following the ILO technical cooperation mission that I met during the last day of my visit, have produced an Understanding on the appointment of an ILO Liaison Officer in Myanmar. I believe this positive step will open the way for a continued and effective ILO representation in the country to assist Myanmar Government in ensuring the eradication of forced labour.

In the light of this landmark agreement between the ILO and Myanmar and a series of positive steps taken by Myanmar Government, I hope also that this agreement can pave the way for the normalization of the role and participation of that country in the ILO. Eventually the effective implementation of that arrangement may create in the near future conditions conducive for a possible review of the measures taken by the ILO under article 33 of the ILO Constitution.

I am convinced that the establishment of the Liaison Officer is another important chapter of the principled engagement of international organizations in Myanmar. I think that the notable role of facilitating a political change and good offices played by the Special Envoy of the UN Secretary-General to Myanmar, Ambassador Ismail Razali (whom I recently met in Kuala Lumpur), the activities of other UN agencies, most notably the UN country team in Myanmar and its Resident Coordinator, as well as the ILO and the ICRC, will contribute to build the necessary conditions for the respect of the rule of law inside Myanmar.