FAAE Committee Report

THE HUMAN RIGHTS SITUATION IN BURMA: POSITIVE DEVELOPMENTS

Since the general election in November 2010, the Burmese government has instituted a number of reforms that have led to improvements in the country’s human rights situation. On 1 April 2011, the new, nominally civilian government led by President Thein Sein — who was appointed as the head of the Union Solidarity and Development Party (USDP) by the former leader of the military junta — took office and the 2008 constitution came into effect.[21] The Subcommittee was told that the reform process in Burma “is just getting started. Everything needs to be discussed, and the standards, phases, measurable aspects and so on need to be determined.”[22] That said, representatives from DFAIT stated that they believe “that this is a very sincere attempt to open up the country to democratic institutions to ensure prosperity and stability for their people.”[23]

Witnesses advised the Subcommittee to be hopeful but cautious about democracy and human rights in Burma. Mr. James Humphries, Founder and Director of Project L.A.M.B.S. International, told us that General Than Shwe, Burma’s former military dictator, is still a power behind the scenes and the country’s democratic reforms are not yet irreversible.[24]

Every witness who appeared before the Subcommittee recognized and described the progress made by the Government of Burma with respect to certain civil and political rights, and commented on the apparent political will to work towards improving respect for social, economic and cultural rights in Burma. Many praised Canada for playing a role in bringing about this positive transformation through the imposition of tough economic sanctions.[25]

In the Subcommittee’s view, the challenge for the reformist elements within the Government of Burma is to ensure the effective and universal implementation of democratic, institutional, legal, administrative and policy reforms so that all people in the country can fully enjoy their human rights.

A. Progress in Civil and Political Rights

1. Democratic Governance

a. Elections

Burma has recently begun moving towards greater democracy and political pluralism. Witnesses consistently welcomed these positive advances in their testimony.[26] As parliamentarians, we are keenly aware that the only legitimate basis for the authority of government is the will of the people, freely expressed through free and fair elections in which all citizens have an equal vote.[27] The Subcommittee wishes to emphasize that this principle is considered to be so indispensable to the protection of individual human rights that it has been enshrined in the Universal Declaration of Human Rights.

Democratic participation in governance through free and fair elections is the cornerstone of democracy. Burma held by-elections for 45 seats in the Union Parliament on 1 April 2012. The opposition NLD contested 44 of the 45 open seats, winning in all but one riding. Daw Aung San Suu Kyi won her riding, and she, along with the other NLD MPs now hold 7% of the seats in the Burmese Parliament. Several countries, including Canada, sent small delegations to observe the by-elections.[28]

Given Burma’s troubled history, the Subcommittee was concerned about the by-election process, in particular whether they were free and fair. In response, Mr. Giokas told the Subcommittee that the international observers were not given the full standard of access that a proper international election-monitoring mission normally would have, so it was not possible to certify whether the election was fully free and fair. On the other hand, he told members that although there were some concerns,

[i]f there was election rigging going on of any significant dimension by people who had a stake in rigging those elections, they certainly failed. We had monitors on the ground who reported that it looked fairly good, but they didn't have proper access; they were observers more than monitors. This was not a process that was really scrutinized in great detail by experts in the area of election monitoring.

I think the simple answer to the question is that the results speak for themselves.[29]

The ability of opposition candidates to freely contest these by-elections was seen by Canada and many other western nations as a key indicator of the genuineness of the reform process.[30] Following the election, the Honourable John Baird, Minister of Foreign Affairs, said in a statement that he was “pleased that early reports indicate voting was conducted without violence or overt intimidation” and he “strongly encourage[d] [Burma’s] officials to continue down this path.”[31]

The Subcommittee recalls that the right to participate in the governance of one’s country, either directly or through freely chosen representatives is a fundamental human right.[32] It also agrees with Daw Aung San Suu Kyi that democracy is the only political system worthy of an independent nation.[33] In our view, the April by-elections represent a major positive step for Burma on the path to democracy, but it must also be noted that the country still has a long way to go. The Subcommittee considers that Burma’s 2015 general elections will provide a critical test for the durability and sincerity of Burma’s reform process.

b. Democratic Institutions

Political systems, institutions and practices have a significant impact on a country’s ability and willingness to respect, protect and ensure the human rights of all those within its jurisdiction. Hence, in the Subcommittee’s view, at the heart of reforms in Burma lies the restoration of strong and inclusive parliamentary institutions that can respond to the diverse aspirations of all people in the country.

A significant step toward reform came in May 2012, when Daw Aung San Suu Kyi and other members of the NLD took their seats in the Burmese Parliament after having been elected in the April “historic by-elections.”[34] However in doing so, these same members rightfully expressed reservations about the wording of the oath of office requiring them to safeguard the current Burmese constitution, which ensures the Burmese military’s ultimate control over the country’s government — a tenet of the constitution that the party wishes to see changed.[35]

The Subcommittee was told that there are encouraging signs that MPs from all parties in the Burmese Parliament are demonstrating a willingness to engage in debate and implement democratic legislation. Mr. Giokas explained that in Parliament “[f]or the first time ministers are answering questions on fundamental issues of poverty alleviation, principles of freedom and justice.”[36] After hearing from Mr. Giokas, the Subcommittee has followed developments in Burma’s Parliament with interest and members are heartened by some of the progress they have seen. For example, media reports indicate that the Burmese Union Parliament has recently established a rule of law committee, chaired by Daw Aung San Suu Kyi.[37] The New Light of Myanmar, the official state newspaper, recently reported that MPs debated a proposal to make amendments to the country’s 1988 non-governmental organization (NGO) registration law, with some MPs reportedly making statements in favour of civil society involvement in social, economic and democratic reforms. The Speaker reportedly ordered a parliamentary committee to consider the issue.[38] The Subcommittee is very encouraged by these signs that the Burmese Parliament is taking steps to address important issues related to democratic reform in the country.

As with any new institution, the Subcommittee recognizes that it may take some time before Burma’s Parliament fully settles into its new democratic role. We welcome Minister Baird’s suggestion to build ties between Canadian and Burmese parliamentarians. We believe that this type of exchange could provide valuable assistance to Burma’s MPs as they grapple with the challenges of democratic governance and the role of elected representatives.

In the long term, the Subcommittee believes that Burma’s democracy must rest not on the personal integrity of President Thein Sein, Daw Aung San Suu Kyi or any other individual, but on a strong institutional foundation that includes a functioning, democratic parliament. We hope that Burma’s parliamentarians can build a culture of robust and transparent parliamentary debate to help move their country towards democracy. Between now and the Burmese general elections in 2015, the Subcommittee encourages the Government of Canada to continue to promote and support democratic development in Burma.

2. Protection of Human Rights under Burmese Law

The Subcommittee believes that another positive development in Burma has been the extension of constitutional protection, for citizens of Burma, of certain human rights in the 2008 constitution.[39] Mrs. Humphries told the Subcommittee that

The constitution lists many positive rights for the people. For example, included are freedom of speech, freedom of the press, freedom of religion, freedom to travel anywhere in the country, and the enjoyment of equal rights between peoples, with no discrimination allowed. Women too are protected to the extent that they are to have the same rights and salaries as men.[40]

Mr. Giokas also testified that Burma’s President, Thein Sein, created a national commission on human rights. In DFAIT’s view, this initiative represents another positive step on Burma’s road towards democratic reform.[41] The Commission is comprised of 15 members, including civilian academics and civil servants. It is chaired by U Win Mra, who was Burma’s Ambassador to the United Nations under the former military junta. The Vice-Chair also formerly held the same position.[42]

The Subcommittee’s work on human rights issues in different countries has led it to appreciate the important role that national human rights commissions may play in the protection of individual rights. Indeed, international human rights standards recognize that national human rights commissions have a “potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights.”[43] Therefore, the Subcommittee inquired further into the scope of the Human Rights Commission’s mandate and the individuals appointed as commissioners. According to Mr. Tomás Ojea Quintana, the United Nations Special Rapporteur on the situation of human rights in Myanmar (Special Rapporteur on human rights in Myanmar), a Presidential Decree established Burma’s National Human Rights Commission on 5 September 2011. The Commission has a mandate to promote and safeguard the human rights of citizens set out in the 2008 constitution.[44]

The Commission has announced that it will receive and consider complaints from individual citizens, other than matters that are currently under consideration by a court or which have been subject to a judicial decision.[45] In addition, information provided to the United Nations Human Rights Council by the Government of Burma in April 2012 indicates that “with a view to improving prison conditions,” the National Human Rights Commission “not only inspects prisons, but also conducts interviews with prisoners. Its findings, together with appropriate advice and suggestions, are conveyed to the authorities concerned for their consideration.”[46] Given concerns voiced by a number of witnesses in respect of prison conditions in Burma (discussed later in this report) the Subcommittee was particularly pleased to learn of this aspect of the Commission’s mandate. It should be noted that in order to be effective in improving prison conditions, international standards require that the organizations undertaking prison monitoring visits be granted unrestricted access to all places of detention, their installations and facilities, as well as access to all relevant information. Monitoring bodies also must be able to conduct private interviews with persons deprived of their liberty and must be free to choose whom they interview.[47] We hope that Burma’s National Human Rights Commission will conduct its future prison inspections in accordance with such standards.

Although the establishment of the Commission reflects a willingness to protect and promote human rights in Burma, we were told that the Commission faced funding problems because it lacked a legislative or constitutional basis. Indeed, in March 2012, the Burmese Parliament refused the Government’s budget proposal for the Commission on the “grounds that its formation was unconstitutional.”[48] We note that as a result of this situation, the Special Rapporteur on human rights in Myanmar recommended in his March 2012 report that the government codify the establishment of the Commission “either by a constitutional provision or by a law of Parliament.”[49]

The Subcommittee is heartened by the decision of President Thein Sein to create a national human rights commission and views his decision as a very positive step. As legislators, we also understand the importance of parliamentary scrutiny over the expenditure of public funds. The Subcommittee hopes that the Government of Burma will ensure, as soon as possible, that the commission be provided with an appropriate legal basis that is fully consistent with the UN’s Paris Principles, a set of international standards which aim to ensure that national human rights institutions can operate in an effective, independent and impartial manner.[50] Members note that the commission will need an adequate and appropriate operating budget in order to be effective.

3. Release of Political Prisoners

International human rights norms prohibit states from depriving individuals of their liberty for peacefully exercising their internationally protected human rights, including the rights to freedom of religion, expression, assembly or association, or their right to participate in the governance of their country, including through elections. Discriminatory arrest and detention for the purposes of ignoring or refusing to recognize the equal enjoyment of human rights, such as detention on the basis of a person’s ethnicity or political or religious beliefs, is also prohibited. Moreover, international human rights law guarantees to all persons the equal right to a fair and public hearing by an independent and impartial tribunal. In criminal trials, the defendant must be presumed innocent and be able to mount a defence against the charges.[51] The Burmese regime’s detention of large numbers of political dissidents and others imprisoned for political reasons, without a fair trial, has been a concern of Canada and the international community for many years.[52] In this context, witnesses before the Subcommittee highlighted the importance of the Burmese government’s recent releases of political prisoners as part of recent reforms.

On 13 November 2010, within days of the flawed general election, the Burmese government released from house arrest Daw Aung San Suu Kyi, who had spent the better part of the last 20 years in detention solely on the basis of her political beliefs and her exercise of her democratic rights. Members were also told that a small number of political prisoners were released in the spring of 2011 as part of broader prisoner amnesties, followed by the release of over 200 political prisoners in October 2011 and a further 650 in January 2012, “including several high-profile dissidents and political figures.”[53] Reports indicate that additional political prisoners have been released since that time.[54] Those released included dissident monks involved in the saffron revolution, a number of leaders of the 1988 student protests, members of the NLD, comedian and pro-democracy activist Zarganar (also transliterated[55] into English as Zargana), a number of journalists and bloggers, a small number of ethnic minority leaders, as well as former Prime Minister Khin Nyunt and other former military intelligence officials.[56]

The Subcommittee agrees with Mr. Aung Din, Executive Director, U.S. Campaign for Burma, who characterized the recent progress towards the release of political prisoners as “remarkable.” It is our sincere hope that the Government of Burma will put into place a credible, independent and transparent process to ensure the identification and release of all remaining political prisoners as it continues to transition towards democracy.

4. Freedom of Expression, Assembly and Association

The Universal Declaration of Human Rights protects freedom of opinion and expression, which includes the right to receive and impart information through the media and across national frontiers.[57] The right to freedom of peaceful assembly and association, which protects the right to peacefully protest as well as the right to form organizations such as political parties, labour unions and civil society organizations, is also protected under the Universal Declaration of Human Rights. These rights are similarly protected under the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, which Burma has ratified. The right of employers and workers to freely form and join organizations to defend their interests is also protected under the ILO Convention concerning Freedom of Association and Protection of the Right to Organise (No. 87).

For decades, the Burmese military government imposed very severe restrictions on freedom of expression, association and assembly, including draconian pre-publication censorship. The Government also banned foreign publications, websites and social media platforms. The Subcommittee is encouraged that over the last 18 months, some of these restrictions have begun to be relaxed.

Since Burma’s reform process began, the Subcommittee was told that Burma has unblocked at least 30,000 websites, as well as Twitter and Facebook, which have the potential to greatly enhance people-to-people communication. Some Burmese dissident media that publish outside Burma report that their websites have been unblocked inside the country and that they are experiencing an increase in web-traffic coming from within Burma. In central Burma, we were told that the government now permits the sale of international newspapers. Over 200 Burmese publications, mostly dealing with entertainment and sports, may now be published, although some censorship remains. The Subcommittee was told that President Thein Sein has announced that a new media law is expected to be implemented.[58]

Freedom of the media and freedom of expression, including the right to dissent, are critical to the development of a democratic society. The Subcommittee sincerely hopes that the Burmese government’s first steps toward greater internet and media freedom will lead to full respect for the right to freedom of expression, including the right to receive and impart information. Denied their voice for so many decades, the people of Burma deserve nothing less than an end to media censorship and arbitrary restrictions on freedom of expression that do not meet the most exacting international human rights standards.

Restrictions on the freedom of expression of political opponents have also been significantly relaxed. Daw Aung San Suu Kyi has been able to travel and speak freely in Burma and in foreign countries. She was also able to campaign during the by-elections, when, in the words of Mr. Giokas, “the country was basically festooned with pictures of her.”[59] Mr. William Davis, from the organization Physicians for Human Rights, told the Subcommittee that “[i]n Rangoon, for example, people are now allowed greater media freedoms, and iconic Aung San Suu Kyi T-shirts and memorabilia are no longer forbidden.”[60]

In the Subcommittee’s view, this example illustrates the close relationship of the rights to freedom of expression, assembly and association with democratic rights such as the right to vote and to participate in government. In a country just emerging from decades of repression such as Burma, a key benchmark for democratic progress will be the ability of individuals and communities to freely organize themselves in order to articulate their interests, seek representation in the legislature, and demand that their government and elected representatives ensure their human rights. Likewise, the ability for interested groups and communities to organize themselves to voice concerns and demand that non-state actors respect their human rights will be a key indicator of the success of Burma’s transition to democracy. In order to respond to these demands, political parties, candidates for office, civil society organizations, and labour unions must be able to receive and impart information from individuals, develop political platforms for change and articulate their demands.

The Subcommittee was therefore pleased to learn that the Special Rapporteur on human rights in Myanmar reported in March 2012 that the Burmese Parliament had passed new legislation related to freedom of association and assembly, including amending the Political Party Registration Law and passing the Peaceful Demonstration and Gathering Law, as well as the Labour Organizations Law.[61] Mr. Humphries noted that the Burmese people are beginning to take advantage of some of their newfound freedoms, staging protests in some areas.[62] These reforms represent progress by the Burmese government towards compliance with its obligations under international law as well as with the human rights guaranteed in the 2008 Burmese constitution.

In addition to political parties, local and international NGOs, civil society organizations as well as individual dissidents, activists and human rights defenders[63] can play a key role in ensuring transparency and accountability in governance. The Subcommittee was pleased to learn, therefore that the Government of Canada currently supports, through its development funding, programs to improve the capacity of civil society organizations that “access, document, and disseminate information on human rights, including women’s rights, and on environmental sustainability.”[64]

Representatives from the Canadian International Development Agency (CIDA) told the Subcommittee that they have received anecdotal information from some NGOs that work in conflict areas along the Thai-Burmese border indicate that these groups have seen a degree of improvement in their ability to operate.[65] The Subcommittee believes that the skills and capacity developed by organizations based outside Burma and in its border regions will provide an important springboard for the development of such capacity throughout the country. Increased freedom of action for such NGOs shows that Burma is starting to move in the right direction. This momentum needs to be sustained.

The Subcommittee is hopeful about these reforms and encourages the Government of Burma to continue expanding these freedoms. We believe strongly that freedom of opinion and expression are two key building blocks in the creation of a democratic society. Freedom of expression, including a free and uncensored media, provides individuals with the ability to peacefully express, develop, and exchange opinions. The free exchange of opinions and the ability to communicate with non-governmental and inter-governmental organizations is closely connected with the rights of individuals to organize themselves into political associations, labour unions and trade associations, civil society organizations and other groups to advocate for the recognition and respect for their interests and rights. We also wish to highlight the importance of the right to defend human rights[66] and the tireless effort of individuals and groups around the world who do such work, often at considerable personal risk.

It is the Subcommittee’s view that full enjoyment of these fundamental freedoms for all people in Burma is essential to ensure transparency and accountability in democratic governance, and ultimately, the protection and promotion of all human rights. The Government of Canada has provided important support for civil society organizations working in Burma and on its borders in the past, and we believe that Canadian engagement and support can continue to play an important role as the country moves toward a democratic future.

5. Forced Labour

Burma is notorious for using forced or compulsory labour in violation of its obligations under the ILO’s 1930 Forced Labour Convention (No. 29).[67] Under this ILO treaty, forced labour is defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily,” other than work of a purely military nature during compulsory military service required by law, work during situations of emergency, work or service exacted as a result of a conviction in a court of law under the supervision and control of a public authority (and not for the benefit of a private person or entity), and “normal civic obligations,” including minor community service.[68]

In a 2011 observation, the ILO’s Committee of Experts on the Application of Conventions and Recommendations, an expert body that supervises the implementation of ILO conventions,[69] described the history of the use of forced labour in Burma as “extremely serious.”[70] In 1998, an ILO Commission of Inquiry concluded that the “Government’s gross, long-standing and persistent non-observance of the Convention” had led to a practice of “widespread and systematic” use of forced labour in the country.[71] Forced labour by the military has been a particular problem.[72] Aware of Burma’s historical record on forced labour, the Subcommittee inquired of witnesses whether recent reforms had reduced its prevalence.

The Subcommittee was informed that forced labour remains a problem in Burma.[73] That said, the involvement of the ILO has improved the situation in some regions, for example in Chin State, where there was a decrease in the number of incidents of forced labour involving the Burmese military in 2012.[74] The Special Rapporteur on human rights in Myanmar reports that the ILO continues to work with the Government of Burma on issues related to forced labour, including underage military recruitment and forced child labour, in the context of an individual complaints mechanism agreed to by the ILO and the Burmese Government under a “Supplementary Understanding” reached in 2007.[75] In recent comments on the issue, the ILO welcomed positive changes with respect to forced labour in Burma as part of an agreement in principle between the ILO and the Government of Burma “on the development of a full joint strategy for the elimination of all forms of forced labour by 2015.”[76] The ILO’s Governing Body has noted that the Government of Burma recently adopted national legislation repealing the Villages and Towns Act of 1907, which had legalized problematic practices, setting out a legislative definition of forced labour, and criminalizing forced labour in the country.[77] These initiatives complement awareness raising activities in ethnic minority areas and engagement with the Burmese military undertaken by the ILO in 2010-2011.[78]

The Subcommittee was very pleased to learn of these positive developments. We note, however, that concern about forced labour in Burma remains high.[79] The next step for the Government of Burma is to ensure that the new law is effectively implemented throughout the country’s entire territory, including by ensuring that national laws prohibiting forced labour are interpreted in accordance with international standards, that violations are strictly prosecuted, and that perpetrators are appropriately punished. We believe that the effective implementation of the strategy to eradicate forced labour by 2015, throughout Burmese territory and in respect to all persons regardless of ethnicity or religion, should be factored into Canada’s assessment of the sincerity and durability of the country’s reforms.

B. Progress on Social, Economic and Cultural Rights

In their testimony before the Subcommittee, witnesses did not discuss progress made in Burma on economic, social and cultural rights in sufficient detail for the Subcommittee to form any conclusions. In the interest of presenting a fair picture of the human rights situation in the country, however, the Subcommittee has included along with its discussion of concerns regarding economic, social and cultural rights later in this report, information regarding positive aspects of Burma’s record contained in the most recent report of the Special Rapporteur on human rights in Myanmar.

C. Progress Related to Ethnic Armed Conflicts

During our study, the Subcommittee came to understand that achieving a peaceful resolution of the internal armed conflicts between the Burmese military and armed ethnic minority groups, which have plagued the country since 1948 — shortly after it gained independence from Britain — will be a key challenge that Burma will need to overcome in order to cement democratic reforms and ensure respect for human rights.[80]

In his testimony, Mr. Humphries stressed that the roots of Burma’s ethnic conflicts run deep. During World War II, nationalists from the majority Burman ethnic group initially sided with invading Japanese forces to fight the colonial power. On the other hand, most ethnic minority groups remained loyal to the British and to the Allies and formed armies to support the Allied war effort, partly because they believed that the British would guarantee them some measure of independence after the war. As a consequence, for a time during the Second World War there was conflict between Burman and ethnic minority forces, and in this context, Burman militias were accused by the other ethnic armies of various abuses. Although the Burman nationalist forces led by General Aung San eventually came to support the Allies, this history of conflict created significant tensions between ethnic minorities and the Burman leadership in the period immediately following the end of the war.[81]

In the post-War period, Burma gained independence from Britain under a constitution that contained certain power-sharing guarantees for some ethnic minority groups. However, these arrangements were uneven and in practice, were never fully implemented; leading to the outbreak of armed rebellion by Burma’s various ethnic armies between the early 1950s and the mid-1960s. Decades of brutal, low-intensity fighting ensued. The history of Burma’s ethnic conflicts is discussed in more detail in a later section of this report dealing with the Subcommittee’s concerns about respect for the human rights of individuals from ethnic minority communities.

Following the crackdown on student protestors in 1988 and through until the mid‑1990s, the Burmese military negotiated a number of ceasefire agreements with most of the major ethnic armed groups, although notably not with the principal Karen army, the Karen National Union. Nevertheless, brutal, low-level fighting has continued in some areas.[82] The Subcommittee was told that there was a flare-up in violence between ethnic armies in 2010, after the Burmese military unexpectedly ordered them to transform into “Border Guard Forces” under partial Burmese command.[83]

In tandem with Burma’s recent political reforms, the Subcommittee was informed that progress has been made with regards to reaching ceasefires with many of the ethnic armies that have been fighting the Burmese military on and off since the 1950s and 1960s.

Mr. Giokas told members that the inking of a number of ceasefire agreements was a very positive first step.[84] The Special Rapporteur on human rights in Myanmar noted in his March 2012 report that he had been informed of a three-step ‘roadmap’ set out by President Thein Sein: “the conclusion of a ceasefire agreement; political negotiations and dialogue; and, eventually, discussion in Parliament where all agreements would be formalized and outstanding issues settled.”[85] Mr. Giokas summed the situation up succinctly, stating that “[t]hese ceasefires must be followed by more comprehensive peace and reconciliation talks and agreements, but we are encouraged that the government appears to be willing to engage in dialogue.”[86]

The Subcommittee is convinced that the recent ceasefire negotiations with ethnic minority groups represent an important initial move towards a durable, political settlement of the grievances of ethnic minority peoples in Burma. We believe, however, that the negotiation of ceasefire agreements is only the first step in a long process. As Mr. Humphries explained, true peace and reconciliation in Burma will require that the government and the military come to understand that their country’s ethnic and religious diversity is a strength to be drawn upon in building a democratic nation, rather than a weakness to be ruthlessly suppressed by dictators. The Subcommittee hopes that Canada will take appropriate steps to support this peace and reconciliation process over the long term.

Overall, the Subcommittee acknowledges the reforms Burma has made so far, and believes that these first steps toward democracy must be part of an ongoing process. There remains much work to do. We encourage Burma’s leaders and parliamentarians to maintain the political will to continue on this path of democratization, political liberalization and national reconciliation and believe that Canada should continue to support these efforts.