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SPECIAL RAP ON MYANMAR (Pt III)



 
 
       1998 REPORT OF THE SPECIAL RAPPORTEUR ON MYANMAR 
              TO THE UN COMMISSION ON HUMAN RIGHTS
                                
          (posted in III parts for easier downloading)
 
 
                            (Part III)
 
 
III. THE GENDER PERSPECTIVE
 
  1. In its resolution 1997/64, the Commission on Human Rights
extended the mandate of the Special Rapporteur, as contained
in Commission resolution 1992/58, and requested the Special
Rapporteur to keep a gender perspective in mind when seeking
and analysing information. 
 
  1. Gender-specific reporting and analysis entail an
examination of gender as a determining factor in respect of:
(a) the form which a human rights violation takes; (b) the
circumstances in which the violation occurs; (c) the
consequences of the violation for the victim; and (d) the
availability and accessibility of remedies. 
 
  2. The term "gender" is used as referring to the socially
constructed roles of women and men in public and private life.
It denotes the significance attached within societies and
communities to sex identity. Historically, different cultures
construct gender in different ways so that women's roles, the
value that their particular society places on those roles, and
the relationship with men's roles may vary considerably over
time and from one setting to another. To varying degrees in
all societies, discrimination against women and their unequal
treatment are systematic and reflected in the structure     
and functioning of public institutions, de jure and de facto
family relations, access to economic resources, and legal
systems. It is mainly for this reason that the mere enactment
of appropriate laws is not sufficient to eradicate
discrimination or inequality on grounds of sex. Other
measures,
educational, social and administrative, among others, are
particularly necessary to change societal attitudes and     
acceptance of traditional values.
 
A. International norms
 
  1. The Government of Myanmar is bound by a number of
international conventions and declarations to which it is
party to prohibit discrimination against women and to ensure
the effective enjoyment of their human rights. A general
prohibition against discrimination and unequal treatment is
found in article 2 and 7 of the Universal Declaration of Human
Rights, according to which "everyone is entitled to all the
rights and freedoms ... without any distinction of any kind,
such as race, colour, sex ... ." and "all are equal before the
law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection
against any discrimination in violation of this Declaration
and against any incitement to such discrimination." Articles 2
(1), 3 and 26 of the International Covenant on Civil and
Political Rights contain a similar prohibition. A more
elaborate and explicit prohibition of discrimination against
women in all its forms is found in the Convention on the
Elimination of All Forms of Discrimination against Women.
 
  1. The traffic of women and suppression of prostitution is
regulated in the Convention for the Suppression of the Traffic
in Persons and of the Exploitation of the Prostitution of
Others, signed by Myanmar on 14 March 1956 but not yet
ratified. 
 
  2. The Special Rapporteur also recalls the Declaration on
the Elimination of Violence against Women (General Assembly
resolution 48/104). Article 2 prohibits violence against women
(a) in the family, (b) within the general community, and (c)
by the State. Article 1 of the Declaration defines "violence
against women" as "any act of gender-based violence that
results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life". 
 
  3. The Special Rapporteur welcomes the ratification by
Myanmar of the Convention on the Elimination of All Forms of
Discrimination against Women. Article 1 of the Convention,
which came into force for Myanmar on 21 August 1997, defines
discrimination against women as "any distinction, exclusion or
restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social,
cultural, civil or any other field". The Union of Myanmar is
required under article 18 of the Convention to submit, within
one year, a report to the Committee on the Elimination of
Discrimination against Women on the legislative, judicial,
administrative and other measures it has adopted to give
effect to the Convention and on the progress made in its
implementation.
 
  4. In the absence of a visit to Myanmar, the Special
Rapporteur is unable to report comprehensively on the
situation of women in situ. The following paragraphs highlight
some legal provisions and other material which the Special
Rapporteur has come across in his work. 
 
  5. According to article 22 of the Myanmar Constitution of
1974, which was repudiated by the SLORC in 1988, "all citizens
shall be equal before the law, regardless of race, religion,
status or sex." In addition, in article 154 the following
rights of women are explicitly defined: (a) women shall enjoy
equal political, economic, social and cultural rights; (b)
mothers, children and expectant mothers shall enjoy those
rights as prescribed by law; (c) children born of citizens
shall enjoy equal rights; and (d) women shall enjoy the
freedoms and rights guaranteed by laws as regards marriage,
divorce, division of property, succession and custody of
children. It does not appear that, after the repudiation of
the Constitution, any law, decree, or order of a basic   
character has been enacted to guarantee the rights of women
provided in the defunct Constitution.
 
B. Myanmar women in public life
 
  1. As is the case for men, Myanmar women who become
politically active are harassed and arbitrarily arrested,
especially those who belong to parties or movements in
opposition to the regime. There would not appear to be any
women in the SPDC, in the Cabinet, or in the 14-member
Advisory Group referred to in SPDC Notification No. 3/97 of
15 November 1997.
  2. In the note sent by the Permanent Mission of Myanmar
referred to in paragraph 19 of this report, a number of
meetings of the Central Women's Work Committee are reported to
have taken place in the compound of Daw Aung San Suu Kyi
between 11 and 17 December 1997. This is an indication that
women are active in the political field, at least in
opposition.
 
C. The situation of refugee women
 
  1. The Special Rapporteur has reported on the situation of
Myanmar refugees and internally displaced persons in his
previous reports. According to testimony received by the
Special Rapporteur, many of the refugees reported about in his
report to the General Assembly (A/52/484) fled in order to
escape forced labour, portering and starvation. The situation
of nursing mothers or women with young children is
particularly harsh. There is no doubt that refugee women,
particularly those on their own, are more vulnerable than men
to exploitation and deprivation of rights at every stage of
their flight. The Special Rapporteur expresses his concern
that, according to information received, the flow of refugees
continues. In late October and early November 1997 Karen
refugees in groups of 50-100 people, mostly women, children
and old people, reportedly entered Ban Letongkhu, Ban Thijochi
and Ban Kuilertor in Umphang, about two kilometres from the
border with Thailand. Myanmar troops had started to round up
and send Karen civilians to a controlled area away from     
the border.
 
D. Women and forced labour
 
  1. In recent years, increasing numbers of women, including
young girls and the elderly, have been forced to work on
infrastructure projects and to act as porters in war zones.
Such uncompensated forced labour continues despite Myanmar's
ratification of ILO Convention No. 29 Concerning Forced or
Compulsory Labour. The Special Rapporteur has on several
occasions reported on the use of forced labour for various
development and infrastructure projects. In these projects
women are not spared forced recruitment, even when they are
pregnant or nursing their infants. Those who are too weak for
the strenuous work have to hire another person or face a fine.
On the work site, the forced labourers do not receive
appropriate medical treatment. Further, they are reported to
receive no remuneration and have to provide their own     
food. While away the women cannot work on their farms, which
results in food shortages for the family. On the work site
women, like men, risk exhaustion, accidents and lack of
medical treatment. They are also victims of many other serious
human rights violations, such as beatings, rape and murder.
 
  2. The Special Rapporteur has on more than one occasion
reported on forced portering. As porters women are more
vulnerable than men, since they have been reported to have
been used as (a) forced labour to work as porters; (b) human
shields; and (c) entertainment for soldiers, which often ends
in rape. For instance, on 8 June 1997, SLORC troops from
Murngpan allegedly arrested 17 villagers (10 men and 7 women)
at Ter Hung village and forced them to carry military supplies
from Kaeng Twang area to Murngpan. When they reached Murngpan,
the men were released while the women were detained. During
the night all the women were reportedly gang-raped before
being released the next morning. 
 
  3. The Special Rapporteur is concerned that real access to
the justice system by the victims is virtually non- existent.
 
IV. CONCLUSIONS AND RECOMMENDATIONS
 
A. Conclusions
 
  1. The Special Rapporteur regrets that, in spite of his
continuing efforts to obtain the authorization of the
Government of Myanmar to visit the country and in spite of the
encouraging statements made by the Permanent Representative of
Myanmar, both in the Commission on Human Rights and the
General Assembly, he has not so far obtained any response. In
this regard, the criticism levelled by the authorities against
the reports of the Special Rapporteur is, in large part, based
on the ground that the reports rely on information received
from outside the country and do not reflect the actual
situation in Myanmar. It stands to reason that, if the General
Assembly and the Commission are to benefit from an assessment
of that criticism, the agreement of the Myanmar authorities to
a visit by the Special Rapporteur is essential.
 
  2. The Special Rapporteur has observed the beginnings of a
positive attitude with respect to the easing of restrictions
on political parties, especially in relation to the activities
of the NLD and its right to hold meetings. This change on the
part of the authorities is welcome. However, it would appear
that this change is of a purely formal and limited nature
given the virtually complete control which the authorities
seem to exercise on the freedoms of association, assembly and
expression. The Special Rapporteur notes that the absence     
of respect for the rights pertaining to democratic governance
continues to be at the root of all the major violations of
human rights in Myanmar insofar as this absence is inherent in
a power structure which is autocratic and accountable only to
itself, thus resting on the denial and repression of
fundamental rights. The Special Rapporteur concludes that
genuine and enduring improvements in the situation of human
rights in Myanmar cannot be attained without respect for the
rights pertaining to democratic governance. In this regard, he
notes with particular concern that the electoral process     
initiated in Myanmar by the general elections of 27 May 1990
has still, after seven years, to reach its conclusion and that
the Government still has not implemented its commitment to
take all necessary steps towards the establishment of
democracy in the light of those elections.
 
  3. On the basis of his examination of the situation of human
rights in Myanmar over the past year, the Special Rapporteur
has unfortunately come to the general conclusion that, except
for the apparent easing of restrictions on political
activities as referred to in paragraph 69, there has been no
change in that situation since his last report to the General
Assembly and to the Commission on Human Rights. The 
resolutions of the General Assembly and of the Commission have
gone largely unheeded by the Government of Myanmar. The result
is that the conclusions of the Special Rapporteur as contained
in his reports to the General Assembly at its fifty-second
session (A/52/484, annex, paras. 143-151) and the Commission
on Human Rights at its fifty-third session (E/CN.4/1997/64,
paras. 101-107) remain substantially the same, except for the
fact that, according to certain reports, a meeting took place
in mid-July 1997 between a representative of SLORC and an
official of the NLD. There have been suggestions that the     
substance of those discussions was political in character but
the Special Rapporteur has no concrete information in this
regard. 
 
  1. The well-documented reports, photographs and testimonies
received by the Special Rapporteur lead him to conclude that
extrajudicial, summary or arbitrary executions, the practice
of torture, portering and forced labour continue to occur in
Myanmar, particularly in the context of development programmes
and of counter-insurgency operations in minority-dominated
regions. 
 
  2. With regard to arbitrary arrest and detention, the
Special Rapporteur does not doubt that such violations take
place on a wide scale if for no other reason than that an
examination of the laws in place show that such violations are
legal and may easily occur. At the same time, the absence of
an independent judiciary, coupled with a host of executive
orders criminalizing far too many aspects of normal civilian
conduct, prescribing enormously disproportionate penalties and
authorizing arrest and detention without judicial review or
any other form of judicial authorization, leads the Special
Rapporteur to conclude that a significant percentage of all
arrests and detentions in Myanmar are arbitrary when measured
by generally accepted international standards. In this regard,
the Special Rapporteur expresses his deep concern at the
continued detention of many political prisoners, in particular
elected representatives, and the continuing arrests and
harassment of supporters of democratic groups in Myanmar.
 
  3. Because of both visible and invisible pressures, the
people of Myanmar live in a climate of fear in which whatever
they or their family members may say or do, particularly in
the exercise of their political rights, involves the risk of
arrest and interrogation by the police or military
intelligence. The Special Rapporteur notes that NLD leaders
cannot assemble in a group, cannot freely discuss, and cannot
publish or distribute printed or video material. In this
situation it is difficult to assume that open discussion and
free exchanges of views and opinions can possibly take place
in Myanmar, unless they are in support of the military regime.
 
  4. Turning to freedom of movement and residence in Myanmar,
including the right to leave and re-enter one's own country,
the Special Rapporteur concludes that there are clear
violations of those freedoms in both law and practice.
Specifically, severe, unreasonable and, in the case of the
Muslim Rakhine population, racially based restrictions are
placed on travel inside the country and abroad. On the matter
of internal deportations and forced relocations, the Special
Rapporteur concludes that the Government's policy violates
freedom of movement and residence and, in some cases,
constitutes discrimination based on ethnic considerations.
 
  5. In his report to the General Assembly, the Special
Rapporteur analysed the laws relating to citizenship and their
effect on the exercise of civil and political rights. He
raised serious questions of the consistency of those laws with
generally accepted international norms, since those laws
appear to be discriminatory on the basis of ethnicity, fail to
ensure equality before the law, and do not provide special
measures of protection to which children are entitled. In the
short term, this situation produces serious violations of the
rights of both minorities and other persons living in the
country as well as a sense of not belonging to Myanmar. In the
long term, the situation is likely to discourage a sense of
national unity and to encourage and exacerbate secessionist
movements likely to be destructive of a multi-ethnic and
multi-religious nation. Sheer repression following efforts at
ceasefire agreements would not appear to be the answer.
 
  6. The Special Rapporteur welcomes the ratification by
Myanmar of the Convention on the Elimination of All Forms of
Discrimination against Women in 1997. In this regard, he hopes
that the Government of Myanmar will also ratify the Convention
for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others, signed by Myanmar
on 14 March 1956.
 
B. Recommendations
 
  1. In the light of the foregoing conclusions, the Special
Rapporteur submits the following recommendations.
 
  2. To ensure that the institutions of government genuinely
reflect the will of the people, in conformity with article 21
of the Universal Declaration of Human Rights, steps should be
taken to allow all citizens to participate freely in the
political process, in accordance with the principles of the
Universal Declaration of Human Rights, and to accelerate the
process of transition to democracy, in particular through the
transfer of power to the democratically elected
representatives. The institutions of the Union of Myanmar
should be such as to ensure that the executive authorities are
accountable to the citizenry in a clear and meaningful way.
Furthermore, steps should also be taken to restore the
independence of the judiciary and to subject the executive to
the rule of law and render unjust and unjustifiable actions
justiciable. 
 
  3. All necessary measures should be taken to accelerate the
process of transition to a democratic order and to involve in
a meaningful way in that process the representatives duly
elected in 1990. In this regard, genuine and substantive
discussions should take place without further delay between
the present military regime and the leaders of the National
League for Democracy and with other political leaders who
were duly elected in the democratic elections of 1990,
including representatives of the ethnic minorities. Certain
steps taken in July 1997 by the SLORC, and in December 1997 by
the SPDC, to initiate such discussions are a welcome and
positive development, but one which requires to be
intensified. The SPDC should do all it can to ensure
that the character and substance of the discussions are
genuine and are perceived to be so by all the participants and
the people generally. In addition, political parties should be
free to decide the composition of their own delegations for
the purposes of the dialogue. 
 
  4. Immediate measures should be taken to put an end to the
harassment of the leaders and the members of the National
League for Democracy, to ensure that the General Secretary of
the National League for Democracy is genuinely free and able
to exercise her functions without fear of attack, and to
ensure that all political parties are able freely to     
carry out their activities. In other words, the present
embargo or recess on the exercise of political rights, which
is rigidly enforced by exceptional legal and administrative
machinery, should be ended. Political "detente" should replace
the political embargo by way of a general amnesty or
otherwise.
 
  1. All political detainees, including elected political
representatives, students, workers, peasants and others
arrested or detained under martial law for the exercise of
their normal civil and political rights after the 1988 and
1990 demonstrations or as a result of the National Convention
should be immediately released. The Government should also
ensure that there are no acts of intimidation, threats or
reprisal against them or their families and should take
appropriate measures to compensate all those who have suffered
arbitrary arrest or detention.
 
  2. Constitutionality and the rule of law should be
re-established and orders and decrees should no longer be the
basis of law. All laws rendering violations of human rights
legitimate should be repealed urgently and all laws should be
given due publicity. The laws in Myanmar should be brought
into conformity with international standards regarding the
rights relating to protection of physical integrity, including
the right to life, protection against disappearance,     
prohibition of torture and cruel, inhuman or degrading
treatment, providing humane conditions for all persons under
detention and ensuring the minimum standards of judicial
guarantees.
 
  1. Particular attention should be given to conditions in the
country's prisons and all the necessary steps taken to allow
international humanitarian organizations to have access
thereto and to communicate freely and confidentially with
prisoners.
 
  2. Urgent steps should be taken to facilitate and guarantee
the enjoyment of the freedoms of opinion, expression and
association, in particular by decriminalizing the expression
of opposition views and by relinquishing government controls
over the media and literary and artistic works.
 
  3. Restrictions relating to the entry and exit of citizens
into and out of the country, as well as their movement within
the country, should be abolished.
 
  4. All discriminatory policies which interfere with the free
and equal enjoyment of property should cease and adequate
compensation should be paid to those who have been arbitrarily
or unjustly deprived of their property.
 
  5. The Government of Myanmar should fulfil its obligations
under ILO Convention No. 87 concerning Freedom of Association
and Protection of the Right to Organize of 1948. In compliance
with this Convention, it should guarantee by law the right of
trade unions to exist and operate freely. In that respect, the
Government of Myanmar is encouraged to cooperate more closely
with the ILO through a technical cooperation programme so that
the very serious discrepancies between the law and the
practice on the one hand, and the Convention on the other
hand, are eliminated urgently. 
 
  6. The Government of Myanmar is urged to comply with its
obligations under ILO Convention No. 29, prohibiting the
practice of forced labour. In this connection, the Government
of Myanmar should urgently take the appropriate measures to
repeal the offending legal provisions under the Village Act
and the Towns Act to halt the practice of forced labour. The
Government of Myanmar is encouraged to cooperate with the     
Commission of Inquiry established by the ILO. 
 
  7. Urgent steps should be taken to put an end to the
enforced displacement of persons and to create appropriate
conditions to prevent the flow of refugees to neighbouring
States. In the event that the relocation of villagers becomes
necessary in circumstances which are in conformity with
international norms, proper consultations should take place
with the villagers, including the payment of appropriate
compensation, reviewable by independent courts, and the     
taking of measures to ensure that food, housing facilities,
proper medical care and social amenities, including
appropriate arrangements for the education of children, are
provided in adequate measure in the interest of the displaced
persons. 
 
  8. The Government of Myanmar should refrain from actions
which contribute to insecurity affecting the population, such
as the use of military force and bombardments against civilian
targets along the border with Thailand. In this regard, given
the great number of allegations of summary or arbitrary
executions and other grave human rights violations,
particularly in areas where ethnic minorities live or to
which they are being forcibly displaced, it is of the utmost
importance that the new government conduct a high-level
inquiry with broad terms of reference, specifically to gauge
the extent of the violations and to propose remedial measures.
 
  9. In order to promote repatriation of the Myanmar Muslims
and other minorities, the Government should create the
necessary conditions of respect for their human rights. The
Government should ensure, in law and in practice, their safe
return and resettlement in their villages of origin. To this
end, it should also promote their complete civil, political,
social, economic and cultural participation in Myanmar without
restriction or discrimination.
 
 10. The laws relating to citizenship should be revised in
order to ensure that they have no unfavourable incidence on
the exercise of civil and political rights and to be
consistent with generally accepted norms. In particular these
laws should be substantially revised so as to remove all
discriminatory features based on ethnicity, legal status     
and adverse impact on the right of children to have a
nationality. Further, necessary measures should be adopted by
the administration to ensure that citizenship can be obtained
without burdensome and unrealistic administrative procedures
and requirements. These laws should also be brought into
conformity with the principles embodied in the 1961 Convention
on the Reduction of Statelessness. Consideration should also
be given by Myanmar to ratify that Convention as well as the
1951 Convention relating to the Status of Refugees and its     
1967 Protocol. 
 
 11. Military and law enforcement personnel, including prison
guards, should be thoroughly trained and informed as to their
responsibility to treat all persons in full accordance with
international human rights norms and humanitarian law. Such
standards should be incorporated in Myanmar law, including the
new constitution to be drafted.
 
 12. Given the magnitude of the abuses, the Government should
subject all officials committing human rights abuses and
violations to strict disciplinary control and punishment and
put an end to the culture of impunity that prevails at present
in the public and military sectors. 
 
 13. The Government of Myanmar is urged to fulfil in good
faith the obligations it has assumed under Articles 55 and 56
of the Charter of the United Nations to take joint and
separate action in cooperation with the Organization for the
achievement of universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as
to race, sex, language or religion. In this respect, the
Special Rapporteur wishes to encourage the Government of
Myanmar to adopt, as one of the basic constitutional
principles, the provisions of the Universal Declaration of
Human Rights, a copy of which should be made widely available
in the main languages spoken in Myanmar.
 
 14. The Government of Myanmar should consider accession to
the International Covenants on Human Rights, the Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and the two Protocols Additional to
the Geneva Conventions of 1949. In the meantime, it should
ensure that the principles proclaimed in those international
instruments are applied, in order to evidence a firm     
commitment to the promotion and protection of human rights
without discrimination of any kind.
 
 15. The Government of Myanmar should take early steps to
amend all existing laws, orders or decrees in order to ensure
that its international obligations with regard to the rights
of women are effectively implemented, including by the
adoption of administrative and other measures as well as the
allocation of sufficient funds. In addition, in the drafting
of a new constitution, steps should be taken to ensure that
the rights of women with regard to equality and non-
discrimination are guaranteed by the enactment of basic     
provisions. 
 
                                 
                         END OF DOCUMENT
 
 
Copyright 1998. Office of the United Nations High Commissioner
for Human Rights, Geneva, Switzerland