Myanmar National Human Rights Commission

1. Myanmar NationalHumanRights Commission Prepared by HumanRightsEducation Institute of Burma (HREIB) and BurmaPartnership (BP)

2. What Do We Know? The Myanmar National Human Rights Commission (MNHRC) was established under Union Government's Notification No. 34/2011 dated 5 September 2011

3. What Do We Know? Under Union Government's Notification No. 34/2011members of the MNHRC are: • U Win Mra, Chairman, Ambassador (Retd) • U Kyaw Tint Swe, Vice-Chairman, Ambassador (Retd) • U TunAungChein, Member Professor (Retd), Department of History • U HlaMyint, Member Ambassador (Retd) • U Than Swe, Member Director-General (Retd), Forest Department • DrNyanZaw, Member, State Medical Officer (Retd) • DrDaw Than Nwet, Member Professor (Retd), Department of Law • Daw Saw KhinGyee, Member Professor (Retd), Department of International Relations • U Tin Nyo, Member, Director-General (Retd), Basic Education Department • U KwaHteeyo, Member, State Law Officer (Retd) • U KhinMaung Lay, Member, Director (Retd), Labour Department • U LapaiZawgun, Member, Consul (Retd) • U NyuntSwe, Member Deputy Director-General (Retd), Ministry of Foreign Affairs • Daw San San, Member, Director (Retd), Labour Department • U Sit Myaing, Secretary, Director-General (Retd), Social Welfare Department

4. What Do We Know? Responsibilities and entitlements of the MNHRC are as follows (according to a letter of the MNHRC): • To accept complaint letters on violation of citizens' fundamental rights stipulated in the Constitution of the Republic of the Union of Myanmar, to investigate the complaints and to forward the findings of investigation to relevant government departments and organs so as to take necessary action • To investigate information acquired on violation of citizens' fundamental rights and to forward the findings of investigation to relevant government departments and organs so as to take necessary action • To assess whether rights defined in international human rights conventions to which Myanmar is a party are fully enjoyed, and to advise on Myanmar's reports to be submitted to international human rights organizations

5. What Do We Know? • To assess whether Myanmar should join the international human rights conventions to which Myanmar is not yet a party, and to present recommendation on it • To contact and work with UN agencies and partner organizations both inside the country and abroad which are working for promotion and protection of human rights • To assist on subject matter regarding human rights capacity building programs and research programs • To initiate and assist in raising public awareness on human rights promotion and protection • To carry out tasks entrusted occasionally by the state President with regard to human rights promotion and protection

6. What Do We Know? • The Myanmar National Human Rights Commission shall report directly to the President on its conducts and human rights developments in annual reports • When carrying out its functions, the Myanmar National Human Rights Commission can call upon relevant persons for questioning. It can call for viewing of relevant documents with the exception of those particularly prohibited under state requirements • No one can sue the Myanmar National Human Rights Commission, Commission members or those assigned tasks by the Commission, whether in criminal proceedings or in civil proceedings, for executing in sincerity responsibilities and entitlements ascribed in this notification • The tenure of the Commission Chairperson and members shall be the same as that of the state President, and they can serve for two terms

7. Assessing MNHRC’s Compliance with The Paris Principles • No official information about the procedure, mandate, and responsibilities of the commission has been made accessible to the public and, in particular, victims of human rights violations • The entire process of establishing the NHRC has been everything but transparent • The lack of transparency and the little information known about the MNHRC are in themselves violations of the Paris Principles • Assessing the MNHRC can therefore only be done against the few information available, which are enough to conclude that the commission is not independence and effective and does not comply with the Paris Principles

8. Mandate of The MNHRC The mandate of a NHRC must be set out in the constitution or in legislation • MNHRC was established by a Government Notification • Its mandate has no legal foundation, it is only layed out in a MNHRC’s letter The mandate must be clearly defined, as broad as possible and based on human rights standards • Only little information is available in a one page letter of the MNHRC • MNHRC’s mandate is based on the 2008 Constitution which itself violates the rights of the people of Burma The mandate must be to « promote and protect » human rights • MNHRC’s mandate does not stipulate the « promotion and protection » of human rights

9. Responsibilities of the MNHRC NHRIs should have the power to comment on existing and draft laws • The MNHRC does not have this responsibility NHRIs should have the power to monitor the national human rights situation without prior approval and to freely publicize its advises • The MNHRC needs to require priorpresidential authorization for prison visits and interviews with prisoners are conducted in the presence of prison officials • The MNHRC hasen’t clarify whether it can monitor private and public bodies such as the police and the Burma Army • The Chairman of the MNHRC stated that it will not monitor and investigate cases of human rights violation in ethnic conflic affected areas

10. Responsibilities of the MNHRC NHRIs should have the power to co-operate with regional international bodies NHRIs should not submit reports to international bodies on behalf of a government but rather on their own behalf • MNHRC has the responsibility to “advise on Myanmar’s reports to be submitted to international human rights organisations.”

11. Responsibilities of the MNHRC Receiving complaints from individuals or groups Many information about the capacity of the MNHRC to receive complaints remain unknow while they should be clearly detailed in a founding law • Can civil society organisations make complaints on behalf of victims? • Has the MNHRC put in place protection mechanisms for the victims and witnesses? • Does the MNHC have the power to recommend reparation for victims? The MNHRC should send its reports to the public as a whole and should include complaints received and investigated, monitoring and advice given to the government

12. Composition and Pluralism The terms and conditions of the appointment and dismissal of members should be transparent and set out in the founding law of the NHRI The method of appointment should involve the parliament and ensure that representatives of the civil society have a meaningful say in the process • MNHRC’s members were choosen by the President, without any consultation and transparency regarding the selection criteriaand process

13. Composition and Pluralism Members should have the professional qualifications and experience to perform their job and a personal history of integrity, competence and independence The composition of NHRIs should reflect pluralism and include members from different sector of the society • The MNHRC’s 15 members are all retired civil servants • There are no representatives of NGOs, trade unions etc. • The Chairman and Vice-Chairman and other members have been defending the regime against allegations of human rights violations for years in their capacity of former ambassador

14. Autonomy and IndependenceLegal Autonomy The constitutional provision or law that establishes an institution should give it a distinct legal personality • The MNHRC was established by a Government Notification and has no legal personality

15. Autonomy and IndependenceOperational Autonomy NHRIs should have the power to draft their own rules of procedures that cannot be modify by an external authority • The MNHRC’s rules of procedure are being examined by the judiciary and are awaiting approval by the council of ministers NHRIs should not answer to the government but to an authority other than the executive, most usually the legislature • The MNHRC “shall report directly to the President on its conducts.” NHRIs should be able to investigate and monitor the human rights situation at their own initiatives and should not receive instructions from the government • The MNHRC will “carry out tasks entrusted by the State President.”

16. Autonomy and IndependenceFinancial Autonomy An NHRI should have control over its finances and how they may be used Funds need to be adequate and sufficient for the NHRI to carry out its mandate The parliament should approve the budget • No information about the MNHRC’s finances is available

17. Conclusion • The little information known about the MNHRC is enough to conclude that it is not an independent and effective institution and does not comply yet with the Paris Principles • The MNHRC needs to make information about its mandate, procedures and responsibilities available to the public, especially victims of human rights violations