Empowering the Myanmar Human Rights Commission

Originally appeared in The Irrawaddy

May 9, 2012

Skepticism regarding the value of the Myanmar Human Rights Commission (MHRC) has been virtually universal—leading to tired jokes that the very term is in itself an oxymoron.

A perpetual cycle of human rights violations exposed over the course of half-a-century—including systematic rape, forced labor, child soldiers, land confiscations and extrajudicial killings—has not inspired optimism that Burma’s fledgling quasi-civilian government can satisfactorily police itself.

But international reengagement in the current climate of post-elections hysteria, in the wake of pro-democracy icon Aung San Suu Kyi finally taking a seat in Parliament, has seen a renewed emphasis on the MHRC.

Catherine Ashton, EU high representative for foreign affairs and security, discussed enhancing the commission’s role during her April 17 speech on Burma. “We will now enter into an active collaboration with Myanmar, to assist the reform process and to contribute to economic, political and social development,” she said.

“We have secured more funding. In addition to ongoing programs in health, education and agriculture, I have launched a program to help the [MHRC].”

A spokesman for the EU delegation to Burma told The Irrawaddy that one of the main difficulties the MHRC currently faces is a lack of expertise and experience. “The program, which is to begin shortly, shall be implemented by the UN Office of the High Commissioner for Human Rights [OHCHR],” he said.

“The foreseen program will aim inter alia at raising awareness of the Principles Relating to the Status of Independent National Human Rights Institutions (The Paris Principles), as well as fostering a better understanding of international human rights mechanisms, leading to increased engagement by Myanmar and its civil society with those mechanisms.”

However, David Mathieson, senior researcher on Burma for Human Rights Watch, told The Irrawaddy on Wednesday that the EU must concentrate on securing the MHRC in a legal framework before looking to increase the skills of its personnel.

“You can’t run if you’re not even able to crawl yet,” he said. “So on the surface the EU is trying to help them but the Europeans have to be completely supportive of the commission turning into something real, not basically jumping through hoops to please donors.

“That’s basically where the European Union is at the moment—they don’t really care about the human rights situation in the country, they just want to prove that their approach is working and that things are miraculously improving by themselves which, of course, is not the case.”

So given the MHRC’s problems are based in its very formation, it seems a top-down approach will only cosmetically alter the body while what is needed is a complete overhaul from the ground up.

The MHRC was formed on Sept. 5, 2011, under an executive order of reformist President Thein Sein who took office last March. The 15-member body largely consists of civilians—including ethnic Chin, Karen, Kachin and Shan representatives—such as those from academia (three retired professors), foreign affairs (three retired ambassadors) and civil servants.

But as the MHRC’s formation came just one month after Tomas Ojea Quintana, the UN special rapporteur for human rights in Burma, first called for the setting up of a national human rights body, it led to criticisms that the commission was simply a smokescreen to appease the international community before the easing of trade sanctions.

Indeed, MHRC Chairman Win Mra told a press conference in February that it was premature for the newly established body to investigate allegations of human rights abuses in ethnic minority areas such as the conflict-ridden border zones.

“The national reconciliation process is political,” he told journalists at Thailand’s Ministry of Foreign Affairs. He added that “to investigate into conflict areas would not be appropriate at this time.”

And when asked whether his commission can properly investigate allegations against the all-powerful military, Win Mra was noncommittal. “This is a very difficult question,” he said. “You have to know that this is a country that has just emerged out of an authoritarian regime.”

So the MHRC seems to fall far short of the Paris Principles—the minimum conditions that must be adhered to by a national human rights body to be considered credible by its peer institutions and the UN—as is not set in a constitutional or legislative text with a clearly defined broad mandate, staffed independently nor based on universal human rights standards.

That lack of independence is demonstrated by the fact that Win Mra himself has repeatedly defended the previous ruling junta by denying the existence of government-sanctioned human rights violations in Burma during his long career as a diplomat.

“I would like to reiterate here that, as a matter of policy, Myanmar does not condone human rights violations as it is committed to the principles enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights,” he told a UN General Assembly committee in 1997.

The MHRC also has serious funding problems—a direct consequence to its lack of legislative legitimacy—in that Burma’s Union Parliament refused to approve the government’s budget proposal for the commission on March 16 on the grounds that its formation was unconstitutional.

The executive requested a budget of around 550 million kyat (US $670,000) for 2012-13, in addition to 140 million kyat ($170,000) for capital expenditure on office equipment and transportation.

However, Upper House Speaker Khin Aung Myint said that the requested budget could not be approved because the commission had not been formed with parliamentary approval and its policies and objectives had not been included in the National Planning Bill.

Mathieson was scathing about the snub saying, “If the government actually took human rights seriously then they would fund it, of course, it’s just that they don’t.”

And there certainly appears to be no shortage of work for the MHRC to tackle. The commission received 1,000 complaints since its creation in September last year, Win Mra told reporters during a fact-finding mission to Jakarta in March.

“A lot of issues have been reported such as land disputes, alleged malpractices in the health sector and complaints about government administrative officials,” he said after visiting the Indonesian Human Rights Commission office.

Similarly, the Network for Human Rights Documentation-Burma documented 415 cases of human rights violations—including 85 cases of torture, 59 cases of forced labor and 114 cases of confiscation/destruction of property—committed by the government and its supporters in the first year of Thein Sein’s government, according to a new report released this week.

So how will the EU/OHCHR initiative managed to increase the worth of the MHRC? OHCHR spokesman Xabier Celaya told The Irrawaddy on Monday that the joint initiative is still under discussion but due to be finalized shortly, although he could not put any figure on the level of funding involved.

“An implementation schedule will be mutually agreed between OHCHR and the [MHRC],” he said. “The initiative may also involve other regional partners, such as other national institutions in the region.

“The initiative will consist of a series of capacity development activities such as assisting in the preparation of legislation to put the commission on a sound legal basis so that it complies with international standards (the Paris Principles); seminars on international human rights law that should benefit the commission and also members of the judiciary, government and academia; technical assistance regarding international human rights treaty ratification; and technical assistance in follow up to the recommendations emanating from Myanmar’s Universal Periodic Review.”

Celaya added that Tomas Ojea Quintana, the UN special rapporteur for human rights in Burma, has cited several major challenges—a need for increased capacity, an independent judiciary, extensive legal reform and structural measures to improve access to information, access to justice and political will to address human rights violations.

“Clearly, the commission, like any new body, faces constraints,” said Celaya. “An independent national human rights institution should in principle have a mandate and be in the position to investigate and address alleged human rights violations wherever they occur.”

So while the UN clearly sees the need for legal reform to allow the MHRC to function properly, the question remains whether it considers this as a paramount initial step upon which the success of the entire initiative rests.

Mathieson is adamant that the MHRC must go back to the drawing board as it is currently trying to operate without any clear legal standing. “The Paris Principles are the international standard and that is what they should be aiming for,” he said. “If they are heading in that direction, if that is what they are aiming for, then they have a long way to go.

“The commission is [currently] almost at the whim of the president. You need to sort out the legislative underpinning of the commission through an act of Parliament so it does have guaranteed funding. And then you figure out what function and role it is actually going to play.”

So while a few seminars and consultations may help increase the legitimacy of the international community’s policy of reengagement, a fundamental overhaul including constitutionally enshrined independence, guaranteed funding and full transparency is necessary to prevent the MHRC remaining merely the butt of snide jibes from cynical observers.

View the original article here.