As of 29 November 2023, the SCA recommendations contained in this report are considered final with exception of those related to the Myanmar National Commission on Human Rights, which in accordance with Article 12.1(ii) of GANHRI statute challenged the recommendation.

3.3. Myanmar: Myanmar National Human Rights Commission (MNHRC)

Recommendation: The SCA recommends that the MNHRC’s accreditation status be removed.

In accordance with Article 18.2 of the GANHRI statute, a recommendation to remove accreditation status does not take effect for a period of one year. The SCA notes that the MNHRC maintains B status until the SCA’s second session of 2024. This allows an opportunity for the MNHRC to provide the evidence necessary to establish its partial compliance with the Paris Principles.

In accordance with Article 18.2 of the GANHRI statute, a recommendation to remove accreditation status does not take effect for a period of one year. The SCA notes that the MNHRC maintains B status until the SCA’s second session of 2024. This allows an opportunity for the MNHRC to provide the evidence necessary to establish its partial compliance with the Paris Principles.

During this period, the MNHRC is encouraged to continue to actively engage with the OHCHR, GANHRI, APF, other NHRIs, as well as relevant stakeholders at international, regional, and national levels to strengthen its institutional framework and working methods.

During its first session of 2023, the SCA decided to initiate a special review of the MNHRC in accordance with article 16.2 of the GANHRI Statute based on:

• the report of the United Nations High Commissioner for Human Rights to the Human Rights Council (A/HRC/52/21) stating that ‘the military authorities have also targeted the country’s legal and institutional systems by unilaterally adopting laws, imposing amendments to existing provisions and using laws and institutions to target opponents and suppress dissent. The judiciary of Myanmar and the National Human Rights Commission have effectively been subsumed under military control, thus eliminating any element of independence and credibility’;
• publicly available information alleging a lack of independence of the MNHRC, its inability to effectively address human rights and the latest selection and appointment process of commissioners of 2021;
• a third-party submission dated 23 February 2023 from a group of civil society organizations raising concerns about the MNHRC’s lack of independence and its inability to exercise its mandate to promote and protect human rights amid significant political change in Myanmar.

At its second session of 2023, the SCA gave the MNHRC the opportunity to provide a response in writing and through interview in relation to the following issues:

• its independence in view of report A/HRC/52/21 stating “that MNHRC has been subsumed under military control”;
• its ability to effectively address human rights issues since the military coup of 2021;
• the state of its cooperation with civil society in the promotion and protection of human rights in Myanmar as referenced in public information available from civil society organizations;
• the state of its cooperation with the international human rights system including submission of alternative reports to Treaty Bodies and interaction with the United Nations Special procedures with the view to promoting and protecting human rights in Myanmar
• the impact of the 1 February 2021 decree of the military appointing the commissioners and its compliance with the MNHRC Law and the Paris Principles; and
• additional third-party submissions dated 1 and 31 May 2023, reiterating concerns about the MNHRC’s independence and its ability to effectively address human rights violations in Myanmar.

The MNHRC reported that it continues to promote and protect human rights in Myanmar amidst restrictions imposed on its operations by the State of Emergency declared under article 420 of the Constitution of Myanmar. The MNHRC reported further that it is the only independent human rights institution in the country.

The MNHRC informed the SCA that the 2020 selection and appointment process was conducted in line with the MNHRC Enabling Law, and that the State Administrative Council decree in 2021 allowed those appointed in 2020 to continue in their roles under the state of emergency arrangements.

The SCA acknowledges the information provided by the MNHRC in writing and during the interview. However, the SCA is of the view that the information provided does not demonstrate sufficient independence and effectiveness to warrant continued accreditation under the Paris Principles. In particular, the MNHRC has not spoken out in a manner that supports the promotion and protection of all human rights and has not adequately addressed human rights violations committed by government authorities and the military. Therefore, the SCA considers that the MNHRC is operating in a manner that seriously compromises its independence and/or effectiveness as an accredited NHRI in partial compliance with the Paris Principles.

In view of the information before it, the SCA is concerned that the institution’s independence and effectiveness has not been sufficiently maintained in line with the requirements of the Paris Principles.

The SCA notes with deep concern:

1. Independence

The report A/HRC/52/21 states that the MNHRC had been ‘subsumed under military control, thus eliminating any element of independence and credibility’. Various third-party submissions before the SCA also indicate that the MNHRC remains under the control of the State Administrative Council and has been ‘condoning and abetting’ the activities of the military government. The SCA acknowledges the responses provided by the MNHRC during its interview; including that article 24 of the MNHRC Enabling Law empowers it to act independently, and that during the state of emergency the MNHRC has sent many recommendations to the government and undertaken various human rights promotion activities, including lectures. However, the SCA is not satisfied that these activities demonstrate that the MNHRC is continuing to operate independently in practice.

The SCA notes with deep concern a public statement of the MNHRC issued on 7 January 2023, describing the actions of the President of the State Administration Council in releasing and reducing the sentences of prisoners as ‘humanitarian’ and an indication of the ‘goodwill of the government’. These comments were made despite reports of torture, arbitrary detention, extrajudicial killings, targeting of civilians by the military, and mistreatment of prisoners taking place across Myanmar, according to the report A/HRC/52/21and third-party submissions received by the SCA. The SCA considers that this message of endorsement from the MNHRC, coupled with the absence of public positions on the widespread violations allegedly taking place across the country, provides evidence that the MNHRC is operating in a manner that seriously compromises its independence.

The SCA also notes reports that the MNHRC is not cooperating with civil society organizations. During its interview with the SCA, the MNHRC reported that it was engaging actively with civil society organizations prior to the COVID-19 outbreak and is willing to continue such engagement when it becomes feasible. Third-party submissions lodged with the SCA illustrate a significant lack of trust and confidence in the MNHRC among many civil society organizations working in and on Myanmar. The SCA considers the degree of civil society disengagement from the MNHRC as evidence that its independence has been compromised.

The SCA highlights that regular and constructive engagement with all relevant stakeholders is essential for NHRIs to fulfil their mandates effectively. NHRIs should develop, formalize, and maintain working relationships, as appropriate, with other domestic institutions established for the promotion and protection of human rights, including sub-national statutory human rights institutions, thematic institutions, as well as civil society and non-governmental organizations.

The SCA reiterates the fundamental requirement of the Paris Principles that an NHRI is, and is perceived to be, able to operate independent of government interference.

The SCA refers to Paris Principles A.3, B.1, C(f) and C(g) and to its General Observations 1.5 on ‘Cooperation with other human rights bodies’.

2. Addressing human rights violations

The SCA has considered reports of widespread human rights violations taking place across Myanmar since the February 2021 military coup, including in the report A/HRC/52/21and third-party submissions, and the allegations that the MNHRC has not used its mandate to respond to these violations in an independent and effective manner.

The SCA notes the response provided by the MNHRC that it continues to monitor peaceful assembly and visit places of detention, making recommendations to authorities on conditions of individual detainees, but that all those in detention have been held under the State Administration Council Amendment Law (No 21/2021) of the Counter-Terrorism Law (No 23/2014) and are outside the jurisdiction of the MNHRC. The SCA is concerned by the views expressed by the MNHRC that protesters have refused to register or obey instructions to disperse under the Amended Anti-Terrorism Law.

During its interview, the MNHRC reported that, according to the MNHRC Enabling Law, it cannot intervene in cases that are under trial or have been finally determined by any court. While the SCA notes this limitation on the MNHRC’s ability to intervene in individual cases, the SCA is of the view that this does not prevent the institution from responding to systemic violations occurring in places of detention using other aspects of its functional mandate, including through issuing reports, public statements, and making recommendations to authorities. As an institution with access to places of detention in Myanmar, the MNHRC is uniquely placed to monitor and report on systemic violations in this context.

The SCA is of the opinion that the MNHRC has not demonstrated willingness to adequately address all human rights issues including arbitrary detention, attacks on peaceful protests, prosecution of minorities, application of the death penalty, the lack of due process and fair trial, and attacks on civilians and civilian structures, among others. Further, the MNHRC has not made its positions on these issues publicly available to ensure the strengthening of the credibility and accessibility of the institution for all people in Myanmar.

An NHRI’s mandate should be interpreted in a broad and purposive manner to promote a progressive definition of human rights, which includes all rights set out in international, regional, and domestic instruments. NHRIs are expected to promote and ensure respect for all human rights, democratic principles, and the strengthening of the rule of law in all circumstances, and without exception. Where serious violations of human rights are imminent, NHRIs are expected to conduct themselves with vigilance and independence.

While the SCA notes that the MNHRC is currently operating within a challenging operational context under a state of emergency declared in accordance with article 420 of the Constitution of Myanmar, it emphasizes that in the situation of a coup d’état or a state of emergency, it is expected that an NHRI will conduct itself with a heightened level of vigilance and independence, and in strict accordance with its mandate. NHRIs are expected to promote and ensure respect for human rights, democratic principles and the strengthening of the rule of law in all circumstances and without exception. In situations of conflict or a state of emergency, this may include monitoring, documenting, issuing public statements and releasing regular and detailed reports through the media in a timely manner to address urgent human rights violations.

The SCA calls on the MNHRC to strengthen its efforts to address all human rights issues in a manner that demonstrates its ability to protect and promote human rights. The SCA further recommends that the MNHRC ensure that its positions on these issues are made publicly available, as well as effectively and independently cooperate with the international human rights system and develop, formalize, and maintain working relationships as appropriate with other domestic institutions, including civil society and non-governmental organizations.

The SCA refers to Paris Principles A.1, A.2, and A.3, and to its General Observation 1.2 ‘Human rights mandate’, 2.5 on ‘NHRIs during the situation of a coup d’état or a state of emergency, and 2.6 on ‘Limitation of power of National Human Rights Institutions due to national security’.

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