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ANNI Report 2023: On the Performance of National Human Rights Institution in Asia

November 1st, 2023  •  Author:   Asian NGO Network on National Human Rights Institutions (ANNI)  •  19 minute read
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Introduction

The raison d’etre of National Human Rights Institutions (NHRIs) is to foster the accountability of nation-states in protecting and promoting human rights. These institutions have witnessed a massive proliferation over the last three decades, and their relevance, interventions, and effectiveness have also been scrutinised by different stakeholders including civil society, academics as well as the Global Alliance of National Human Rights Institutions’ Sub-Committee on Accreditation (GANHRISCA), which is responsible for reviewing and accrediting NHRIs’ compliance with the Paris Principles. Some critics see them as “pretenders and placebos in democratic disguise”.

The Asian NGOs Network on National Human Rights Institutions (ANNI), with the FORUM-ASIA as its Secretariat, has engaged with NHRI-related advocacy through its members, consisting of civil society organisations (CSOs) and human rights defenders (HRDs) across various countries in Asia. ANNI has undertaken collaborative research on NHRIs since 2007, through the development of its flagship publication on the performance and establishment of NHRIs in Asia. In continuation of this endeavour, the ANNI Report 2023 offers an independent assessment of the work and functioning of NHRIs with respect to the protection and promotion of human rights in Asia. This is the first edition of the report that will be focusing on a quantitative assessment of NHRIs’ performance, alongside a qualitative one, from a civil society perspective, for a reporting period of two years, i.e. January 2021 to December 2022.

During this period, the NHRIs in the region had to navigate an increasingly repressive landscape, which created both operational and practical obstacles in them effectively fulfilling their mandate and their role. In some countries, NHRIs struggled with securing basic safeguards to function independently and in others, despite having those mandates, NHRIs failed to carry them out independently. While in some countries, governments’ attempts to limit NHRIs’ work and functioning continued by way of reduced budgets or interference, there was also a recurring trend of a lack of a transparent, merit-based process in the selection and appointment of NHRIs’ commissioners. In some other countries, political turmoil rendered some NHRIs either dissolved or subsumed under authoritarian regimes, even using them as a way to advance their agenda and validate their legitimacy. At the same time, there has also been some movement on establishing a new NHRI in
some countries since 2020, extending into the period covered in this report.

From the NHRIs covered in this report, and as of April this year, seven retain their ‘A’ status accreditation by the GANHRI-SCA, implying full compliance with the Paris Principles (though one from these is likely to be downgraded by October 2023 and the accreditation for another has been deferred to March 2024); three retain a ‘B’ status or partial compliance with the Paris Principles (with one from these to undergo a special review by the GANHRI-SCA, in its October 2023 session);4 two are yet to be accredited though they are functional NHRIs; and one is yet to be established. While the reasons for receiving a ‘B’ status, or a potential downgrade to one, remain context-specific (in some cases, constitutional amendments impacting the NHRI’s independence, while in others, the NHRI not adequately fulfilling its mandate) the question of the NHRIs’ ability to effectively and independently fulfil their mandates remains central to their status as credible institutions capable of upholding human rights.

Till such a time when there is more autonomy and independence for the NHRIs to operate, governments may continue to regulate and control their appointments and funding, and to disregard NHRIs’ recommendations for bettering their human rights record. In this context, some fundamental challenges remain before the NHRIs in the Asian region, and there is a strong need for credible, effective, independent, and Paris Principles-compliant institutions to uphold human rights for all in Asia. At a time when authoritarian regimes or governments are further repressing fundamental freedoms, the NHRIs’ roles in safeguarding human rights become critical. The leadership of the NHRIs can become a central factor in holding governments accountable for their human rights records; preventing further shrinking of civic space; protecting HRDs, and ensuring an enabling and safe environment for them to operate in, without further reprisals for their work.

Defining Moments of Human Rights in Asia (2021-2022)

In early 2021, the military in Myanmar launched a coup deposing the country’s elected government and proclaimed a year-long state of emergency. Following the coup, the military has committed massive human rights violations with killings, torture, illegal detentions, and enforced disappearances. The United Nations Human Rights Office of the High Commissioner (OHCHR) has documented at least 2,940 killings and 17,552 arrests by the military and its ‘affiliated armed actors’ between 1 February 2021 to 31 January 2023.

The ANNI Report 2023

There are two country chapters in which the authors did not carry out the scoring process. One is Myanmar, where the civil society does not recognise the Myanmar National Human Rights Commission (MNHRC) as it was appointed by the junta after the military’s attempted coup on 1 February 2021. The second is Cambodia, featuring as the only country chapter where an NHRI is not yet established. The country chapter from Myanmar demonstrates how the existing MNHRC has acted as a smokescreen for the illegal military junta. It has in fact been complicit in the junta’s mass atrocity crimes by its failure to address the magnifying human rights crisis in Myanmar and by turning a blind eye to the violence that has been unleashed on the people pushing for a return to democracy in the country. The chapter further underscores the need to establish a new, legitimate NHRI that is Paris Principles-compliant and can truly represent the will of the people and delineates the steps the civil society and other stakeholders have taken in this regard.

The Myanmar National Human Rights Commission – A Lesson in Failure

Compiled by Progressive Voice on behalf of the CSO Working Group on Independent National Human Rights Institution (Burma/Myanmar)

Introduction

The Myanmar National Human Rights Commission (MNHRC) was formed in 2011 and mandated by its enabling law, the Myanmar National Human Rights Commission Law, in 2014. It was graded as a status ‘B’ national human rights institution (NHRI) in November 2015 by the Global Alliance of National Human Rights Institutions’ Sub-Committee on Accreditation (GANHRI-SCA). This status indicates the MNHRC’s failure to fully comply with the Paris Principles. The GANHRI-SCA listed seven problematic aspects of the Commission because of which it got this grading: a) selection and appointment; b) performance in situations of civil unrest or armed conflict; c) pluralism; d) adequate funding and financial independence; e) monitoring places of deprivation of liberty; f) interaction with the international human rights system; and g) annual report.

Since the 2015 accreditation process there have been several emblematic cases that demonstrate the MNHRC’s lack of independence, effectiveness, and pluralism.

One example is the 2016 Ava Tailoring case, in which a prominent tailoring family business in downtown Yangon was found to have abused and tortured two teenage maids and forced them to work with little or no pay. After the case came to light and was reported to the MNHRC, rather than pursuing legal action or setting accountability, the MNHRC pressured the families of the two victims to accept money from the tailoring family.

Moreover, in conflict-affected parts of Myanmar, the MNHRC has proven to be particularly ineffective. This can be seen in its consistent adherence to the military’s narrative during the investigations into civilian deaths in Kachin State in 2018 and Rakhine State in 2019, as well as its complete silence over the Rohingya genocide in 2017. It is also important to note that, between 2016 and 2018, there were no women commissioners in the MNHRC.

The MNHRC has utterly failed to address the magnifying human rights crisis in Myanmar after the military’s attempted coup on 1 February 2021. The military junta has torn up the previous tenuous
agreement between the civilian government of the National League for Democracy and the Myanmar military by attempting to subvert the democratic will of the people of Myanmar, as expressed in the 2020 national elections.

The junta has been waging an all-out assault against the people of Myanmar, and the country is now in a state of fullblown nationwide war. The illegal junta has also enacted or amended several
laws that further suppress and violate the fundamental human rights of the people of Myanmar.

This includes legalising military interception of electronic communications, expanding Section 505(A) of the Penal Code to criminalise the expression of dissent such as protesting, and amending the Electronic Transactions Law to criminalise online criticism of the military junta.

The military junta faces fierce resistance, both civil and armed, from the nationwide Civil Disobedience Movement, the emergence of People’s Defence Forces, and the long-standing Ethnic Resistance Organisations. Long-established ethnic governance entities and structures, service providers, and newly established people’s administration bodies govern significant parts of the country. The National Unity Government (NUG) is the government formed of elected Members of Parliament from the 2020 elections and ethnic and civil society leaders. The NUG is the overarching government that the people of Myanmar view as their legitimate governing institution.

The military junta has responded to the resistance with disproportionate levels of violence, including targeted killings of civilians, massacres, airstrikes, arbitrary arrests, extra-judicial killings, sexual and gender-based violence, and relentless persecution of political figures and human rights defenders. As of 22 September 2023, the junta has killed over 4,100 people (including 457 children); arbitrarily arrested nearly 25,000 civilians (about 20,000 of whom remain in detention), and sentenced around 150 dissenters to death.8 The junta continues to commit war crimes against civilians (including children) and crimes against humanity at will, often targeting places of worship, schools, and hospitals.

One of the worst massacres occurred in April 2023, where an aerial bombing, followed by helicopter attacks, killed at least 170 people in Pa Zi Gyi Village in Sagaing Region as they gathered to celebrate the opening of a new administration department. The Special Rapporteur on the situation of human rights in Myanmar, Tom Andrews, repeated his determination to the UN Human Rights Council in June 2022 that the junta’s daily attacks amount to war crimes and crimes against humanity.

MNHRC’s Failure to Exercise Its Mandate to Promote and Protect Human Rights

The CSO Working Group on Independent National Human Rights Commission (Burma/Myanmar) (Working Group), previously known as the CSO Working Group on MNHRC Reform, published an
analysis paper on the MNHRC’s complicity in the junta’s grave human rights violations and atrocity crimes between the attempted coup of February 2021 and the end of 2022. Most of the information in this chapter draws from the analysis paper. It demonstrates how, amid the ongoing violations of human rights since the illegal coup attempt, the MNHRC has aligned and cooperated with the military junta, even joining part of its propaganda offensive. It must be noted here that according to the General Observations of the GANHRI-SCA, the MNHRC is required to conduct itself with “a heightened level of vigilance and independence.”

Lack of Independence in Practice:

As per the Paris Principles, NHRIs must “promote and protect human rights”. GANHRI notes that “the accreditation process assesses an NHRI’s compliance with the Paris Principles in law and practice”. Since the coup attempt, the MNHRC has taken no steps to address or prevent the litany of human rights violations committed by the military junta. On the contrary, it has either stayed completely silent on some of the most pressing human rights issues or has actively praised the military junta by describing it as “humanitarian” or “forward-looking”. In a statement of support in April 2022 for the military’s so-called “Year of Peace”, the MNHRC praised the junta leader, Min Aung Hlaing, and his superficial offering of peace talks. In this statement, the MNHRC expressed that:

The initiative of the Chairman of the State Administration Council Prime Minister Commander in Chief of Defence Services to engage in peace talks with ethnic armed organizations in person, therefore, is a gigantic and forward-looking step in the right direction and the rarest chance of its kind to be seized by all peace-loving people.

Yet there has not been an MNHRC statement condemning the almost daily airstrikes launched by the military junta and the blocking and weaponisation of humanitarian aid, nor on the repeated massacres of civilians as a form of collective punishment to demoralise the resistance movement.

The MNHRC has also consistently praised prisoner releases. For example, in its November 2022 statement, it described the “humanitarian actions” of Min Aung Hlaing, even though he is the leader
of the Myanmar military that stands accused of genocide against the Rohingya in 2017 and crimes against humanity against other ethnic minorities. He has been presiding over the atrocities that are being committed by the junta since the coup attempt. In another instance in July 2021, on the release of human rights and democracy activists charged under Section 505(A) of the Penal Code, the MNHRC stated that it was “heartened” and believed that their release will also “hearten.international and regional human rights organizations”. The statement also expressed that it is a “a very significant measure from the humanitarian and human rights perspective” and “welcomes the fact that the released journalists are urged in the Myanmar Press Council Announcement 6/2021 to
uphold the media ethics and standards required for the development of the Fourth Pillar”. The statement did not address the fact that the military junta arbitrarily arrested these people in violation of their fundamental freedom. The statement also ignored the fact that prisoners face routine torture, sexual and gender-based violence, executions, extrajudicial killings, deprivation of food and water, and are forced to live in cramped and unsanitary conditions.

Monitoring Places of Deprivation of Liberty:

Following the attempted coup, the MNHRC conducted prison inspections after which it made unfounded claims about prisons complying with human rights obligations. This is despite overwhelming evidence of torture, ill-treatment, and murder of prisoners, which has widely been reported by news media and civil society. Consequently, the military used these statements for their propaganda in their media mouthpiece, highlighting the “successful” prison inspections by the MNHRC.

However, testimony from a former prisoner who was released on 3 May 2023 to one of this chapter’s authoring organisations sheds light on the actual prison inspections. Before the MNHRC visits, prison authorities warned prisoners not to speak badly of their treatment and conditions and were threatened with transfer if they did speak out. Then, during visits, MNHRC commissioners simply urged prisoners to pray, rather than the commissioners conducting more comprehensive inspections, or reflecting on the reality of the often violent and inadequate conditions, as well as the discrimination faced by Christian and Muslim prisoners.

The MNHRC has, in effect, endorsed the military junta’s (and in some cases, military troops’) prison administration and condoned its human rights violations through its ineffectual prison monitoring. Through the MNHRC, the junta attempts to conceal its crimes by having a so-called human rights institution inspect and report on prisons, so as to fend off probes and criticism from the international community.

Composition and Pluralism:

Another aspect of the MNHRC that is clearly in breach of the Paris Principles is related to the identity of commissioners. Two of the present commissioners are former military personnel. Commissioner Tin Aung is a former Brigadier General, who served in the Myanmar military until 2019, before his appointment to the Commission in January 2020. He was a high ranking military officer when the UN-mandated Independent International Fact-Finding Mission on Myanmar’s investigation recommended that the Myanmar military be investigated for genocide for atrocities committed during its “clearance operation” against the Rohingya in 2017. Paw Lwin Sein, who is the current Chair, is also a former military personnel and served as a junior officer to the Military of Defence, albeit between 1978 and 1980. It is telling that the profiles of the commissioners have been taken down from the MNHRC’s website and accessing their information necessitates an online tool. None of the other commissioners have strong ties or experience within Myanmar civil society, nor were they selected as a result of transparency, inclusive dialogue, or consultation with civil society and the Myanmar public. This was pointed out by civil society in the previous selection process, as well as by the GANHRISCA in its previous accreditation process of Myanmar in 2015. The commissioners’ background and opaque selection process have become even more problematic in light of the coup attempt.

Even though the MNHRC’s selection and appointment process is enshrined in its enabling law, the Commission was once described as a “club for former civil servants”.

The current iteration of commissioners was selected before the coup attempt and the lack of pluralism makes the MNHRC unsuited to the promotion and protection of human rights in today’s emergency situation. The Commission’s activities are no longer publicised as much; something that used to be prominently done on social media. This information has now become less transparent and publicly accessible. Since the coup attempt, the MNHRC has not been very active on social media and only updates its activities through its website or the military-controlled newspaper, the Global New Light of Myanmar.

Furthermore, at the time of this report, the MNHRC listed the Myanmar National Portal (the junta’s propaganda website, which frequently depicts the NUG and peaceful protesters as terrorists28)
as a partner, alongside the UN Office of the High Commissioner for Human Rights (OHCHR), GANHRI, Asia Pacific Forum (APF), and Southeast Asia National Human Rights Institutions Forum (SEANF).

Way Forward: A New National Human Rights Institution for Myanmar

As the GANHRI-SCA noted in 2015, the enabling law around selection, appointment, and independence should empower the MNHRC to effectively promote and protect human rights. However, in reality, it has enabled the MNHRC to become a tool of the junta to obfuscate its serious atrocities and grave human rights violations. This was iterated in the UN High Commissioner for Human Rights’ March 2023 report, which stated: “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”.

Despite the fact that the MNHRC has never been independent nor impartial, and continues to be complicit in the junta’s atrocities, it has managed to secure platforms at regional and international forums to peddle the military junta’s propaganda and falsely claimed legitimacy.

The Working Group has been urging international and regional NHRI bodies to stop their engagement with the MNHRC and to suspend, remove, or expel it from GANHRI, APF, and SEANF. Allowing the junta controlled MNHRC to attend regional and international human rights forums (or even extending invitations to such a body) is antithetical to the promotion and protection of human rights.

After two years of repeated calls by the Working Group and the Asian NGO Network on National Human Rights Institutions (ANNI), the GANHRISCA made the decision in its March 2023 session to
initiate a special review of the MNHRC in its following accreditation session in October 2023. The Working Group and ANNI welcomed this delayed but important step. The Working Group and ANNI further conveyed civil society concerns regarding MNHRC’s continuing membership to APF, GANHRI, and to various UN Offices and Missions in Geneva. On 31 May 2023, the Working Group and ANNI made a joint civil society submission to the GANHRI-SCA, ahead of its special review of the MNHRC, with the recommendation to remove the Commission from the world’s leading human rights networks.

Moreover, Myanmar’s civil society and human rights defenders have been proactively working to establish a new NHRI. Soon after the attempted coup, the Working Group called for the MNHRC to denounce the military junta’s coup attempt and stand with the people of Myanmar. In its current state of complete subsumption under the illegal military junta, the MNHRC should not be recognised as legitimate. The Working Group expressed this through a joint statement on 7 August 2022, calling for the MNHRC to be dissolved and for the NUG to establish a new Union Human Rights Commission. On 6 December 2021, the Working Group had already proposed a Union Human Rights Commission Bill to the National Unity Consultative Council (NUCC), the Committee Representing Pyidaungsu Hluttaw (CRPH), and the NUG.38 It is imperative that these bodies adopt the bill and form a new independent human rights commission to replace the junta-controlled, ineffective MNHRC. Together with ANNI, the Working Group will continue to engage with the NUCC, the CRPH, and the NUG to achieve this goal.

International, regional, and sub-regional networks of NHRIs (including APF, GANHRI, and SEANF) must therefore take a principled stand and implement concrete steps to support and recognise the efforts of civil society organisations to establish a new independent NHRI that respects and upholds the principles of protecting human rights in line with the Paris Principles and will serve to protect the rights of the people of Myanmar.

Recommendations

To International and Regional NHRI Bodies (GANHRI, APF, and SEANF):

  • Support the people of Myanmar as they work towards a genuine federal democracy;
  • Take the principled stance of disengaging with the MNHRC to avoid legitimising the military junta and its grave violations of human rights and international crimes;
  • Suspend or expel the MNHRC from their membership;
  • Support Myanmar civil society organisations in their efforts to establish a new independent national human rights commission; and
  • Start dialogues with and support the NUG to establish a new human rights commission.

To International Donors:

  • Cease funding directly to the MNHRC and its projects and activities, and direct and indirect funding through the MNHRC’s partners;
  • Urge GANHRI, SEANF, and APF to suspend or expel the MNHRC from their membership; and
  • Support the NUG and civil society to establish a new national human rights commission.

To the UN and Other International Actors:

  • Cease engagement or continue to disengage with the MNHRC and urge other actors to follow suit;
  • Cease funding to the MNHRC and its projects or activities;
  • Support the NUG and civil society to establish a new independent human rights commission; and
  • Support the Myanmar people’s struggle for a genuine federal democracy by not lending legitimacy to the military junta, its proxies, or those that tacitly endorse the junta, including the MNHRC.

To the NUG, CRPH and NUCC:

  • Abolish the 2014 MNHRC Law and adopt the new UHRC Law that the Myanmar civil society organisations have drafted to establish a new, independent national human rights commission; and
  • Seek support from the UN and other international and regional bodies, including GANHRI and donor governments, to establish the new commission in collaboration with civil society.

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