Posted in Legislative Research on Jun 05, 2018
Myanmar National Human Rights Commission comprising 15 members was established in September 2011, by U Thein Sein administration in order to address concerns related to human rights and disputes over fundamental rights of the citizens. In March 2014, the commission was reformed with 11 members following the enactment of the Myanmar National Human Rights Commission Law. The commission submitted three annual reports to the parliament so far. The commission was among government agencies with which U Win Myint met just days after replacing U Htin Kyaw as the President. He later on installed three more commissioners into the institution.
The objectives of the Myanmar National Human Rights Commission Law says the commission is established to safeguard the fundamental rights of citizens and to create a society where human rights are respected and protected. We will try to explain the underlying legal framework under which the commission is operating, helping citizens reflect their views on it to make it more effective and independent institution. Formation of Myanmar National Human Rights Commission
Before the establishment of the Myanmar National Human Rights Commission, the President shall form first a selection board comprising one representative each nominated by the Chief Justice of the Union, the Union Minister for Home Affairs, the Union Minister for Social Welfare, Relief and Resettlement, the Attorney-General of the Union, a representative from the Bar Council, two representatives from the parliament, a representative from Myanmar Women’s Affairs Federation and two representatives from “officially-registered” non-governmental organizations. The selection board shall adopt procedures for nominations of the members of the commission and submit the list of the names of 30 nominees to the President. The President, in coordination with two house speakers, handpicked the commission of seven to 15 members from the list. On the date of appointment, commission members shall be retired from the government service organizations if they are civil servants or from any office or employment in local and foreign organizations. The term of the member of the commission shall be five years. The commission members shall not serve more than two consecutive terms. The commission chairman shall have the same rank as a Union minister and the vice-chairman and members shall have the same rank as a deputy minister.
Despite existence of the selection board from different branches of the government and non-government organizations, it is the President, yet in coordination with two house speakers, that handpicks the commission, making it rather an executive body than an independent institution. The commission nominations are not required to get the legislative approval as well. So, there is a big question mark on the commission’s political independence.
The role of non-government organizations in the selection board is also limited to “registered” ones while the registration is legally voluntary. It requires more meaningful participation of different branches of the government and civil society in nomination process and legislative approval to make it an independent institution.
The government shall provide the commission with adequate funds to enable it to effectively perform its duties and responsibilities, according to the law. The commission can also accept contributions from any person or organization if these contributions do not undermine its independence. The commission, as an independent body, should seek approval of its own budget themselves from the parliament, not through the government. Exemptions
Documents and data submitted to the commission or commission office or materials collected by the commission shall be exempted from censorship and interference. The commission’s premises, archives, files, documents, communications, devices and equipment, funds and assets wherever located and by whomever held shall be exempted from trespassing, searching, seizing, confiscation, requisition or other means of interference. The commission has the right to disclose such information which in its opinion might be disclosed in order to continue its ongoing investigations smoothly and conveniently. The commission shall abstain from using information it has obtained for other purposes other than realization of its objectives.
Accountability and transparency
If the commission chairman wishes to resign during his term of office, the chairman shall submit a letter of resignation to the President. For resignation of any member, a letter of resignation shall be submitted to the President via the commission chairman. For dismissal of any member of the commission, the President may terminate the term of office of any member in coordination with the two house speakers.
The commission compiles reports on its activities and issue the reports as necessary, the law says. The commission’s annual report on its activities and human rights situations in the country is submitted to the president and the parliament. If necessary, special reports on human rights issues is submitted to the president. When a member of the commission becomes aware of his or her actions in conflict with the interest of the commission, the member shall promptly inform the chairman and other members to take corrective measures immediately. The commission can also make public releases on its findings and recommendations which is also submitted to the president.
Any person may file a complaint about any alleged violation of human rights with the commission on his or her own behalf, on behalf of another person or on behalf of a group of persons in writing. The commission shall conduct enquiries into the complaints except the complaint which is believed to have not been made in good faith and the complaint which is not within the competence of the commission. Moreover, the commission shall not enquire the complaint about a case under trial before any court, appeal case or cases which are being revised and which were given final verdicts. It distances the commission from any formal judicial procedures.
The commission shall send its findings on the complaint together with its recommendations to the government departments and organizations or related organizations. The departments and organizations shall reply to the commission with measures taken in accord with the commission’s recommendations within 30 days. The department has to inform the commission of its measures to prevent reprisal.
The commission is not allowed to launch enquiries into matters that do not fall within its competence and cases which are under trial before any court, appeal case or cases which are being revised and which were given final verdicts. It is assumed that the clause is inserted to prevent the commission jeopardizing the judicial independence. But it is questionable whether one branch of the government alone could remedy human rights violations.
As the responsibility of the commission is to protect the fundamental rights of citizens, it should seek a role in the process. The right to issue writs, which is the final stage of the judicial proceeding, is suspended in time of war, in time of foreign invasion and in time of insurrection. Most human rights violations have been witnessed in time of war, highlighting the fact that one branch is not adequate to address the human rights issues.
Moreover, the commission should be able to investigate into violations of human rights leading to a serious situation and widespread human rights violations. Matters related to the commission’s enquiry into human rights abuses and handling of complaints and its powers to do so should be revised so as to keep a balance between judicial independence and meaningful engagement of the commission in human rights cases.
According to the provision of the law, relevant departments and organizations shall reply to the commission with actions taken in accord with recommendations sent by the commission within 30 days. Only 5.5% of the commission’s recommendations received feedback from the government agencies within that timeframe in 2016 while nearly half of these recommendations are ignored by the agencies each year. It is found that the commission received low level of cooperation from government agencies. It is imperative that there should be a very high level of collaboration to addres abuses of human rights.
The commission shall submit its findings and annual reports to the president and the parliament. The commission should also release its findings and reports to the public concurrently to command greater accountability and transparency.
Towards a society where human rights are respected
Myanmar National Human Rights Commission is of vital importance in fully realizing the rights of citizens and paving the way for emergence of a society where human dignity is fully guaranteed. It is required to amend the Myanmar National Human Rights Commission Law for ensuring complete and effective implementation of its functions. Specific areas in the law that need to be amended and revised are matters related to formation of the commission, financial matters and roles and responsibilities of the commission. Besides, the commission’s activities should be published on a wider scale. Only when there is full public access to information about its activities, will there be more participation of citizens in making a great effort to emergence of human society in which human rights are respected and valued.