“The SCA at its second session of 2023 noted the MNHRC lack of independence by highlighting the following:

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 [e]nabling [l]aw 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.

In its response to the SCA concerns, the MNHRC indicated that its independence is demonstrated through the conduct of human rights lectures, development of its strategic and operational plan without interference, the adequacy of its financial resources, which is controlled independently, as well as the diversity in its leadership. The MNHRC highlighted the recent appointment of three members from religious minorities as proof of its diverse leadership. However, the SCA considers that there is no clear information demonstrating the MNHRC’s independence, nor is there sufficient evidence proving that the recent appointments were conducted in a clear, transparent and participatory manner to ensure the independence of, and public confidence in, the senior leadership.

The SCA notes the most recent public reports by the United Nations High Commissioner for Human Rights on the Situation of human rights in Myanmar (A/HRC/57/56) and from Special Rapporteur on the Situation of human rights in Myanmar (A/HRC/56/CRP.8), which among other things describes the human rights situation as grave and pervasive with ‘fear of arrest, torture, and death permeating Myanmar’s society’ and that ‘anyone can be at risk of arbitrary arrest by the military without any legal protection’. The MNHRC response questions the accuracy and thoroughness of these reports. In this context, the SCA considers that the MNHRC has not spoken out publicly in a manner that adequately addresses human rights violations in Myanmar. The SCA takes note of the MNHRC response that it continues to promote human rights while maintaining space for dialogue. The MNHRC further reported that its actions are also in consideration that the State Administration Council now exercises the executive, legislative and judicial powers of government, which may restrict the enjoyment of human rights.

The SCA notes 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 therefore recommends that the MNHRC takes action to demonstrate its perceived and actual independence from the government while executing its mandate to promote and protect all human rights in a public manner including freely addressing public opinion, raising public awareness on human rights issues, analysing the human rights situation in the country, obtaining statements or documents in order to assess situations raising human rights issues, as well as conducting unannounced and free access to inspect and examine any public premises,.

The SCA refers to the Paris Principles A.3, B.1, C(f) and C(g) and its General Observations, particularly 1.2 on Human Rights Mandate, 1.6 on Recommendations by NHRIs, 1.8 on Selection and appointment of the decision-making body of NHRIs.”