“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’.”