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Burma

Executive Summary

Burma has a quasi-parliamentary system of government in which the national parliament selects the president, and constitutional provisions grant one-quarter of national, regional, and state parliamentary seats to active duty military appointees; all other seats are open to elections. The military also has the authority to appoint the ministers of defense, home affairs, and border affairs and assume power indefinitely over all branches of the government should the president declare a national state of emergency. In November 2015 the country held nationwide parliamentary elections that the public widely accepted as a credible reflection of the will of the people. The then opposition party, the National League for Democracy (NLD), chaired by Aung San Suu Kyi, won 390 of 491 contested seats in the bicameral parliament. Parliament elected NLD member U Htin Kyaw as president in March and created the position of State Counsellor for Aung San Suu Kyi in April, cementing her position as the country’s de facto leader.

Civilian authorities did not maintain effective control over the security forces.

In March the NLD government began its five-year governing term and, beginning in April, released hundreds of political prisoners. During the year civil society noted a sharp and significant, but by no means complete, improvement in their rights to freedom of speech and assembly.

The three leading human rights problems in the country were human rights violations in ethnic minority areas affected by conflict, restrictions on freedoms of speech, and abuses against and restrictions on members of the Rohingya population. Authorities failed to protect civilians in conflict zones from killing, gross abuses, and displacement, but took some preliminary steps to address reports of abuses. While authorities returned approximately 20,000 Rohingya and other Muslim households displaced in 2012 communal violence to their locations of origin inside Rakhine State, more than 120,000 remained displaced in camps. An additional estimated 30,000 civilians were displaced due to the government’s security operations beginning in October in response to attacks by militants on Border Guard Police posts in Maungdaw, northern Rakhine State.

Other significant human rights problems persisted, including rape and sexual violence; forced labor; politically motivated arrests; widespread corruption; land-related conflict; restrictions on freedom of speech, assembly, and association; and intimidation and occasional arrests of journalists. Conditions in prisons and labor camps also remained harsh. Trafficking in persons, including forced labor of adults and children, continued.

While the government took some limited actions to prosecute or punish officials responsible for abuses, many such actions by government actors and security officials continued with impunity.

Some ethnic armed groups committed human rights abuses, including forced labor of adults and children and recruitment of child soldiers, and failed to protect civilians in conflict zones.

Section 1. Respect for the Integrity of the Person, Including Freedom from:

e. Denial of Fair Public Trial

The law calls for an independent judiciary, although institutional corruption sometimes characterized the judicial system and appeared at times under the de facto control of the military and government. According to studies by civil society organizations, all level of officials received payments at all stages in the legal process for purposes ranging from routine matters, such as access to a detainee in police custody to fixing the outcome of a case. As in the previous year, the government did not take legal action against judges for corruption.

The government repealed or amended many of the laws used historically to deny individuals a fair public trial. The government repealed the Emergency Provisions Act in October. Also in October the government amended the Peaceful Assembly and Processions Act. Other laws remained on the books, including the Habitual Offenders Act, the Electronic Transactions Law, the Television and Video Act, the Law on Safeguarding the State from the Danger of Subversive Elements, and section 505(b) of the penal code, used to censor or prosecute public dissent. Provisions in the laws that allow the government to manipulate the courts for political ends remained in place, but the government used them less frequently than in previous years. It continued occasionally to use some of these laws to criminalize peaceful dissent and deprive citizens of due process and the right to a fair trial.

On January 22, the government sentenced Kachin activist Patrick Kum Jaa Lee to six months in prison for sharing a photograph on Facebook that the military deemed was defamatory. Authorities arrested Patrick in October 2015 and charged him under the 2013 Telecommunications Law. The government released him on April 1 after he finished serving his sentence in Insein Prison.

The government released Naw Ohn Hla and five other activists in April after they finished serving their sentence for protesting a land dispute in front of the Chinese embassy in Rangoon.

TRIAL PROCEDURES

The law provides for the right to a fair public trial, but it also grants broad exceptions, in effect allowing the government to violate these rights at will. In ordinary criminal cases, the court generally respected some basic due process rights such as the right to an independent judiciary, public access to the courts, and the right to a defense and an appeal. Defendants do not enjoy the rights to presumption of innocence; to be informed promptly and in detail of the charges against them; to be present at their trial; to free interpretation; or, except in capital cases, to consult an attorney of their choice or have one provided at government expense. There is no right to adequate time and facilities to prepare a defense, but defense attorneys in criminal cases generally had 15 days to prepare for trial. Defendants have the right to appeal judgments, but in most appellate hearings, the original verdicts were upheld. No legal provision allows for the compelled testimony or confessions of guilt by defendants to be used in court; nonetheless, authorities reportedly engaged in both. According to local human rights lawyers, judicial violations of many of these rights and standard trial procedures declined under the new government.

Ordinary criminal cases were open to the public. While there is no right to confront witnesses and present evidence, defense attorneys could sometimes call witnesses, conduct cross-examination, and examine evidence. Defendants did not have the right to access government-held evidence, but sometimes they received access. Prodemocracy activists generally appeared able to retain counsel, but defendants’ access to counsel was often inadequate. There were reports of the authorities not informing family members of the arrests of persons in a timely manner, not telling them of their whereabouts, and often denying them the right to see prisoners in a timely manner.

Concerns regarding judicial impartiality remained, and under the new government, NGOs and lawyers reported that interference in criminal trials to dictate verdicts became less common.

The government retained the ability to extend prison sentences under the law. The minister of home affairs has the authority to extend a prison sentence unilaterally by two months on six separate occasions, for a total extension of up to one year.

POLITICAL PRISONERS AND DETAINEES

The government released hundreds of political prisoners during the year. As of October only a small number of political prisoners remained in prison throughout the country, none convicted since the new government came to power. Two separate protests related to labor and land disputes in May led to more than 150 of the arrested political detainees during the year (see section 7). The government released most after a few days without conviction, while 15 individuals remained in detention awaiting trial as of December. As of December, 66 political detainees were facing trial on various charges. This number did not include detainees in Rakhine State, estimated to be in the hundreds.

Many released political prisoners experienced significant restrictions following their release, including an inability to resume studies undertaken prior to incarceration, secure travel documents, or obtain other documents related to identity or ownership of land. Under the code of criminal procedure, released political prisoners faced the prospect of serving the remainder of their sentences if rearrested for any reason.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

No specific mechanisms or laws provide for civil remedies for human rights violations; however, complainants may use provisions of the penal code and laws of civil procedure to seek civil remedies. Individuals and organizations may not appeal an adverse decision to regional human rights bodies.

PROPERTY RESTITUTION

Under the constitution the state is the owner of all land; however, the 2012 Farmland Law allows for registration and sales of private ownership rights in land.

In January the new government formally endorsed a new land use policy following public consultations dating to 2014. The new policy emphasizes the recognition, protection, and registration of legitimate land tenure rights of smallholders, communities, ethnic nationalities, women, and other vulnerable groups. It also includes the recognition, protection, and ultimate registration of customary tenure rights, which were not formerly legally recognized. The law allows the government to declare land unused and assign it to foreign investors or designate it for other uses. There is no provision for judicial review of land ownership or confiscation decisions under either law; administrative bodies subject to political control by the national government make final decisions on land use and registration. Civil society groups raised concerns that the laws do not recognize rights in traditional collective land ownership and shifting cultivation regimes, which are particularly prevalent in upland areas inhabited by ethnic minority groups. Acquisition of privately owned land by the government remained governed by the 1894 Land Acquisition Act, which provides for compensation when the government acquires land for a public purpose. Civil society groups criticized the lack of safeguards in the law to provide payment of fair market compensation.

Researchers had concerns that land laws, including the Farmland Law and the Vacant, Fallow, and Virgin Land Law, facilitate land confiscation without providing adequate procedural protections. Parallel legal frameworks and traditional forms of land tenure in areas controlled by ethnic groups in Kachin, Mon, Karen, and Shan States may not have formal legal recognition under the land laws.

Parliament’s Land Acquisition Investigation Commission did not have legal authority to implement and enforce its 2013 report recommendations to return thousands of acres of confiscated but unused land or provide compensation to farmers from whom the government took the land, and media sources reported little progress in returning the confiscated lands. The Vacant, Fallow, and Virgin Land Law requires that land be returned if not used productively within four years, but civil society groups reported that land taken by the military was left unused for long periods.

Early in the year, the government disbanded the Land Use Management Central Committee created in 2014 by then president Thein Sein and replaced it with the Land Acquisition Reinspection Central Committee, with subcommittees at the state and regional, district, township, and village tract levels to continue addressing land grabbing.

There were no specific reports of returns of confiscated land throughout the year.

Under the former military regime, various government agencies–including the Myanmar Oil and Gas Enterprise, the Myanmar Ports Authority, and the army–frequently confiscated land from farmers and rural communities, generally without due process or adequate compensation. Following the attacks in October in northern Rakhine State, hundreds of homes were burned, with some reports alleging the government was the perpetrator and others alleging local Rohingya groups were to blame. The government established an investigation commission in November to acquire facts about such claims. The government did not announce plans for assistance to affected communities.

On December 22, the government sentenced 72 Shan State farmers to one month in prison for “trespassing” on land that traditionally, under customary law, belonged to those farmers. The Tatmadaw Eastern Command, which also claimed the land, pressed charges against the farmers after they rejected a compromise by which the military would formally own the land but the farmers could use it with their permission.

Section 2. Respect for Civil Liberties, Including:

b. Freedom of Peaceful Assembly and Association

FREEDOM OF ASSEMBLY

The constitution provides the right to freedom of assembly, and the government took steps to ease restrictions on these rights. On October 4, the government passed an amendment to the Peaceful Assembly and Peaceful Processions Law. The new law requires 48-hour notice to local police for any peaceful assembly or procession, removing the requirement for permission. The law also reduces the maximum penalty for conducting a peaceful assembly or procession without notice from six months to three months in prison. For second violations of the law, the maximum penalty increases to one year. Under the previous law, six-month sentences could be, and often were, stacked consecutively for every township the procession passed through, resulting in multi-year sentences; the new law allows sentencing only for the township where the assembly begins.

Citizens and international civil society groups criticized provisions of the new peaceful assembly and processions law that make it a criminal offense to give speeches that “contain false information,” say anything that can harm the state, or “do anything that causes fear, a disturbance, or blocks roads, vehicles, or the public.”

As part of the April 8 amnesty, the government released all prisoners involved in the March 2015 Letbadan protests. The government also released student union leaders Kyaw Ko Ko and Lin Htet Naing, whom they had arrested in October and November 2015.

Farmers and social activists continued to hold protests over land rights and older cases of land confiscation throughout the country, and human rights groups continued to report some cases in which the government arrested groups of farmers and those supporting them for demanding the return of confiscated land. Many reported cases involved land taken by the army under the former military regime and given to private companies or individuals with ties to the military. Common charges used to convict the peaceful protesters included criminal trespass, violation of the Peaceful Assembly and Processions Act, and violation of section 505(b) of the penal code, which criminalizes actions that the government deemed likely to cause “an offence against the State or against the public tranquility.” The Assistance Association for Political Prisoners (Burma) reported more than 100 arrests and indictments during the year, with approximately 116 individuals, including farmers and laborers, known to be facing trial.

FREEDOM OF ASSOCIATION

While the constitution and laws allow citizens to form associations and organizations, the government sometimes restricted this right. The former government reportedly blocked efforts of ethnic language and literature associations to meet and teach, and it impeded efforts of Islamic and Christian associations and other organizations to gather and preach. The new government did not address these restrictions as of November.

In 2014 the government adopted the Law Relating to Registration of Organizations, which effectively voided State Law and Order Restoration Council Law 6/1988. The 2014 registration law stipulates voluntary registration for local NGOs and removes punishments for noncompliance for both local and international NGOs.

Activists reported that civil society groups, community-based organizations, and informal networks operated openly and continued to discuss openly human rights and other political problems.

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