Michael H. Posner
Assistant Secretary, Bureau of Democracy, Human Rights, and Labor
Assistant Secretary, Bureau of Democracy, Human Rights, and Labor
Statement Before the Tom Lantos Human
Rights Commission
Washington, DC
February 28, 2013
Thank
you, Mr. Chairman, for holding this hearing and for the Commission’s
sustained concern about Burma over the years. I am particularly grateful
to the late Tom Lantos himself, who played a critical role in shaping
U.S. policy. I appreciate the opportunity to outline for the Commission
the administration’s views on human rights and democracy in Burma.
As
the members of the Commission are aware, the last 18 months have
brought a number of changes to Burma—from the release of hundreds of
political prisoners to the revision of several repressive laws—that many
would have said were unthinkable just two years ago. Of course the many
activists and advocates who have been pushing for and laying the
groundwork for the beginnings of a democratic opening in Burma didn’t
accept change as unthinkable—they maintained their struggle and their
courage for decades. And today, the United States seeks to support the
government and people of Burma as they seize the opportunity of change,
we recognize that here, as elsewhere, change has come and will come
principally from within.
As
President Obama said at Rangoon University during his historic visit
last November, “I came here because of America’s belief in human
dignity. Over the last several decades, our two countries became
strangers. But today, I can tell you that we always remained hopeful
about the people of this country, about you. You gave us hope and we
bore witness to your courage.”
During
his visit, President Obama welcomed the progress made in beginning a
transition to democracy, and urged further action. The government used
the occasion of his visit to commit to eleven substantial steps to
deepen and advance the reform process, including the creation of a
credible process to resolve remaining political prisoner cases,
providing unhindered access by the ICRC to all prisons and labor camps,
and inviting the UN High Commissioner for Human Rights to open an office
in Burma.
In
the 18 months since his government assumed office, President Thein Sein
has driven a reform agenda aided by a group of reform oriented
Ministers in his Cabinet, two reform-minded parliamentary speakers, and
by the hard work of many others within and outside government who share a
vision for a stronger, more prosperous, fair, and peaceful Burma. I
would also highlight that these developments have been a vindication of
Aung San Suu Kyi’s stalwart support for reform and opening in Burma.
With the tide of reform she helped put in motion coming in, Daw Suu
remains a unique symbol of hope and freedom in Burma, even as she
immerses herself in the difficult daily work of improving the quality of
democracy as a parliamentarian in her country.
The
United States needs to continue to support and push for reform. Despite
the progress that has been made in many areas, such as the release of
political prisoners and the successful by-elections last year, many
serious problems remain. The road to reform will be long and
challenging; it will continue to be bumpy. But the United States should
remain committed to serving as a long-term partner in the reform process
as long as it continues to move forward. Our engagement should extend
from our longstanding, strong commitment to promoting continued progress
on democracy and human rights.
I've
just returned from my fourth and final trip there, where I followed up
on the President’s visit and on the first-ever bilateral human rights
dialogue, held in October in Naypyitaw. That discussion, which covered
everything from legal reform to responsible investment to the protection
of civilian populations in war zones, featured a Burmese interagency
delegation including three ministers, members of the military,
opposition leader Daw Aung San Suu Kyi, as well as our own delegation
including representatives from the White House, the Pentagon, and
several other agencies.
Last
week, U.S. Ambassador Derek Mitchell, Deputy Assistant Secretary Daniel
Baer and I met with a range of civil society actors, including
representatives from the Kachin, Rohingya, and Rakhine ethnic
communities and former political prisoners. We met with Daw Aung San Suu
Kyi, now in her eighth month as a member of parliament, as well as key
actors in the government in Naypyitaw. By now, we have become accustomed
to the open, candid, and constructive exchanges we are able to have
with government officials – previously unthinkable.
I
want to recap for the Commission where progress has been made and where
progress still needs to be made in four key human rights areas: 1) the
status of political prisoners; 2) legal reform; 3) the situation in
Kachin State, Rakhine State, and the prospect for a broader national
reconciliation; and 4) the political economy of democratic reforms.
I. Political Prisoners
The
U.S. government first engaged directly with senior Burmese government
officials on this issue based on an extensive list of political
prisoners we compiled in 2011. In several stages over the last 18 months
the government has released nearly 800 political prisoners, including
its most high profile dissidents—leaders of mass movements, journalists,
bloggers, human rights defenders, people like Min Ko Naing, Ko Ko Gyi, U
Gambira, Hkun Htun Oo and others. They walked out of prisons across the
country to cheering crowds and weeping family members.
While
the release of these prisoners was historic, the story of political
prisoners in Burma did not end there. Nearly a year later, the
government has formed an official “Political Prisoner Review Committee,”
which held its first meeting in February in Rangoon. This Committee,
led by the Office of the President, is composed of eight government
officials and eight former political prisoner representatives. The work
of this committee will not be easy. But its existence is a major step
forward and the key to finding out the facts, healing wounds of the
past, and moving forward towards national reconciliation.
The
Committee has the potential to achieve three objectives critical to the
country’s democratic transition. First, it can accurately determine the
number of remaining political prisoners in detention and prompt their
unconditional release. Our hope is that Committee members will have
access to information and organizations that allow them to ascertain
relevant facts about remaining prisoners. This includes access to
prisons, prison records, court records, and prisoners themselves so that
the Committee can make truthful determinations about the status of
these prisoners. In addition, the Committee may wish to consult with
organizations such as the UN Office of the High Commissioner for Human
Rights, the Special Rapporteur for Human Rights in Myanmar, the Special
Rapporteur for Arbitrary Detention, and other experts. By operating in a
systematic and transparent manner, including by establishing a
mechanism for current prisoners to contact its members, the Committee
should be able to gain the public’s trust in its processes.
In
the course of its investigations, the Committee will be asked to
address cases of prisoners from various ethnic nationality areas who
have been involved in or associated with the armed struggle against the
government. Our hope is that the Committee will find a way to address
these cases in a way that is consistent with the goal of national
reconciliation.
Second,
the Committee’s consideration of specific cases should give it an
opportunity to identify laws that need to be reformed going forward and
to make recommendations to that end. This is not in the Committee’s
initial mandate, but can be an important collateral benefit as the
government and civil society work together to implement legal reform and
build the rule of law.
Finally,
the Committee has the potential to help advance efforts to provide care
and facilitate the reintegration of released prisoners. Many former
prisoners experienced extremely harsh conditions, many years of solitary
confinement, and denial of medical care. A number of these former
prisoners are struggling to reintegrate into society. They lack housing
and medical care, and many suffer from PTSD or depression. In some
cases, the government has denied them passports or prevented them from
continuing their educations or obtaining credentials they had already
earned, so they lack the degrees and certificates necessary to find
jobs. Since release, several former prisoners have died from severe
medical complications developed while in prison. These released
political prisoners need greater attention to these needs and hopefully
the Prisoners Committee can help shape the government’s response to this
set of needs. The United States stands ready to provide technical
assistance and funding to support such initiatives.
In
short, the prisoner process represents a double opportunity—not only
can it bring the release of remaining political prisoners, it also can
provide an example of how government and civil society can work together
in an open and credible process to tackle difficult problems. It won’t
be easy but the potential is tremendous.
II. Legal Reform
An
important element of strong, democratic societies is adherence to the
rule of law, which in turn depends on a strong constitution that has
broad public support. Civil society actors, ethnic nationality
representatives, and international human rights experts alike have
repeatedly called for changes to Burma's 2008 Constitution so the
document may better reflect the country’s new democratic aspirations.
The Constitution is the foundational document of any society — in the
run up to the 2015 national elections there is an opportunity for the
people and government to debate and decide how best to address these
issues.
Revision
and repeal of flawed laws and regulations is another key area to which
the government – both executive and legislative branches – should pay
attention in the coming years. In the last two years the parliament has
drafted, and the executive has signed, a series of new laws that
constitute the first important phase of legal reform. During this period
the government has passed laws criminalizing forced labor, legalizing
labor unions, and allowing the opposition to run in the April
by-elections. However, a number of other laws remain in place, many are
hold-overs from the colonial administration that are inconsistent with
international human rights standards. The government has begun to review
and revise these laws, for example by repealing two problematic laws
last month, one banning public gatherings of more than five people and
another banning daily newspapers.
Broadly
speaking, these remaining laws fall into three categories: 1) media and
“electronics” laws that restrict freedom of expression and the press;
2) laws that are inconsistent with the freedom of association by
restricting membership in associations of which the government does not
approve; and 3) vaguely defined national security laws that give the
government overly broad authority to arbitrarily arrest citizens. While
the government has mostly ceased enforcing these laws, reforming
outdated legal statutes should be a high priority for the parliament and
the executive.
For
example, the 2011 Law on Peaceful Assembly and Procession legalized
protests for the first time in 20 years – a major step forward for
freedom of association. However, the new law also contains provisions
that have proved problematic, for example, the requirement to apply five
days in advance with detailed information about a planned protest or
demonstration. According to the law, the right to protest will be denied
if “the security of the State, rule of law, public tranquility and the
existing laws protecting the public are to be breached.” Any protest for
which permission is denied is deemed illegal under the law, and anyone
taking part can be arrested and sentenced for up to a year in prison.
Dozens of protesters have been arrested, and many have been charged and
are awaiting trial for violations of this law since its adoption in
2011.
We
met a Kachin activist on our recent visit who faced charges that could
land him in prison for six years under the Law on Peaceful Assembly and
Procession for joining a peace walk through Rangoon calling for peace in
Kachin State. He received one count worth one year for each of the six
townships through which he walked.
Independence
of the judiciary also is critical to advancing reforms. There is no
independent bar association, and we are told that there is not one
lawyer on Burma’s Supreme Court. The justice system also lacks a number
of basic elements of due process. For example, defendants are not
guaranteed the right to a state-appointed attorney except in capital
(death penalty) cases. Improvements need to be made in the quality of
legal education, training of legal professionals and investigators,
accessibility of laws and of electronic and forensic evidence. We stand
ready to assist in these areas.
The
government has taken several promising steps in recent months. Dozens
of lawyers who were previously disbarred for taking politically
sensitive cases have had their licenses restored; government officials
have stated that those still without licenses will be able to seek
reinstatement. We understand also that there are plans underway to
create an independent bar association. In addition, efforts are underway
to train prosecutors and other government legal staff on international
standards and the rule of law. Going forward, as long as we see signs of
genuine political will to make these and related reforms, we stand
ready to provide technical assistance and support. The Office of the
High Commissioner for Human Rights can also, among other functions,
provide key technical assistance and training to the government and
civil society actors to support the rule of law and legal reform.
At
our October 2012 bilateral Human Rights Dialogue in Naypyitaw senior
government representatives were open and candid in their assessment of
the challenges in the legal system and in expressing their intention to
undertake wide legal reform. We also urged the government to take steps
to sign and ratify key human rights treaties, including the
International Covenant on Civil and Political Rights and the Convention
Against Torture. We raised our concerns about legal and other
restrictions on religious freedom and our desire to collaborate to
address them. We look forward to working with the government and with
civil society to lend support and technical expertise in this important
process.
III. Kachin State and Rakhine State Updates
Many
of the country’s vast natural resources are located in its ethnic
nationality regions, particularly in Kachin State, where war is being
waged for both reasons of political autonomy generally and control over
these resources specifically. This ongoing fighting has contributed to
human rights abuses and social instability. In the past when the
military and business join forces, often we have observed patterns of
land confiscation, forced labor, environmental destruction, and severe
human rights abuses on local populations around these projects.
The
government has signed ten ceasefire agreements with armed ethnic groups
in the past year, including with the Karen National Union with which it
had previously been at war for over 60 years. Still, the government’s
previously longest running and most stable ceasefire with the Kachin
broke down 18 months ago and fighting has intensified in recent months.
In December, the military used helicopters and jets to attack Kachin
Independence Army positions, marking the first use of air power against
an armed ethnic group in decades. The Army continued using heavy
artillery to shell KIA positions. Estimates are that tens of thousands
of Kachin IDPs remain cut off from international humanitarian aid since
July 2012. In our talks with the government, I stressed the urgent need
to grant immediate access for humanitarian organizations to all those in
need. Since the December escalation both sides have tentatively
returned to the negotiating table, though a ceasefire will not be
reached easily. In the immediate term we have pressed for, and the
government has committed to, restoring international humanitarian access
to IDPs both in government and in KIA-held territory.
There
have been recent signs of improvement: major international humanitarian
groups such as ICRC and UNOCHA have recently regained limited access to
deliver aid to Laiza and Hpakant in Kachin State; we are hopeful that
these initial visits will produce the long-term sustained access these
organizations need. Smaller community based Kachin organizations we
spoke with have emphasized the need for these larger organizations to
continue to fund smaller service delivery groups who do not need
government permission to deliver assistance to IDPs in difficult to
reach places. We have continued to press the government to allow ongoing
humanitarian access for all groups which is crucial not only for
delivering assistance but also laying the groundwork for the kind of
trust that a ceasefire requires.
We
remain concerned about the situation in Rakhine State, which has
resulted in more than 100,000 IDPs since violence erupted in June and
October. This violence broke out quickly and included attacks on
non-Rohingya Muslim communities such as the Kaman, one of the country’s
135 officially- recognized national races. The Rohingya, unlike the
Kaman, are not recognized as an ethnic nationality and with an estimated
population of 800,000 inside Burma, they are the world’s largest
stateless population. Hatred of, and discrimination against, the
Rohingya are widespread, with little public support to recognize them as
an ethnic nationality. The central government played a key role in
stemming the violence in June and October 2012, although local Rakhine
security forces were often cited as contributing to if not inciting
violence. But the medium and long term solutions to the Rakhine crisis
present very difficult political obstacles. Practical interventions to
prevent further violence along with training in conflict mediation,
dialogue facilitation, and community dialogue are necessary. For now,
the U.S. approach has focused on delivering humanitarian aid to both the
Rakhine and the Rohingya communities in IDP camps and diplomacy with
the government on longer term solutions to ensure that these temporary
solutions do not occlude comprehensive reintegration and reconciliation
of both the Rohingya and Rakhine communities. We will watch with great
interest the findings and recommendations of the government’s Rakhine
Commission report, which is due in March.
On
the religious freedom front we are deeply concerned about reports of
continuing human rights and religious freedom violations in the ethnic
nationality regions, including reports of sexual violence, the use of
churches as military bases by the Burmese army in Kachin State, and
coerced religious conversions in Chin state. We have engaged the
government on this issue both during the human rights dialogue and in
subsequent meetings, and encourage the Government of Burma to promote
religious freedom and tolerance throughout the country and to hold
accountable those who commit violent acts against religious minorities.
IV. The Political Economy of a Rights-Respecting Democracy and U.S. Sanctions Policy
At
the turn of the 20th century, Burma was one of the wealthiest states in
Southeast Asia, boasting vast reserves of fossil fuels, rubies, gold,
jade, tin, copper, timber, teak, and a plentitude of other natural
resources. Today it is the poorest country in the region in per capita
GDP. This reversal of fortune is the result, at least in part, of
decades of self-isolation, repression and regression in the rule of law
and quality of education coupled with economic mismanagement and civil
war. The military-business nexus is still strong despite recent
political reforms. There is still insufficient transparency relating to
revenues from natural resource or into where these revenues end up. Some
critics allege that the country’s natural wealth, auctioned off to
highest bidder, continues to be siphoned to offshore accounts rather
than flowing into the national budget. Investment in many natural
resources are still controlled and financed by military controlled
enterprises, such as the Myanmar Economic Corporation and the Myanmar
Economic Holdings Limited or their sub-entities. Our sanctions remain in
place on these entities for this reason. If Burma is to develop the
political economy of a modern, rights-respecting democratic state, the
government will have to tackle this nexus with the tools of
transparency—auditing, public disclosure, and full accountability for
corruption. The Government of Burma has committed to join both the Open
Government Partnership and the Extractives Industries Transparency
Initiative, both of which will provide opportunities to enhance
transparency and ensure broad based development.
President
Thein Sein’s government has pledged to do business differently, and the
United States has committed to supporting these efforts through our
calibrated easing of economic sanctions to support political and
economic reforms. In 2012, we broadly authorized new investment in Burma
for the first time in 15 years, including in Burma’s multi-billion
dollar oil and gas sectors. However, to ensure that military-owned
enterprises would not benefit from this opening, investment in
military-owned companies remains off limits. Similarly, U.S. companies
are not authorized to make payments to the military to provide security
for their investments, as the military is the primary driver of the
worst human rights abuses. We also instituted the Reporting Requirements
for Responsible Investment, which require U.S. persons making
investments over $500,000 to report on their human rights,
environmental, labor, and anti-corruption due diligence procedures.
Companies without such due diligence procedures in place may
nevertheless invest in Burma, provided they report that they do not have
these policies in place. Our expectation is that companies that report a
lack of adequate human rights policies will face pressure from civil
society actors here and in Burma to develop them, and our hope is that
companies will develop policies in collaboration with these groups.
Some
have argued that these reporting requirements are too onerous and
discourage investment, while others argue that they are too permissive
and do not providing adequate human rights safeguards. But we’ve also
heard from large American companies and members of Burmese and U.S.
civil society who strongly support them. Our intention is to strike a
balance, guarding against an economic free-for-all that would funnel
investment to the military and its companies while still incentivizing
responsible investment that contributes to Burma’s economic
modernization, job creation, and widely-shared prosperity.
Bottom-up Action to Match Top-down Reform
President
Thein Sein’s government and the parliament have admirably created a
top-down reform process that has pushed through a range of important
initiatives at a rapid pace. These changes have opened important and
unprecedented political space. But open political space will not bring
meaningful change unless more people throughout the country and in all
segments of the society move into this space and start to use it.
Making
Burma a home for all of its people will require broad, grassroots
engagement by the widest possible range of its citizens, from ethnic
leaders and bloggers, to lawyers and lawmakers, to factory workers and
human rights advocates.
All
of these groups will need to push for structural changes from the
bottom up, at the same time as the political leadership works to push
reform from the top down.
Where
these two forces meet is not for the United States to say. It’s up to
the Burmese to build trust on both sides and to negotiate a space where
they can coexist peacefully, and in so doing to begin to make durable,
systemic change.
Reforming
the system from within is an immense task. It will require political
will from the top down, dynamism from the bottom up, and for those who
have profited from power to share it.
I
am optimistic about Burma’s future. Our optimism should not result in
easing up on our efforts to promote further reform or putting blinders
on about the profound challenges ahead in the country. But it does mean
that we reconsider long held assumptions, recognize the dynamic change
that is occurring, and seize the opportunities to support the Burmese
people – and especially its politically active civil society – as they
pursue real, sustainable reforms from within.
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