A/HRC/25/64
56.
The Special Rapporteur reiterates the role of lawyers in establishing the rule of law
in Myanmar, including in upholding fair trial rights and in helping to ensure that laws are
applied in line with international human rights standards. He remains concerned about the
lack of protection of lawyers against reprisals, including violence, threats and
discrimination, particularly for those involved in cases considered to be politically
sensitive. He urges the parliament to amend the Bar Council Act to transform the Bar
Council into a self-governing professional association to defend the integrity and
independence of the profession and maintain professional standards in accordance with the
Basic Principles on the Role of Lawyers and other international standards. He highlights the
responsibility of all branches of government to ensure the protection of lawyers against
reprisals and, furthermore, recommends that the parliament reform the contempt of court
laws to ensure that lawyers cannot be subjected to sanctions because of their association
with politically sensitive cases.
57.
While the Myanmar National Human Rights Commission, established by Presidential
decree in September 2011, has undertaken some good initiatives, the Special Rapporteur
highlights that it is not an independent institution. Noting that the international community
has provided technical advice on a new draft enabling law, he stresses the importance of the
parliament passing a law which establishes a Commission in accordance with the principles
relating to the status of national institutions for the promotion and protection of human rights
(the Paris Principles), including with regard to the selection of commissioners.
58.
Regarding the review of national legislation referred to in the first core human rights
element, the Special Rapporteur observes that, of the 16 laws and sections of the Penal
Code originally identified as in need of reform (A/63/341, para. 93), only one has been
repealed (the Law Protecting the Peaceful and Systematic Transfer of State Responsibility
and the Successful Performance of the Functions of the National Convention against
Disturbance and Oppositions); the rest are under consideration by the parliament or the
relevant ministries (A/68/397, para. 67).
59.
Furthermore, for national reconciliation and the democratic transition to proceed,
important changes to the Constitution are also needed. The 109-member joint committee for
reviewing the 2008 Constitution, set up by the parliament on 25 July 2013, reported at the
end of 2013 that it had received 28,247 letters of suggested reforms from the executive,
legislative and judicial branches of Government. The Special Rapporteur welcomes the
President’s remarks in January 2014 that a healthy constitution must be amended from time
to time to address the national, economic and social needs of Myanmar society, to
strengthen democratic attitudes and values and to facilitate national reconciliation and the
peace process.
60.
Reforms to the Constitution will be needed to embrace the aspirations of ethnic
communities to have their human rights respected, to have a say in Government decisions and
to benefit from the resources held within their lands. Furthermore, to ensure the accountability
of all State institutions under the rule of law, it is necessary to bring the military under civilian
control and oversight, which requires amendment of article 20 (b), which currently gives the
military “the right to independently administer and adjudicate all affairs of the armed forces”,
as well as of article 445, which currently states that “no proceeding shall be instituted against
the said [previous] Councils or any member thereof or any member of the Government, in
respect of any act done in the execution of their respective duties”. The following
constitutional provisions require amendment for the overall transition to a democratic system
of civilian governance to proceed: provisions which allow for military appointees to occupy
25 per cent of seats in the parliament (arts. 74, 109 (b) and 141 (b)), thereby also providing
them with an effective veto on constitutional changes; article 232 (b), which requires the
President to appoint the ministers of Defence, Home Affairs and Border Affairs from lists of
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