A/HRC/10/19
page 19
(i)
First core human rights element: review of national legislation in accordance
with the new Constitution and international obligations
89. The Special Rapporteur has recommended that the Government of Myanmar start
reviewing and amending domestic laws that limit fundamental rights and contravene the
new Constitution and international human rights standards. Myanmar, as a State Member
of the United Nations that signed the Charter of the United Nations soon after the country
gained independence in 1948, must honour its international human rights obligations, and
cannot invoke provisions of its domestic law as justification for its failure to comply with
them (article 27 of the Vienna Convention).
90. Any domestic law that limits the enjoyment of human rights should (a) be defined by
law; (b) be imposed for one or more specific legitimate purposes; and (c) be necessary for
one or more of these purposes in a democratic society, including proportionality. Any
limitation that does not follow these requirements and jeopardizes the essence of the right
with vague, broad and/or sweeping formulae would contravene the principle of legality and
international human rights law.
91. In his report submitted to the General Assembly (A/63/341), the Special Rapporteur
identified a number of legal provisions that do not fulfil the above-mentioned
requirements, and recommended that the Government start a process of review and, at
the same time, stop arrests and convictions under those legal provisions, namely, the
State Protection Act (1975); the Emergency Provision Act (1950); the Printers and
Publishers Act (1962); 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 (No. 5) (1996); the Law Relating to the Forming of
Organizations (1988); the Television and Video Law (1985); the Motion Pictures Law
(1996); the Computer Science and Development Law (1996); the Unlawful Association
Law; the Electronic Communication Law; and sections 143, 145, 152, 505, 505 (b)
and 295 (A) of the Penal Code.
92. During the Special Rapporteur’s mission to Myanmar in February 2009, the
Attorney General informed him that 380 domestic laws had been sent to the concerned
ministries for review, to check compliance with international human rights standards and
the provisions of the new Constitution. In the meantime, many people are still detained in
Myanmar and many harsh sentences against prisoners of conscience have been issued
under the above-mentioned domestic laws. The Special Rapporteur urges the Government
to give priority to the legal provisions listed above (see paragraph 91) when reviewing
the 380 domestic laws to check compliance with the human rights provisions of the
Constitution.
(ii)
Second core human rights element: progressive release of prisoners of conscience
93. At present, there are more than 2,100 prisoners of conscience detained in different
prisons around Myanmar. A prisoner of conscience is a person who (a) is charged with or
has been convicted for the infringement of national legislation, which impedes enjoyment of
freedom of expression, opinion, peaceful assembly, association or any other human right;
and (b) does not have access to a court, or is being tried by courts that lack independence
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