“These allegations are unfounded. Nobody is arrested on political grounds. Maintenance of law and order is a key responsibility of the government. Legal action is taken against those who violate the existing laws.” 33. By way of response to “conditions of detention and treatment of prisoners,” it is stated: “3. Paragraph 11 of the Report contains the allegations of arbitrary arrest and torture of the people accused of association with the Kachin Independence Army (KIA). Legal action was taken against those who were found guilty of being unlawfully associative with the KIA. 4. Paragraph 11 also contains the allegations that Muslim prisoners detained in Buthidaun prison after the violence in 2012 were tortured and beaten to death. The authorities have examined these allegations. After verification they found that the allegations were baseless.” 34. The government also maintains that the allegations regarding attack against the civilian population and other forms of human rights violations and the chapter headed “Conflict and the Situation of Ethnic Minorities” are unfounded, with the observation that it is regrettable that the report has omitted the destructive, terrorist acts committed by the KIA in Kachin State. As to the situation in Rakhine State it is similarly stated that the allegations in paragraph 48 of the report of harassment, arbitrary arrest and arbitrary restriction of movement, destruction of places of worship and restrictions are unfounded, with reference to temporary places of worship being set up in the IDP camps and government medical personnel actively working with the Myanmar Red Cross. 35. The references in the report to human rights violations committed by Nasaka particularly against the Muslim community are described as “inappropriate” and therefore “unacceptable.”
“The Special Rapporteur’s recommendations that are contained in paragraph 66 are premature. Time is not right to consider the amendment of our constitutional provisions.”
“The second flaw is the underlying assumption that the Burmese authorities in Rangoon operate a rational decision making process which can reliably be trusted to distinguish between a genuine political opponent and a hanger-on. There is no evidence of how the authorities, faced with a person identified and photographed participating in an anti-government demonstration outside the Embassy in London might go about satisfying themselves that the person in question is simply an opportunistic hanger-on. The general evidence about the behaviour of the authorities does not support a tendency to rational, careful assessment. The accepted evidence is of a repressive, arbitrary regime. A presumption of rational assessment – which is what paragraph 93 amounts to – is, in my judgment, counterintuitive in the context of the rest of the accepted evidence. The confidence placed in the Burmese authorities is not supported by evidence. For these reasons, I do not consider that the reasoning of the UT can be supported.” 82. We heard evidence that intelligence gathered in London on those who demonstrate against the government and who are involved here in political opposition is fed back to senior officers in Burma for assessment. Given Dr Zarni’s experience we are satisfied this is an accurate reflection on what has gone before and we have no evidence to believe that it does not continue. It appears to us that the Burmese government is seeking to achieve what may well prove to be the impossible; to maintain control of its citizens, to permit opposition but to preserve itself in power, and furthermore to preserve the Union. This explains the evidence we have heard of the response by the government to protests in regions where there is a strong presence of “ethnic nationalities” and the concern expressed by Dr Zarni in his evidence of the snowballing effect when the causes of ethnic nationalities are taken up by mainstream oppositionists in the country at large. In such a context and because considerable resources appear to be devoted to intelligence and control, it is highly unlikely that this is executed without some form of evaluation of the security threat an individual may pose. This is reinforced by the evidence we heard about monitoring which we consider to be indicative of an evaluative based approach by the Burmese authorities in particular the matters referred to in [22(iii)] and [26(iv)] above and [8], [44] and [48] in Schedule Two. Although it is clear as a general principle that for repressive arbitrary regimes rational decision making cannot be assumed, on the particular evidence now before us, risk can be assessed on what surveillance and monitoring are likely to reveal. 83. Based on the evidence as a whole, the guidance we give is as follows. (i) In order to decide whether a person would be at risk of persecution in Burma because of opposition to the current government, it is necessary to assess whether such activity is reasonably likely to lead to a risk of detention. Detention in Burma, even for a short period, carries with it a real risk of serious ill-treatment, contrary toArticle 3 of the ECHR and amounting to persecution/serious harm within the meaning of the Qualification Directive. (ii) A person is at real risk of being detained in Burma where the authorities regard him or her to be a threat to the stability of the regime or of the Burmese Union. (iii) The spectrum of those potentially at risk ranges from those who are (or are perceived to be) actively seeking to overthrow the government to those who are in outspoken and vexing opposition to it. Whether a person is in need of protection will depend upon past and future political behaviour. This assessment has to be made against the background of a recently reforming government that carries a legacy of repression and continues to closely monitor those in opposition. The evidence points to a continuing anxiety over the break up of the state and the loss of its power. (iv) The question of risk of ill-treatment will in general turn upon whether a returnee is detained by the authorities at any stage after return. (v) A person who has a profile of voicing opposition to the government in the United Kingdom through participation in demonstrations or attendance at political meetings will not for this reason alone be of sufficient concern to the Burmese authorities to result in detention immediately upon arrival. This is irrespective of whether the UK activity has been driven by opportunistic or genuinely held views and is regardless of the prominence of the profile in this country. (vi) A person who has a profile of voicing opposition to the Burmese government in the United Kingdom can expect to be monitored upon return by the Burmese authorities. The intensity of that monitoring will in general depend upon the extent of opposition activity abroad. (vii) Whether there is a real risk that monitoring will lead to detention following return will in each case depend on the Burmese authorities’ view of the information it already possesses coupled with what it receives as the result of any post-arrival monitoring. Their view will be shaped by (i) how active the person had been in the United Kingdom, for example by leading demonstrations or becoming a prominent voice in political meetings, (ii) what he/she did before leaving Burma, (iii) what that person does on return, (iv)the profile of the people he or she mixes with and (v) whether a person is of an ethnicity that is seen by the government to be de-stabilising the union, or if the person’s activity is of a kind that has an ethnic, geo-political or economic regional component, which is regarded by the Burmese government as a sensitive issue. (viii) It is someone’s profile in the eyes of the state that is the key to determining risk. The more the person concerned maintains an active political profile in Burma, post-return, the greater the risk of significant monitoring, carrying with it a real risk of detention. (ix) In general, none of the risks identified above is reasonably likely to arise if an individual’s international prominence is very high. The evidence shows that the government is keen to avoid adverse publicity resulting from the detention of internationally well-known activists. (x) In the light of these conclusions, TL and Others (Burma CG)[2009] UKAIT 00017 can no longer be relied on for Country Guidance. The issue of illegal exit and its consequences considered in HM (risk factors for Burmese Citizens) Burma CG[2006] UKAIT 00012 were not addressed by the parties and the guidance in that decision remains in force for the time being. (xi) There is evidence of positive changes in Burma which as they become embedded may result in the need for the present country guidance to be revisited by the Upper Tribunal in the short to medium term. Determination of the Appeal 84. As we have observed there is no dispute on the facts. The appellant has been able to demonstrate a high–profile in the UK, and also an active intention to protest and demonstrate on return. The authorities will know about him; it is not likely that he will be detained on arrival at the airport, but he will be monitored and, as he progresses politically in Burma, it is reasonably likely that he will be seen as vexing the authorities by espousing the separatist cause and he will be detained for questioning. He will thus be in need of protection. His appeal is allowed. 85. We have all contributed to this determination. Upper Tribunal Judge Dawson Dated10 June 2013 S chedule one – the expert and other evidence in detail Evidence of Ms Marcia Robiou 1. Ms Robiou describes herself as a ‘Committed human rights specialist with a strong track record in writing, research and advocacy’. She was awarded a Bachelor of Arts in Anthropology and Politics at New York University in 2006. She worked as a teacher in Mandalay, Burma, between January 2010 and May 2010 and was thereafter employed as a Program Manager for an education network in Thailand. Since May 2011 she has been employed by the Assistance Association for Political Prisoners – Burma, [hereinafter ‘AAPP’] in Mae Sot, Thailand, as a Human Rights Research and Advocacy Adviser. In her oral evidence Ms Robiou described this organisation as having been founded in 2000 by two former Burmese political prisoners, being entirely staffed by former political prisoners from Burma, as having ten people working in headquarters in Mae Sot and as having an underground network of ’10 to 12 groups of 5 to 7 former political prisoners spread throughout Burma and in particular near major prisons’. As to her role within the organisation she described this, in her oral evidence, as involving briefing diplomats and government officials on the situation of political prisoners in Burma and writing urgent appeals based on dater collected by the networks inside Burma. Ms Robiou also currently acts as a ‘Researcher, Writer and Advocacy Consultant’ to an organisation called Minority Rights Group International’ also based in Mae Sot, Thailand. In that role she has authored a report on the denial of participation rights for ethnic minorities in Burma, as well facilitating training on ‘data collection for ethnic minority groups’. 2. We were provided with a lengthy written report from Ms Robiou, dated22 January 2013 , as well as three written addenda to that report. The first and second addenda are dated5 March 2013 , with the third being undated. In addition Ms Robiou provided evidence by way of an e-mail dated8 March 2013 , to Mr Mullins. 3. By way of a further e-mail dated14 March 2013 Ms Robiou confirmed that she provided her evidence to the tribunal in her personal capacity and not on behalf of the AAPP. Written Evidence 4. Ms Robiou’s report of22 January 2013 is largely drawn as a direct response to questions posited of her by the appellant’s legal advisers [check]. 5. Commenting on the attitudes and mind set of the Burmese regime she observes: a. Although the regime in Burma is slowly opening, characteristics commonly exhibited in authoritarian regimes still remain in place. b. Small scale reforms, such as legalising protests and increased space for political parties to operate, have taken place. There is now a greater sense of freedom in Burma that was not in existence under the previous regime. Genuine free and fair elections have yet to take place. c. There is no guarantee or respect for human rights. People are arrested and tortured whenever they are deemed a threat to the state. Legal reforms are undermined by vague and broad provisions making it clear that criticism of the regime is not tolerated. This conclusion is supported by reference to the arrest in March 2012 and re-arrest in December 2012 of the dissident monk Nyi Nyi Lwin (formerly known as U Gambira). 6. Ms Robiou notes that there have been at least 52 politically motivated arrests in Burma since17 September 2012 . Many of the arrests have been of Kachin ethnic minorities or members of the All Burma Student Federation Union. Some of the 52 may have been released on bond but still face court proceedings. As of the date of the report there were 222 political prisoners in detention. The government continues to deny the existence of political prisoners, asserting such persons to have ‘committed criminal activities’. 7. As to how the Burmese administration views the opposition in exile Ms Robiou considers that: a. The administration treats the opposition in exile with scepticism. They have extended an ‘olive branch’ to activists in exile for the purposes of gaining political capital in the eyes of the international community. b. The names of 2,082 people were removed from the blacklist; a list comprised of foreign and Burmese nationals regarded and threats to peace and stability. These names were made public in August 2012. 4000 names remain on the blacklist. Nobody knows whose name is on the blacklist, save for the President. 8. Ms Robiou identifies the fact that the Burmese authorities have an institutionalised and sophisticated spy network throughout the world with Burmese embassies being staffed by Military Intelligence. It is common for Military Intelligence to go undercover and infiltrate protests, student unions and ‘known hangouts for dissidents’. These networks monitor and document information on individuals involved in oppositionist movement. The information held by the Burmese authorities is very detailed. Each month a report is compiled and sent to the Ministry of Foreign Affairs and the Military Strategic Command Centre. 9. In answer to a question as to how the Burmese regime would treat persons returned to Burma who have demonstrated outside the Burmese embassy, but where there were no other records held of oppositionist activities within Burma, Ms Robiou responded by observing that it is difficult to comment on such matters given the unpredictable nature of the Burmese regime. She noted however that: a. A number of highly outspoken activists with foreign passports had returned to Burma with no incidences of arrest or major harassment, including senior figures for the AAPP; b. There have been accounts of returning exiles being forced to sign a form pledging they will not partake of any activities or engage in criticism that will ‘harm the state’; c. Risk levels are exacerbated by outstanding grave criminal charges such as for rape or murder, a long history of visible and outspoken political activism against the regime in Burma, being a member of an ethnic minority particularly Kachin, or living near a conflict area or a development project. 10. Ms Robiou considers there to be a ‘real’, ‘real and high’ or ‘very high’ risk of detention (as variously stated) to anyone who publically demonstrates in Burma, regardless of their ethnic origin. She observes that there has been a dramatic increase in the number of public demonstrations in the past year and although peaceful demonstrations have been legalised, this is superficial and the repression of public demonstrations still takes place. Ms Robiou supports this conclusion with reference to the arrest in September 2012 of 13 activists leading a peaceful march of 1000 demonstrators to commemorate International Peace Day and to call for an end to the civil wars in Kachin state and elsewhere in Burma, and the arrest and ill treatment of the leaders of an anti copper mine protest in Sagaing Division. She notes that the length of time spent in detention after arrest varies widely. 11. Ms Robiou further considers that the Burmese regime regards those who associate with suspected opponents with the same level of suspicion it regards genuine dissidents and activists, subjecting them to harassment, such as visiting the person at his/her place of residence to conduct a search of their home. Whilst the Burmese authorities previously followed and monitored suspects, she had only noticed such actions by the current regime in relation to prominent activists. She further acknowledged that she was unaware of any cases in the post Thein Sein regime where an individual was questioned merely for being associated with activists. She also acknowledged the practice of visiting a suspect’s house does not occur as often under the current regime. 12. Suspects face being apprehended and taken to a detention centre. If the authorities believe the individual has useful information, such as the structure of an underground network, or where they are eager to attribute blame for a particular crime such as a recent bomb explosion, the suspect will be psychologically and physically tortured. 13. Former political prisoners who have been released by the current regime have complained of being monitored and such persons are ‘not really’ free and are vulnerable to arrest at any time. Their criminal records remain intact. They are subject to harassment including denial of passports, being barred from employment opportunities, and denial of educational opportunities. 14. Ms Robiou continues by observing that the regime acts in this manner because it is characterised by the paranoia of losing their hold on power. Associates of activists are monitored in order gather information on the activist/network so as to pre-empt something from happening, such as a large protest. Political prisoners are often charged with other serious offences. 15. She considers that it is reasonable to draw a distinction between those who have demonstrated in Burma, where it is inconceivable that a person would demonstrate unless that person opposed the regime, and those who have attended demonstrations in the United Kingdom; where demonstrators run a very low risk of being arrested. She noted, however, that anyone who engages in oppositionist activity is viewed with mistrust and seen as the opposition. 16. In response to being asked whether she agreed with the Tribunal’s assessment in TL (Burma) that ‘the regime would not persecute someone who they knew to be a hanger-on with no real commitment to the oppositionist cause who was demonstrating in the United Kingdom merely to enhance a false claim for asylum’, Ms Robiou stated that she is unaware of any way in which the Burmese authorities would be able to determine a person’s motivation for demonstrating in the United Kingdom. 17. Ms Robiou states that if a returnee, having demonstrated in the United Kingdom, is neither a prominent activist nor has a history of oppositionist activity in Burma, there would be a low risk of such person suffering serious harassment from the Burmese authorities, unless he/she continued to demonstrate in Burma. It is conceivable that a returning exile not well known on either the domestic of international scene for his/her oppositionist activity is at higher risk than a more prominent returning exile. Arresting exiles on return is seen to tarnish the administration’s reputation. It is therefore not in the interest of the regime to arrest a returned exile from the United Kingdom. She acknowledged that she is unaware of any returning exile having been arrested in Burma for their activism in the United Kingdom. Prominent leaders are subjected to harassment such as phone tapping and restrictions on their freedom of movement. 18. Ms Robiou notes that two of her colleagues, former political prisoners, have returned permanently to Burma without official invitation and using their Burmese passports. One works on a mental health project for former political prisoners and the other for an exiled organisation that documents human rights abuses. Neither has faced any harassment or monitoring. 19. She further confirms that bribery is endemic in Burma. She was unable to comment on the extent bribery plays in the issuing of passports and exit documentation, or as it relates to immigration officers at points of entry and departure from Burma. 20. In respect of the appellant, Ms Robiou concludes that he would be at risk if he continues his oppositionist activity in Burma or travels to an ethnic minority region where there is open conflict. There are ongoing conflicts in Kachin, Shan, Karen, Karenni and Arakan State. She states that she cannot be certain that the appellant would be arrested simply as a consequence of the activities he has undertaken in the United Kingdom. 21. She confirms that in order to better assess personal risk an individual could take the step of asking for an official invitation to visit the country from the government of Burma. She suggests that this is a path that the appellant may wish to take. However she also states that it is mainly exiled organisation and not individuals that are extended official invitations to return to Burma. 22. In the first addendum to her report of22 January 2013 , Ms Robiou observes as follows: a. Low profile activists and dissidents are disproportionately targeted by the state security forces; b. High profile activists in the international arena are generally allowed to carry out their political and humanitarian activities with little or no incidences of harassment. This is a tactic the Government of Burma uses to ‘trick’ the international community that they are genuinely reform minded; c. Individuals with no history of activism are now fighting for their rights. The government, instead of responding to the concerns of the people, have responded in manners reminiscent of the ‘brutal military rule’; d. There has been an arbitrary application of the protest bill. Demonstrations that support government policy are allowed to proceed, whereas those which criticise government policy are not allowed to and participants in such demonstrations are the subject of arrests, detentions and ill treatment. 23. In the second addendum, Ms Robiou cites examples of low profile demonstrators briefly detained (for several hours) for violating the Peace Assembly and Procession Bill but who have not faced formal charges. She refers to such individuals being questioned and a number being required to sign admissions that they did not have permission to protest. 24. Ms Robiou further identifies that three activists who played a leading role in the copper mine protests were assaulted and treated in a degrading manner whilst in detention. She also provides an example of a labour activist who spent 177 days on remand awaiting trial, his family members being refused permission to see him on at least two occasions. Annexed to the second Addendum are three lists; the first identifies the names of eight persons convicted and sentenced under the ‘Protest Bill’, the legal provision breached, the date those persons were arrested (all in November or December 2012) and the sentence each received (either one month or six months imprisonment); the second lists 84 persons currently awaiting trial under for such crimes and includes the date of the persons arrest, and the third list comprises of the names of 40 persons that have been arrested for ‘other’ criminal offences. 25. In the third addendum to her report, Ms Robiou confirms that she is aware of low profile activists, who have not engaged in protests, demonstrations or processions who have returned to Burma and have not been harassed. These persons were engaged in lobbying activities against the Burmese government or were staff members of vocal exile organisations. Her opinion is that this is ‘standard’ for low level activists seeking to return to Burma with no plans to partake in political activity. 26. In her e-mail of the 8 March, Ms Robiou states: a. Low level protestors and demonstrators are arbitrarily and briefly detained. In detention they are subject to physical harm and verbal harassment. b. Critics in Burma are monitored, followed and harassed on a regular basis; c. Her colleagues, low level activists who have returned to Burma to obtain passports, have complained of having their telephone conversations tapped; d. The appellant will be subject to some sort of monitoring upon return. Depending on how much a threat the government perceives him to be, and his political activities in Burma, he could be subject to other repressive tactics such as restrictions on freedom of movement and denial of employment opportunities. e. The 120 arrests that AAPP have record is not a ‘small’ number. Each and every protest faces some level of repression. Oral evidence 27. In examine in chief Mr Robiou stated that the lists of those in detention attached to the second addendum of her report of January 2013 are incomplete. AAPP has a complete picture in relation to the Rangoon and Mandalay areas, but not for other areas. She expected the numbers to rise exponentially as other areas of Burma are accessed. She confirmed that AAPP has sent her a monthly list of those in detention, which shows 77 individuals facing trial under the Protest Bill, 48 face trials under miscellaneous Acts although many of these were arrested whilst protesting and 45 are on trial in Shan state. In her further belief is that approximately 1000 persons are imprisoned in Rakhine state, having been involved in clashes in July and August. She considered that those persons who live in conflict states are disproportionately targeted, with innocent people being arrested and tortured. In response to being asked the numbers of innocent people detained, Ms Robiou acknowledged that it was difficult to access such information. She stated she was aware that 57 people are on trial in Kachin State and that many people are held in secret detention centres; not even family members knowing where they are detained. 28. It is Ms Robiou’s opinion that the appellant would be monitored upon return to Burma. She agreed that the evidence given in her email of the8 March 2013 was true, noting that low level protestors and demonstrators are arbitrarily briefly detained, without being told why, and suffer physical harm and verbal harassment during such a detention. She supported this conclusion by reference to the consequences suffered by a female copper mine protestor who was sexually abused by a policeman. She did not consider this to be an isolated incident and thought the risk of ill treatment during a brief detention to be ‘very high’. 29. Finally in examination in chief, in response to being asked what she thought placed the appellant in a high risk category of a short term detention, Ms Robiou stated that the appellant’s previous political activity in the United Kingdom would put him at risk because the government would be monitoring who he is interacting with and what sort of activities he was undertaking in Burma. She ‘suspected’ that during interrogation or brief detention the interrogators would want to extract information about the appellant’s activist networks. The preferred tool for doing so is torture. 30. In cross examination Mr Avery asked Ms Robiou whether her two colleagues who had returned to Burma had any evidence to support their belief that their phones were tapped. She responded by accepting that such beliefs were based on suspicion only, however each had heard the sound of typewriters in the background whilst on the telephone. This was something that often used to happen under the military rule. She accepted that this was the extent of the difficulties suffered by her colleagues. 31. Mr Avery then drew Ms Robiou’s attention to a conflict between the evidence she gave in her e-mail of the8 March 2013 , in which it is stated that low level critics are monitored, followed and harassed on a regular basis, and the evidence given in her report of22 January 2013 , in which it is said that the practice of following and monitoring suspects continued only in relation to prominent activists. Ms Robiou explained this by stating in the past couple of months more low level activists located in Thailand have gone back to Burma to apply for passports or visit family members. However, at the time of writing the report of22 January 2013 only high level activists had gone back, and these were mainly at the invitation of the government. 32. She then acknowledged that she is aware of only 13 of the 1000 Peace Day protestors having been arrested; although she believed that she had only 70% of the complete picture. When asked what evidence she had to support her contention that there is a high risk of being detained at a protest, Ms Robiou accepted that she had no statistical evidence to support her contention, but was nevertheless aware that there have been detentions at every protest in Burma. She observed that the Burmese government was very keen to give the impression to the international community that there are no political prisoners and that they are not arresting political activists. 33. Ms Robiou was then invited to comment on a report authored by Amnesty International dated23 May 2012 , in which it was stated that the government had released 650 political prisoners between May 2011 and January 2012, and that many of these persons had told Amnesty International [during 2 visits by the organisation to Burma] that they had been relatively free to resume their political activity without harassment or intimidation. She stated in reply that she did not agree with Amnesty International’s statement, observing that if activists were free to pursue activities in Burma then AAPP would be in Burma. 34. In response to questions from the Tribunal Ms Robiou confirmed that AAPP had been founded in 2000 and is funded primarily by the Open Society Foundation, National Endowment for Democracy, the Netherlands Embassy in Bangkok and the OAK Foundation. Of the ten people working the headquarters, 4 had returned to Burma in the past twelve months; 1 permanently and 3 on visits. Of the 3 persons who had returned on a visit, 2 had been at the invitation of the government. Each of three persons believed their telephones had been tapped and heard the sound of typewriters in the background when making a telephone call. 35. Ms Robiou further confirmed that she was aware of 2 political prisoners who had been freed and then re-arrested – U Gambira and Nay Myo Zin, a charity worker who had been arrested twice since being released on October 2011. 36. In re-examination Ms Robiou observed that an individual could contact the Ministry of Home Affairs in order to ascertain whether they were on the blacklist, although it was unclear how responsive they would be to such a request. Doing so would not offer any protection however. Dr Zarni’s written evidence 37. Dr Zarni’s initial report is dated16 November 2011 . He comes from a large military clan in Burma, having been admitted to the Officer Training Corp and has done extensive research on military affairs in the past 23 years. He is a founder of the Free Burma Coalition and campaigned for the improvement of human rights conditions in Burma from 1995 to 2004 internationally. 38. In his report he acknowledges that the appellant was not found to have been politically active in Burma and the focus of his report is therefore on the consequences of his activities in the UK [10]. 39. Commenting on recent developments in Burma he observes: a. That some critics and dissidents had begun to return and that the government was considering the release of jailed political activists at home. b. On25 August 2011 UN Special Envoy on Human Rights in Burma Professor Quintana said that he welcomed some positive developments but noted that there is still serious and ongoing human rights concerns that need to be addressed particularly the continuing detention of a large number of prisoners of conscience and the continuing allegations of torture and ill-treatment during interrogation. c. UN Secretary General Ban Ki-Moon has said that a real opportunity for progress exists but the government must step up its efforts for reform if it is to bring about an inclusive – and irreversible – transition. In particular the authorities must cultivate improved dialogue with all political actors and release all the many political prisoners. d. The Prime Minister of Myanmar has referred in his statement to the General Assembly that an early amnesty is being considered. [15] 40. Dr Zarni refers to the latest report by the Assistance Association for Political Prisoners in Burma published in 2010 which says that there are more than 2,000 people behind bars without access of guarantees to due process. There are 42 prisons in Burma, 109 labour camps and an unknown number of interrogation centres, and the deplorable conditions in these places are well-documented. 41. Dr Zarni considers also that: a. Jailed political activists have no recourse to law, the single biggest obstacle in effective intervention of human rights being the absence of an independent judiciary. b. there is a difference between the role and function for law in Burma and any norm based judicial systems [19] this being characterised as the “un-Rule of law” which is differentiated from the rule of law in depending upon uncertainty rather than certainty by which citizens can organise their lives and arbitrariness rather than consistency as to how state institutions and personnel operate and it is concerned with the denial with rights in the absence of norms upon which rights can even be nominally established. 42. Dr Zarni notes that there are signs that as at November 2011, Burma, may be at the point where changes become possible although: a. expectations that Burma’s human rights conditions were going to improve significantly once the Burmese government declared an amnesty on12 October 2011 turned out to be misplaced, given the very low number of prisoners of conscience that were released; b. it has been argued that the political detainees were like hostages, being released at a trickle in exchange for deals being struck with various parties at home and abroad; c. There is a significant disparity between reality on the ground regarding human rights and governmental conditions and the officially stated aspiration of goals which the Burmese military government claims to be striving towards and which the UN and international human rights organisations are urging the Burmese government to move. 43. The Burmese military rulers’ attitudes are comprehensible only through consideration of their mental/psychological make-up whereby: a. Unquestioning loyalty and compliance from subordinates is required at all levels of the military; any disagreement and difference expressed by subordinates is seen as a sign of disloyalty and disorder and subordination; b. Military leaders at all levels do not tolerate any form of dissent; under military rule military leaders have come to accept the same from the non-military sections of society and government with a zero tolerance towards public political opposition and defiance pervading all aspects of the state; c. Citizens’ political protests are seen as unlawful acts of individual defiance and disloyalty to the nation, the official expression used in reference to Burmese opposition activists being “external destructive elements and lackeys of the alien powers”; d. No material distinction or difference is made between organisers of protests and those who merely join the anti-government discrimination demonstrations either at home or abroad. 44. Dr Zarni considered that it would be difficult for the military government to assess commitment to the opposition’s cause on the part of those Burmese nationals who turn up to demonstrate abroad outside diplomatic missions, but that there are certainly informers both within the country and outside who trade information for different purposes and the regime relies heavily on human intelligence in monitoring opposition of the activists inside and outside the country. 45. A person who had had contact with the opposition in exile would, on return, be likely to be interrogated about those contacts and torture is the norm during interrogation period when confessions are forcibly extracted. What would constitute real commitment can only be established over a period of time in assessing whether an activist has a real commitment to democratisation or the stamina to stick with the opposition’s cause. 46. Protests by overseas communities in front of diplomatic posts do not immediately threaten to destabilise or disrupt the military controlled social order inside Burma, but because these protest demonstrations are usually headline news, the impact amongst the Burmese public is significant and for that reason the government views transmitted news of protests in front of its embassies abroad and other direct and practical instigations as having a contagious impact. Exiled activists are commonly known amongst the Burmese public as well as the government to incite popular protests and mass revolt within Burma. 47. Dr Zarni considers that Burmese military rulers attach disproportionate significance to peaceful protests by ex-patriots, exiles and émigrés in front of Burmese Embassies around the world, a significance attached to this being comprehensible only through consideration of the mental/psychological make-up of military leadership, in particular “loss of face”
“11. The Special Rapporteur is concerned about the ongoing practice of torture in places of detention in Myanmar. During his interviews with displaced persons in the camps in Nyitkyina and Waingmaw and prisoners in Myitkyina prison he received allegations of arbitrary arrest and torture during interrogation by the military of Kachin men accused of belonging to the Kachin Independence Army (KIA). In Rakhine State, he received allegations that Muslim prisoners detained in Buthidaung prison after last June and October’s violence had been tortured and beaten to death. 12. While in Yangon, the Special Rapporteur met with the sister of Myint Swe who died following torture during interrogation whilst in police custody. His case is consistent with other information the Special Rapporteur has continued to receive on professionalised torture techniques being used by police officers on suspects of violent crime with the aim of extracting confessions. He highlights that addressing human rights violations through the criminal justice system is necessary to combat the culture of impunity that exists for acts of torture in police stations, prisons and in other places of detention, particularly during the interrogation of suspects. In addition he encourages the government to initiate human rights training programs for police officers and prison officials, and to develop the capacity of other relevant public officials, including judges and doctors, who can intervene on suspected cases of torture. 13. The Special Rapporteur acknowledges the steps being taken by the Government to address the ongoing practice of torture in Myanmar. He commends the Government on its commitment last November to allow the International Committee of the Red Cross (ICRC) to resume prison visits in order to assess conditions and facilitate access to healthcare, and notes the subsequent successful completion of the first pilot visit in January …” e. In respect of freedom of expression, Professor Quintana notes that in 2012 no journalists were jailed in Myanmar and the country rose eighteen places to 151 out of 179 states in the 2013 World Press Freedom Index. He was concerned that public broadcast news remains heavily censored, but welcomes the increased freedom for internet users, with internet café owners no longer receiving police visits and no longer required to keep logs of the computers used by its customers. He expresses concern, however, about the decision of Parliament on 17 January to investigate the online activities of a blogger who had criticised MPs’ amendments to the constitutional tribunal law. f. In respect of freedom of expression, Professor Quintana notes that in 2012 no journalists were jailed in Myanmar and the country rose eighteen places to 151 out of 179 states in the 2013 World Press Freedom Index. He was concerned that public broadcast news remains heavily censored, but welcomes the increased freedom for internet users, with internet café owners no longer receiving police visits and no longer required to keep logs of the computers used by its customers. He expresses concern, however, about the decision of Parliament on 17 January to investigate the online activities of a blogger who had criticised MPs’ amendments to the constitutional tribunal law. g. Concerns are expressed over the extent to which the right to freedom of assembly and association is being respected because of shortfalls in the 2011 Peaceful Assembly and Peaceful Procession Act and its associated bylaw as well as the problematic implementation and enforcement of this legislation by state officials and police officers on the ground. This is reflected in the ongoing arrest and detention of people involved in peaceful protests. If a peaceful assembly or procession takes place without a permit the criminal code provides for punishment of up to one year imprisonment and a fine of 30,000 kyat. Furthermore, he observes the act is being used in conjunction with other laws under which the failure to gain permission to hold an assembly can result in two years’ imprisonment of the criminal code and five years sentence under 1988 law relating to the formation of organisations for people who participate in groups that in, broad and vague terms: “… attempt, instigate, incite, abet or commit acts that may in any way disrupt law and order, peace and tranquillity, or safe and secure communications; [or] affect or disrupt the regularity of state machinery.”
“82. Continuing reforms in Myanmar are resulting in ongoing improvements to the human rights situation. Important changes have taken place, such as legislative reform, but sometimes not to the point where international human rights standards are met. 83. There remains a large gap between reform at the top and implementation on the ground. While acknowledging that it will take time to close this gap, this should not be used as an excuse to avoid taking necessary steps, such as the capacity development of police, army, judges and lawyers. 84. While the process of reform is continuing in the right direction, there are significant human rights shortcomings that remain unaddressed, such as discrimination against the Rohingya in Rakhine State and the ongoing human rights violations in relation to the conflict in Kachin State. The Special Rapporteur believes that now is the time to address these shortcomings before they become further entrenched and destabilise the reform process. 85. The Special Rapporteur believes the continuing existence of his mandate is vital to highlight these concerns and support the Government in addressing them. It helps to remind the international community of the importance of prioritising human rights in its bilateral relations with Myanmar. And ultimately, it provides a positive contribution to improving the situation of human rights for the people in Myanmar.”