The Child Law includes provisions protecting the civil rights and freedoms of children; however, these rights are subject to important qualifications which essentially undermine their efficacy. For example, Section 14 of the Child Law states: "Every child shall, irrespective of race, religion, status, culture, birth or sex be (a) equal before the law and (b) given equal opportunities." But this is subject to Article 154(c) of the constitution which states that only "Children born of citizens shall enjoy equal rights."
Further, Section 15 of the Child Law states that every child:
(a) has the right to freedom of expression in accordance with the law;
(b) has the right to freedom of thought and conscience and to freely profess any religion
(c) has the right to participate in organizations relating to the child, social organizations or religious organizations permitted under the law.
Despite these provisions, the Child Law is subject to all existing laws, and in Burma there is a wealth of laws restricting the civil rights of all citizens. The rights of the child to freedom of expression and association are subject to a number of other existing laws, including the Unlawful Association Act (1957); Printers and Publishers Registration Law of 1962 and the 1989 law amending it; the 1985 Video Law; the Wireless and Telegraphy Act of 1985 (amended in October 1996); the 1950 Emergency Provisions Act; and the June 1996 Law to Protect the Stable,Peaceful and Systematic Transfer of State Responsibility and the Successful Implementation of National Convention Tasks Free from Disruption and Opposition. Each of these laws have been denounced as being contrary to international norms by the U.N. Special Rapporteurs to Burma and by human rights organizations. 17
Freedom from Torture, Cruel, Inhuman or Degrading Treatment or Punishment
Given that torture has been reported by the Special Rapporteur to Burma as being "regularly employed against civilians living in insurgency areas, against porters serving the army and in working sites where forced labour is practiced," and that the government at first omitted Article 37 of the CRC when it was ratified in 1993, particular attention must be paid to the elimination of all forms of torture, cruel, inhuman and degrading punishment of children. The treatment of children in insurgency areas is discussed below, but Human Rights Watch/Asia is also very concerned about the treatment of children in detention centers and jails.
Because students and young people were at the forefront of the pro-democracy demonstrations in 1988, hundreds were arrested and jailed. In many cases, these children and youths died while under interrogation and their bodies were buried in mass graves, as the Special Rapporteur to Burma noted in his 1993 report.18 There has never been an investigation into any of the deaths which occurred in 1988 and 1989, and many parents are still unaware of the whereabouts of their children. In most cases torture takes place immediately after arrest, when the subject is held in military intelligence centers for interrogation.19 During this period, which can last for up to two weeks, the suspect is held incommunicado, in contravention of international norms.
Despite concerns over the use of torture by Burmese soldiers, military intelligence personnel and police, the Child Law does not explicitly prohibit these acts of violence against children but merely states in Section 37 that a police officer taking action against a child "shall not handcuff the child or tie with a rope." There is also no explicit prohibition against the use of rape as a means of torture by government agents, though this is known to have occurred frequently in ethnic minority areas where girls and young women are taken to work as porters for the military or are otherwise kidnapped and held in army camps overnight where they are repeatedly raped (see below). The omission of prohibitions against torture and rape is unacceptable, and the law should be amended not only to prohibit all forms of torture of children but also to impose the terms of punishment for the perpetrators of such acts.
Sections 30 and 31 of the Child Law address the ethics and discipline of a child and impose a number of duties on a child which include "abiding by the school discipline, work discipline and community discipline; cherishing and preserving the race, language, religion, culture, customs and traditions concerned with him."
Further, Section 65(d) states that whoever willfully mistreats a child, shall, on conviction, be punished with imprisonment for a term which may extend to six months or with a fine of up to Kyats 1000, or with both "with the exception of the type of admonition by a parent, teacher, or a person having the right to control the child, which is for the benefit of the child" (emphasis added). These provisions could be seen as encouraging parents and teachers to use physical punishment, contrary to Article 37 (a) of the convention which protects children from assaults on their dignity and physical integrity.
The Committee on the Rights of the Child has condemned corporal punishment in institutions and at home during its thematic debate held on November 13, 1995 to address the issue of juvenile justice and also during consideration of state party reports. According to the committee, the use of physical punishment as a sentence of the courts or as a punishment within institutions is not compatible with the convention.
Freedom of Expression
Existing censorship laws in Burma are extremely restrictive, and in the past year they have become more so. The SLORC has enacted or amended five laws relating to the freedom of expression. Under the 1962 Printers and Publishers Registration Law, all publications and other media materials (including videos and films) must be assessed by the Press Scrutiny Board before publication or release. This law was amended in 1992 to increase the fines and prison sentences which could be handed to those found guilty of breaking the law to a maximum of seven years imprisonment and/or a fine of 30,000 Kyats ($300)- this is thirty times the fine and six and half years more than the custodial sentence which can be imposed on those found guilty of maltreating a child. The Press Scrutiny Board reads every novel or book of short stories before it can be published, though the publisher has to furnish the board with a number of copies. Even after passing the censor in draft form, a book must be resubmitted after publication before it can be distributed, and it is not unusual for books to have pages ripped out or entire passages inked over before distribution is permitted. In some cases, entire books have been scrapped, even though they passed the first round. Magazines and periodicals are scrutinized by the board only after printing, so that editors and authors are obliged to operate strict self-censorship. As a result of these methods, the publication of books and magazines can be both extremely costly and risky, and few publishers risk printing anything that may inadvertently arouse the suspicions of the board. The publication of children's books and periodicals, which the CRC recognize as being an essential to assisting children's development, is thus discouraged.
In addition to censoring domestic publications, the import of foreign newspapers and books is strictly controlled and those foreign magazines and publications that find their way to the street markets in Rangoon have politically sensitive articles removed. Scores of writers and artists have been arrested and given long sentences for breaching the 1962 law, including Ma Thida, who was arrested in 1993 and sentenced to twenty years in jail for having distributed anti-government leaflets. Ma Thida is a medical doctor and was twenty-seven years old at the time of her arrest.20 Other laws also restrict freedom of expression, such as the 1985 Wireless and Telegraphy Act, which was amended in October 1995 to increase the punishment for persons possessing facsimile machines without a license to three years in prison or fine of 30,000 Kyats ($300). In 1996 the law was further amended to include the need for licenses for all computer modems. This law may prove to be particularly harmful to the education of children, as it is not yet clear how difficult it will be to acquire a license and what arrangements will be made for educational institutions in which more than one person has access to the communications hardware.
Even while enacting these draconian laws, the SLORC continues to state that it is "committed to the principles contained in the charter of the United Nations and the Universal Declaration of Human Rights" but qualifies this with the often heard disclaimer that "our concept of human rights is based on our values, traditions and culture."21 In regard to freedom of expression, the government's interpretation of "Burmese values" extends to forbidding "anyone speaking, writing, printing, publishing falsities, insulting, organizing, assembling and instigating that can cause the people to get misinformed or confused about the national problems, discrediting the government to turn people against it, and to cause upheavals."22 This is also expressed in the June 1996 Law to Protect the Stable,Peaceful and Systematic Transfer of State Responsibility and the Successful Implementation of National Convention Tasks Free from Disruption and Opposition, which carries a maximum sentence of twenty years in prison with hard labor for anyone found guilty of making an oral or written statement or disseminating any papers in order to "undermine the stability of the State, community peace and tranquility and prevalence of law and order" or "undermine, belittle and make people misunderstand the functions carried out by the National Convention." Since this law was promulgated, nine students were arrested on September 21, 1996 for distributing leaflets outside Daw San Suu Kyi's house on charges of "disrupting the nation's peace and tranquility."23 It is not known what sentences they received.
Many other children and youths have been arrested and prosecuted under existing laws for exercising their right to freedom of expression. In December 1991, Amnesty International reported that a fourteen-year-old boy, Ko Win Thein, was arrested in February 1990 for having put up "anti-government" posters in his high school in North Okalapa, Rangoon. He was sentenced to thirteen years in prison.24 The same report also reported the arrests of nine high school students from Monywa on July 19, 1991. They included Than Zin Hlaing, Soe Win Maung, Kyaw Moe, Htun Ohn, Kyaw Kyaw Lwin, Aung Aung and Aung Naing for similar offenses. Eight others from Mandalay were also arrested for distributing leaflets in the same month: Myo Win Thant, Soe Soe Oo, Kyaw Soe, Lin Lin Zaw, Win Thein, Win Tin, Htun Ohn and Aye Ko. All of these boys were between fourteen and eighteen years old. It is not known if any of these boys have been released. They were all tried by military tribunals in which the defendants were not permitted legal representation or to call witnesses, and there was no right of appeal except to the commander-in-chief of the armed forces. This was in violation of Article 12 of the Convention on the Rights of the Child, in particular 37 (d), which stipulates that "Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action." Although military tribunals have been disbanded,25 none of the children tried by them has been permitted to seek a retrial by a civilian court.
Freedom of Association and Peaceful Assembly
The rights of the child to freedom of association and to freedom of peaceful assembly, enshrined in Article 15 of the convention, are constantly under threat in Burma. As with expression, there are several laws which prohibit peaceful assembly, including SLORC Order 2/88 which makes it an offense for more than five people to gather in a public place. Others prohibit free association, most notably the 1957 Unlawful Associations Act, which provides for a sentence of up to five years for anyone who has been a member, given contributions to, or promoted or assisted any association which "encourages or aids persons to commit an act of violence or intimidation or of which the members habitually commit such acts; or which has been declared unlawful by the President."26
During the uprising in 1988 and in subsequent demonstrations in 1990, 1991 and 1992, hundreds of high school children were arrested for taking part in peaceful political protests, and many of them received long prisonterms under military tribunals. Most had to serve their sentences in adult jails or work camps. More recently, on May 16, 1996 six students from Rangoon university, all under the age of twenty, were arrested for having assisted in the organization of a planned NLD congress. The congress was stopped by the government, which detained for up to five days some 294 NLD elected members of parliament and ordinary party members. The six students, however, remain under arrest, though it is not known if they have been charged or tried. Later in the year, high school students in Rangoon demonstrated, calling for improvements in students' rights and in particular the right to form a student union. The protests were stopped by armed riot police, who in December used water cannons and beatings to disperse the crowds. Over 300 youths were arrested, but most were released after staying overnight on the grounds of a former horse racing track. Others have "disappeared," and it is not known how many may still be held in detention. There were unconfirmed reports of at least two students being seriously injured when large rocks were thrown at the crowd by the riot police, and two journalists, including a Japanese man, were also injured. Since December 10, all institutes of continuing education in Rangoon, Mandalay, Moulmein and Sittwe have been closed, and all students not resident in those cities were ordered to return to their home villages and towns.
While student unions remain prohibited, children and youths are being forced through a variety of measures to join government associations against their will. High school children and university students are threatened with losing their places at school if they do not join the USDA (see above). In other cases, only USDA membership can guarantee access to scarce teaching resources, such as computers and language laboratories. The USDA particularly targets children and youths, with the intention of instilling in them loyalty to the nation and respect for the armed forces, and creating a "patriotic youth force." Within two years of its foundation, the USDA had over 2.5 million members, the majority of whom were high school students and their teachers. The USDA has been used by the SLORC to show public support for their policies, as a counterforce to the massive public support which the NLD enjoys. When the NLD walked out of the National Convention in November 1995, the USDA held huge rallies, and at each, the crowds pledged their support for the National Convention. In June 1996, at a time when Daw Aung Suu Kyi's weekly public speeches were drawing crowds of up to 4,000 people outside her house, the USDA again held mass rallies across the country where the membership listened to speeches denouncing her and the NLD. Later in the year the rivalry between the USDA and the NLD took an ugly turn when on November 9, 1996 over 200 USDA members attacked a convoy of cars carrying Daw Aung San Suu Kyi and her deputies. Two days later, the chairman of the SLORC, Sr. Gen. Than Shwe, was reported in the government newspaper as telling senior USDA leaders, "It is the duty of the entire people including USDA members to resolutely crush destructive elements inside and outside the country as the common enemy who are disrupting all the development endeavors with the sole aim of gaining power."27
Unlawful and Arbitrary Interference with a Child's Home
Article 16 of the CRC states that "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence..." There is no acknowledgment of this right in the Child Law, and it is a right which is frequently violated by the Burmese government. One of the most common violations is the forcible relocation of poor families from their homes in Burma's urban centers to "new towns." Generally, the new towns are little more than scrub land or paddy fields confiscated by the government, with no sanitation, water, electricity or other facilities. Since 1988 hundreds of thousands of urban poor have been moved in this way, often in order to "clean up" areas of specific interest to tourists or simply to encourage foreign investment by hiding poor shanty towns outside the city centers. The 1989 relocation of the population of Pagan, a popular tourist destination, is well documented, but as recently as May 1996 the entire population of Mrauk-Oo, the ancient capital of Arakan state which once rivaled Amsterdam as a trading center, was forced to abandon homes and livelihoods to make way for the "development" of the city for tourists.
Forced relocations are extremely disruptive to children, and where no provisions are made for their health and shelter in relocation sites, they can also lead to serious illness and death. At the relocation sites, there are no additional schools, and children are often obliged to assist their parents in trying to find work. The vast majority of families who are relocated suffer a dramatic drop in their living standards. In addition to having to find the money to buy the land and build new homes, they also have to pay to commute into the city to find work. NGOs working in the new towns say that there have been massive social problems as a result, with fathers leaving the home to find work and one-parent families becoming increasingly destitute. UNICEF and NGO figures show that in 1995, infant mortality rates and malnutrition levels among children remain extremely high.28
Forced relocations also occur in rural areas where ethnic rebels are active or which have been designated as "brown" areas by the government. See "Children in states of emergency," below.
17 See Yokota, "Report on the Situation of Human Rights in Myanmar" (Geneva: U.N. ECOSOC, E/CN.4/1993/37, February 17, 1993); Lallah, "Report on the Situation..." 1996; Venkateswaran, "Burma: Beyond the Law," Amnesty International, "Myanmar: No Law At All" (London: Amnesty International, ASA 16/11/93, November 1992); Human Rights Watch/Asia, "Burma: Entrenchment or Reform?" A Human Rights Watch Report, vol. 7, no.10 (c) (July 1996).
18 See Yokota, "Report on the Situation..." p. 18.
19 See Asia Watch "Human Rights in Burma" (New York: Human Rights Watch, May 1990); Amnesty International "No Law At All," and all reports of the Special Rapporteur to Burma.
20 See Martin Smith, State of Fear: Censorship in Burma (London: Article 19, December 1991) and "Censorship Prevails: Political Deadlock and Economic Transition in Burma" (London: Article 19, March 1995).
21 U Win Mra, Permanent Representative to the United Nations, October 27, 1996
22 Kyaw Myint Naing (believed to be the pen-name of a senior military officer), "Are the So-called Opposition Elements in Myanmar For or Against Democracy?" The New Light of Myanmar (Rangoon), November 8, 1996.
23 The New Light of Myanmar, (Rangoon) September 22, 1996, quoted in "Junta Arrests Nine Youths Distributing Pamphlets" The Nation (Bangkok) September 23, 1996.
24 Amnesty International, "Union of Myanmar: Arrests and Trials of Political Prisoners," (London: Amnesty International, ASA 16/10/91, September 1991).
25 SLORC Order 12/92 of September 26, 1992, Revised Order 2/89 which had established military tribunals.
26 The government periodically publishes lists of unlawful associations, though this is done so irregularly that it is not always possible to know the legal status of any particular group. Thus, while some of the ethnic rebel armies which have cease-fires with the government have been officially declared no longer unlawful, most have not. In addition, it is interesting to note that if this law was rigorously applied, then the government-created USDA, whose members were found to have committed an act of violence against Daw Aung San Suu Kyi's motorcade, should be investigated and possibly made unlawful.
27 "SLORC Chief Incites Mobs to Crush Opponents of Junta," The Nation (Bangkok), November 13, 1996.
28 Personal communications and UNICEF, Women and Children in Myanmar, (Rangoon: UNICEF), 1995.