A/HRC/39/CRP.2 (b) State of emergency 685. On 10 June 2012, President Thein Sein reinforced the curfew orders by declaring a state of emergency in Rakhine State under section 412(a) of the Constitution.1485 He stated that this was to “bring about security and peace and stability for the people immediately”. In his declaration, the President invoked section 413(a) of the Constitution, the power to “obtain the assistance of the Defence Services”. According to section 414(b), when declaring a state of emergency, the President may, if necessary, restrict or suspend one or more fundamental rights of the citizens residing in the areas where the state of emergency is in operation. However, the ordinance adopted by the President did not invoke this power. 686. The state of emergency in Rakhine State remained in force for nearly four years. According to international human rights law, a state of emergency can only be invoked in the presence of a “public emergency which threatens the life of the nation” 1486. The Myanmar Government itself did not see the situation in Rakhine State in those terms. On the contrary, in November 2015, at Myanmar’s second Universal Periodic Review (UPR) in the United Nations Human Rights Council, the Permanent Representative of Myanmar stated that there had been no inter-communal violence in Rakhine State since 2012, and that “peace and stability in Rakhine State has been restored”. He highlighted that communities in Buthidaung and Maungdaw were now “engaging in inter-communal trade and business” with their children attending school together.1487 687. The Mission considers that the prevailing situation in Rakhine State was not “threatening the life of the nation” and that the continuance of the state of emergency and curfew orders was unjustified. Instead, these measures were a means to restrict the lives of the Rohingya and the Kaman through their discriminatory application and to provide more powers to the Tatmadaw. President Thein Sein lifted the state of emergency on 28 March 2016, shortly before handing over power to the newly appointed NLD-led government.1488 (c) Inquiry Commission on Sectarian Violence in Rakhine State 688. On 17 August 2012, the President established the Inquiry Commission on Sectarian Violence in Rakhine State”.1489 While it was a positive step that the President set up the Commission, the composition of the Commission as well as the way it executed its mandate were fundamentally flawed. The Commission was initially composed of 27 members, including six Muslims, but did not include a single Rohingya. Two out of the six Muslim members were expelled from the Commission1490, reportedly because of their overly independent stand on some issues.1491 The Commission also included members who held strong public anti-Rohingya stands, such as Dr. Aye Maung, the Chair of the Rakhine Nationalities Democratic Party (RNDP), and U Ko Ko Gyi, one of the leaders of the 88 1485 1486 1487 1488 1489 1490 1491 Republic of the Union of Myanmar, President Office, Ordinance No. 1/2012 (10 June 2012), available at: http://www.myanmargeneva.org/pressrelease/2.%20Preventive%20measures%20and%20actions%20t aken%20by%20the%20government.pdf . See page 10 United Nations Human Rights Committee: General Comment No. 29: Derogations during a State of Emergency (31 August 2001), CCPR/C/21/Rev.1/Add.11. The Human Rights Committee specified that, “not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation”. The declaration of the state of emergency may also be viewed as unconstitutional since it did not specify its duration, as required by section 414(a) of the Constitution. Statement by Mr. Maung Wai, Permanent Representative of the Union of Myanmar to the United Nations and other international organizations in Geneva, “Situation of Rakhine State and Cooperation with UNSG’s Special Advisor” (6 November 2015), available at: https://extranet.ohchr.org/sites/upr/Sessions/23session/Myanmar/Statements/103.1_Closing%20Rema rka%20-%201%20-%20Situation%20of%20Rakhine%20State_UPR_Myanmar.pdf Announcement on the lifting of the state of emergency available at: http://www.moi.gov.mm/moi:eng/?q=news/29/03/2016/id-6792 The New Light of Myanmar, “Investigation Commission formed” (18 August 2012). Haji U Nyunt Maung Shein and U Tin Maung Than. DI-077; K-240. 161