A/HRC/39/CRP.2 to the achievement of that objective. 75 States may, for example, narrowly draw a distinction with respect to political rights (such as the right to vote or stand for election) and freedom of movement (limited to those who are “lawfully within the territory of a State”). 76 Any other distinction between citizens and non-citizens is in violation of international human rights law.77 Importantly, any limitation to the enjoyment of human rights to nationals must meet stringent conditions to comply with the principle of non-discrimination.78 The denial of human rights cannot be based on an arbitrary deprivation of nationality. 69. Second, the Constitution of Myanmar includes significant limitations on several fundamental rights, often on vague or impermissible grounds. Section 34, for example, provides for the freedom of religion for every “citizen” (freedom of conscience and the right to freely profess and practise religion), but subjects this to “public order, morality or health and to the other provisions of this Constitution”. Section 360(b) then expressly states that the freedom of religious practice shall not prevent the State from “enacting law for the purpose of public welfare and reform”. Similarly, the freedoms of expression, peaceful assembly and association are guaranteed for every “citizen” but only if “not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquillity or public order and morality”79 and artistic expression is guaranteed if “not detrimental to national solidarity”.80 Whereas international human rights law permits limitations on certain human rights, they must be determined by law, be necessary in a democratic society and meet the strict tests of necessity and proportionality. Broad and vague terms such as “public welfare and reform”, “tranquillity” and “solidarity” open the door for abuse. (b) Penal Code 70. Myanmar’s Penal Code criminalizes certain acts that could constitute violations or abuses of human rights. Such provisions include those concerning homicide and murder (section 299 and following), torture (section 330-331), rape (section 375 and following), kidnapping, abduction, slavery, and forced labour (section 359 and following), and the defiling of places of worship (section 299 and following). However, the Penal Code dates from 1891 and has seen minimal amendments since then. Several of its provisions are too narrow and inconsistent with international norms and standards81, and others are too broad and used oppressively. III. Context A. Military domination in politics 1. History of military rule 71. Myanmar’s political history has been heavily dominated by an all-powerful military, known as the Myanmar “Tatmadaw”, which has ruled the country for most of its existence. Myanmar (then still Burma) was already under heavy military influence during the 1950s but it was a parliamentary democracy until the military coup of General Ne Win in 1962. General Ne Win argued that a military take-over was necessary to protect the territorial integrity of 75 76 77 78 79 80 81 D. Weissbrodt, The Human Rights of Non-Citizens (Oxford, Oxford University Press, 2008), p. 45 (and references there); OHCHR, The Rights of Non-Citizens (New York and Geneva, United Nations, 2006), p. 7. See ICCPR, arts. 12(1) and 25. See also A/HRC/19/43 and E/CN.4/Sub.2/2003/23 See A/HRC/19/43, para. 4; United Nations Human Rights Committee, “CCPR General Comment No. 15: The Position of Aliens Under the Covenant”, paras. 2 and 7. Constitution of Myanmar, Section 354. Constitution of Myanmar, Section 365. E.g. on rape/sexual violence and on torture and ill-treatment. See Chapter X. Impunity and accountability. 21