Burma’s Political Prisoners and U.S. Sanctions
Michael F. Martin
Acting Section Research Manager/Specialist in Asian Affairs
July 5October 19, 2012
Congressional Research Service
7-5700
www.crs.gov
R42363
CRS Report for Congress
Prepared for Members and Committees of Congress
Burma’s Political Prisoners and U.S. Sanctions
Summary
The installation of the Union Government in 2011 and the undertaking of initial reforms have
raised the prospects for the resumption of a democratically elected civilian government in Burma
after five decades of military rule. The release of Burma’s political prisoners has a central role in
U.S. policy and Burma’s political future. Many of the U.S. sanctions on Burma were
implemented after Burma’s ruling military junta suppressed protests and detained many political
prisoners. In addition, the removal of many of the existing U.S. sanctions requires the release of
all political prisoners in Burma.
Similarly, hopes for a democratic government in Burma—as well as national reconciliation—
would depend on the release of prisoners associated with the country’s ethnic groups. Several
ethnic-based political parties have stated they will not participate in parliamentary elections until
their members are released from custody. Also, prospects for stable ceasefires and lasting peace
with various ethnic-based militias will probablymay require the release of their members currently in
detention.
Estimates of how many political prisoners are being detained in Burma vary greatly. In November
2011, President Thein Sein stated that there are no political prisoners in Burma because everyone
in detention had committed a crime. Home Affairs Minister Lieutenant General Ko Ko told the
press in January 2012 that 128 dissidents remain in detention. According to the Assistance
Association for Political Prisoners (Burma), or AAPP(B), a non-profit organization dedicated to
identifying and locating political prisoners in Burma, the Burmese government may have as many
as 914 political prisoners in its 42 prisons and 109 labor camps scattered across the country.
Differences in the estimates of the number of political prisoners in Burma can be attributed to two
main factors. First, Burma’s prison and judicial system is not very transparent, making it difficult
to to
obtain accurate information. Second, there is no consensus on the definition of a “political
prisoner.” Some limit the definition of “political prisoner” to “prisoners of conscience” (people
who are detained for peaceful political opposition). The AAPP(B) includes “anyone who is
arrested because of his or her perceived or real involvement in or supporting role in opposition
movements with peaceful or resistance means.”
Since his appointment in April 2011, President Thein Sein has granted amnesty to selected
prisoners on fivesix separate occasions. In total, the Union Government has released 28,324838
prisoners, of which 657745 were political prisoners, according to the AAPP(B).
The State Department is actively discussing the political prisoner issue—including the definition
of political prisoners—with the Burmese government, opposition political parties, and
representatives of some ethnic groups. In these discussions, U.S. officials emphasize the
importance of the release of all political prisoners for the removal of U.S. sanctions on Burma.
The status of Burma’s political prisoners is likely to figure prominently in any congressional
consideration of U.S. policy in Burma. Congress may choose to examine the political prisoner
issue in Burma either separately or as part of a broader review of U.S. policy towards Burma.
Congress may also consider taking up legislation—on its own or in response to a request from the
Obama Administration—to amend, modify, or remove some of the existing sanctions on Burma.
This report will be updated as circumstances require.
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Burma’s Political Prisoners and U.S. Sanctions
Contents
Introduction...................................................................................................................................... 1
Defining Political Prisoners ............................................................................................................. 2
Current Estimates............................................................................................................................. 4
Prisoner Releases ............................................................................................................................. 65
Political Prisoners, Parliamentary Elections and National Reconciliation ...................................... 9
U.S. Sanctions and Political Prisoners........................................................................................... 10
U.S. Efforts Regarding Political Prisoners .................................................................................... 12
Issues for Congress ........................................................................................................................ 13
Tables
Table 1. Burma’s Announced Prisoner Releases................................................................................................. 8
Table 2. Specified Conditions for the Removal of U.S. Sanctions on Burma ............................... 11
Contacts
Author Contact Information........................................................................................................... 14
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Burma’s Political Prisoners and U.S. Sanctions
Introduction
On March 30, 2011, Burma’s ruling military junta, the State Peace and Development Council
(SPDC), formally transferred power to a quasi-civilian parliament, ending 50 years of military
rule.1 The new Burmese government, headed by President Thein Sein, soon embarked on a series
of political reforms ostensibly designed to continue the nation’s transformation to an elected
democracy under the rule of law.2 These changes have initiated serious discussion within the
Obama Administration and Congress regarding if and when to consider the relaxation or removal
of sanctions currently being imposed on Burma.3
No single issue may play a more pivotal role in Burma’s possible transition to a free and
democratic country than the release of its political prisoners. Several opposition parties have
stated that they will not participate in parliamentary elections or hold discussions on national
reconciliation until their members are unconditionally freed from detention. The status of
Burma’s political prisoners is also a critical issue for possible changes in U.S. policy. The
removal of many of the U.S. sanctions on Burma is contingent on certain conditions, including
the release of all political prisoners.
Achieving a common understanding of Burma’s political prisoner problem is critical for that
country’s future political and economic development. U.S. economic sanctions that may have
limited Burma’s economic performance will remain in place until all political prisoners have been
freed. Fully free and fair elections cannot be held in Burma without the participation of political
parties who await the release from custody of their members. Similarly, important ethnic groups
are unlikely to discuss terms for national reconciliation until their leaders are freed from jail.
At present, there is no consensus on how many political prisoners there are in Burma. Estimates
vary from a fewcouple hundred to over 900700 political detainees. In addition, reports of new political
prisoners being arrested and detained periodically appear in the press. One major reason for the
discrepancy is the lack of transparency of the records of Burma’s 42 prisons and 109 labor camps.
Another major cause for the large variation in the estimates is the use of different definitions of
whom to include as political prisoners.
President Thein Sein’s suspension of the sentences of 651 prisoners—including 302 political
prisoners—on January 13, 2012, raised the issue of Burma’s political prisoners in the
international media for the second time in two weeks.4 Two weeks before, on January 2, 2012,
President Thein Sein issued Order No. 1/2012, which resulted in the release of 6,656 prisoners,
but only 34 political prisoners, after months of speculation about a possible large scale release of
political prisoners prior to parliamentary by-elections to be held on April 1, 2012.5
1
The formal announcement—Notification No. 5/2011—was published in the government-run newspaper, the New
Light of Myanmar, on March 31, 2011.
2
For more about Burma’s transition from military rule and its recent political reforms, see CRS Report R41971, U.S.
Policy Towards Burma: Issues for the 112th Congress, by Michael F. Martin and Derek E. Mix.
3
For a summary of the existing sanctions on Burma and their history, see CRS Report R41336, U.S. Sanctions on
Burma, by Michael F. Martin.
4
“Amnesty Granted to 651 Male and Female Prisoners in Accordance with Section 401, Subsection (1) of Code of
Criminal Procedure Aimed at Enabling Them to Participate in National Reconciliation and Political Processes,” New
Light of Myanmar, January 13, 2012.
5
“President Grants Amnesty,” New Light of Myanmar, January 3, 2012. For more about the parliamentary by-election,
(continued...)
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The importance of political prisoners for U.S. policy was underlined by the U.S. response to the
two January prisoner releases. On the same day as the January 13 prisoner release, Secretary
Clinton announced plans to resume the exchange of ambassadors with Burma for the first time in
20 years, citing the recent releases of political prisoners as one reason for the decision.6 By
contrast, following the January 2 prisoner release, the State Department issued a press statement
in honor of Burma’s 64th independence day (January 4) repeating its “call for the release of all
political prisoners, a halt to hostilities in ethnic areas and an inclusive dialogue with ethnic
minorities toward national reconciliation, space for all political parties to freely compete in April
1 by-elections, and the full implementation of legislation to protect universal freedoms of
expression, assembly, and association.”7 The issue of the continued detention of political
prisoners was raised by Deputy Secretary of State William Burns during his October 18, 2012,
meetings with senior Burmese officials, including President Thein Sein.
State Department officials have held talks with senior officials of the Burmese government,
representatives of Burma’s leading opposition parties, and major ethnic groups in an effort to
move towards a shared understanding of the scope of the political prisoner situation in Burma.
Despite recent public denials by the Burmese government that it is detaining political prisoners,
senior Burmese officials have reportedly acknowledged the existence of political prisoners in
meetings with U.S. officials. However, significant differences remain in the definitions being
used and, by extension, the estimates of the number of political prisoners in Burma.
Defining Political Prisoners
OneAs noted above, one major factor complicating the determination of the number of political
prisoners in Burma is
a lack of agreement on the definition of a political prisoner. While the
concept of political
prisoner—a person who is detained by authorities principally for her or his
political opinions
rather than the commission of a crime—has a long history, there is no
international standard for
defining political prisoners. Prisoners detained for political reasons are
afforded some protection
by international agreements such as the Universal Declaration of
Human Rights and the
International Covenant on Civil and Political Rights. The State
Department has a general
definition of political prisoner that it uses, but the Burmese government
and other interested
parties have their own, and differing definitions.
For Burma, one of the more critical issues in defining political prisoners is whether or not to
include individuals who have been detained for their alleged association with Burma’s ethnicbased militias or their associated political parties. Because these militias have been periodically
involved in armed conflict with the Burmese military, some analysts exclude detainees allegedly
associated with the militias from their estimates of Burma’s political prisoners. In addition,
certain groups being detained or subjected to serious oppression by the Burmese government or
officials may also be considered “political prisoners.”
The Assistance Association for Political Prisoners (Burma), or AAPP(B), an independent
organization founded in 2000 by ex-political prisoners, and Human Rights Watch (HRW) use a
relatively broad definition of political prisoners. The AAPP(B) defines a political prisoner as
“anyone who is arrested because of his or her perceived or real involvement in or supporting role
(...continued)
see CRS Report R42438, Burma’s April Parliamentary By-Elections, by Michael F. Martin.
6
Department of State, “Remarks on Burma,” press release, January 13, 2012.
7
Department of State, “Burma’s Independence Day,” press release, January 3, 2012.
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relatively broad definition of political prisoners. The AAPP(B) defines a political prisoner as
“anyone who is arrested because of his or her perceived or real involvement in or supporting role
in opposition movements with peaceful or resistance means.”8 Other groups, such as Amnesty
International (AI) and the International Crisis Group (ICG), seemingly prefer a narrower
definition that only includes so-called “prisoners of conscience”—people who are detained for
peaceful political opposition. According to one source, the Burmese government is restricting the
definition of political prisoners to “prisoners of conscience.”9
The State Department’s Bureau of Democracy, Human Rights, and Labor considers someone a
political prisoner if:
1. the person is incarcerated in accordance with a law that is, on its face,
illegitimate; the law may be illegitimate if the defined offense either
impermissibly restricts the exercise of a human right; or is based on race,
religion, nationality, political opinion, or membership in a particular group;
2. the person is incarcerated pursuant to a law that is on its face legitimate, where
the incarceration is based on false charges where the underlying motivation is
based on race, religion, nationality, political opinion, or membership in a
particular group; or
3. the person is incarcerated for politically motivated acts, pursuant to a law that is
on its face legitimate, but who receives unduly harsh and disproportionate
treatment or punishment because of race, religion, nationality, political opinion,
or membership in a particular group; this definition generally does not include
those who, regardless of their motivation, have gone beyond advocacy and
dissent to commit acts of violence.10
In applying this definition, the State Department recognizes that being accused of violent acts and
committing violent acts are two different matters, and considers the circumstances pertaining to a
particular person when determining if she or he is to be considered a political prisoner.
The AAPP(B) rejects the limitation of political prisoners to “prisoners of conscience” for several
reasons. First, the AAPP(B) maintains that the Burmese government frequently detains political
dissidents with false allegations that they committed violent or non-political crimes. Restricting
the definition to “prisoners of conscience” would exclude many political prisoners. Second, the
AAPP(B) maintains that the decision to participate in armed resistance against the Burmese
government should be “viewed with the backdrop of violent crimes committed by the state,
particularly against ethnic minorities.”11 In short, the AAPP(B) views armed struggle as a
reasonable form of political opposition given the severity of the violence perpetrated by the
Burmese military and police.
The importance of the distinction between “prisoners of conscience” and a broader definition of
political prisoners was highlighted by the January 13 sentence suspension. Only a few of the
prisoners released on January 13 are associated with the ethnic militias or their affiliated political
parties. Following his release, Min Ko Naing stated many political activists associated with ethnic
8
AAPP(B), “The Recognition of Political Prisoners: Essential to Democratic and National Reconciliation Process,”
press release, November 9, 2011.
9
“Burma Prisoner Amnesty—13 Feb [sic] Releases,” Democratic Voice of Burma, January 13, 2012.
10
Definition provided to CRS by the State Department.
11
AAPP(B), “The Recognition of Political Prisoners: Essential to Democratic and National Reconciliation Process,”
press release, November 9, 2011.
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prisoners released on January 13 are associated with the ethnic militias or their affiliated political
parties. Following his release, Min Ko Naing stated many political activists associated with ethnic
armed groups remained in custody.12 However, Home Affairs Minister Lieutenant General Ko Ko
told reporters that some dissidents remained in detention because they had committed criminal
acts or have links with the Taliban.13
The plight of two segments of Burmese society has also been raised in association with the issue
of political prisoners. First, local Burmese officials are notorious for corruption, and reportedly
frequently use their official power to detain people on falsified charges in order to confiscate the
property or otherwise exact revenge on their opponents. The abuse of power by local officials has
also been portrayed as creating a special group of “political prisoners.” Second, the Burmese
government continues to single out the Rohingyas, a predominately Muslim ethnic minority
residing in northern Rakhine State along the border with Bangladesh, and subject them to more
extensive and invasive political repression. According to the Burmese government, the Rohingyas
are not Burmese citizens, but illegal immigrants from Bangladesh and India. The Rohingyas are
subjected to severe oppression, including restrictions on movement, employment, education, and
marriage. To some observers, the Rohingyas are effectively political prisoners in their own
country.
Current Estimates
Different groups provide widely varying estimates of the number of political prisoners being
detained in Burma. The AAPP(B) published a list of 441280 political detainees whose location has
been verified as of July 4October 12, 2012.14 It also published a list of an additional 473424 political prisoners
prisoners as of September 15, 2012, whose locations have not been verified,15 bringing its total of
possible political prisoners in
Burma to 914704. The AAPP(B) is dedicated to identifying and
locating political prisoners in Burma,
and providing support for the prisoners and their families.16
The Burmese government has given significantly different estimates of the number of political
prisoners in custody. President Thein Sein told reporters in Bali, Indonesia, on November 20,
2011, that there were no political prisoners in Burma and that “all prisoners have broken the
law.”17 His assertion was repeated on February 12, 2012, when Lower House Speaker Shwe
Mann reportedly said, “The remaining political prisoners are those who have committed criminal
activities in this country. Those who are on that list, if they have been involved in terrorist
activities or harmed the public, they will not be included.”18 However, Ko Ko Hlaing, a close
political advisor to President Thein Sein, estimated the number of political prisoners in detention
in Burma at about 600 prior to an October 2011 prisoner amnesty.19 Following the January 13
release, Home Affairs Minister Lieutenant General Ko Ko told the press that 302 of the 651
people released were “prisoners of conscience,” and that 128 dissidents remain in detention.20
12
“Burma’s Remaining Jailed Dissidents,” Irrawaddy, January 17, 2012.
Aye Aye Win, “Praise for Myanmar Release of Political Prisoners,” Associated Press, January 15, 2012.
14
The complete list of names is available online at http://www.aappb.org/Updated_Confirmed_PP_list_1Updated__PP_list.html.
15
The complete list of names is available online at http://www.aappb.org/Updated_To_Confirm_PP_list_1.html.
16
For more about the AAPP(B), see http://www.aappb.org/index.html.
17
“Myanmar President Insists No Political Prisoners in Jails,” Asia-Pacific News, November 20, 2011.
18
Martin Petty, “Myanmar By-elections Vital for EU Sanctions Move—Official,” Reuters, February 13, 2012.
19
“Only 600 Political Prisoners in Burma; President’s Advisor,” Irrawaddy, October 18, 2011.
20
“Burma’s Remaining Jailed Dissidents,” Irrawaddy, January 17, 2012.
13
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release, Home Affairs Minister Lieutenant General Ko Ko told the press that 302 of the 651
people released were “prisoners of conscience,” and that 128 dissidents remain in detention.20
Other interested organizations in Burma also have released estimates of the number of political
prisoners in Burma, but these estimates generally reflect their focus on the detention of their own
members and are not necessarily comprehensive tallies. Just prior to the January 13 release, the
NLD reportedly provided the Burmese government with a list of 604 political prisoners.21 Its
more recent estimate is 270 political prisoners in detention.22 However, the NLD estimates are
reportedly based on information obtained by NLD members, and are not generally viewed as an
exhaustive list of political detainees in Burma.
A group of recently released political prisoners have formed the Organization of Former Political
Prisoners (OFPP)—also known as the Former Political Prisoners Society (FPPS)—and have
surveyed Burma’s prisons and labor camps to compile a list of political prisoners still in
detention. The OFPP has released a list (in Burmese) of 345 political prisoners.23 It is not known
what definition the OFPP used in determining who qualifies as a political prisoner.
Obtaining an accurate and current tally of the number of political prisoners in Burma is
complicated by the lack of transparency of Burma’s judicial and prison system. Burma has 42
prisons and 109 labor camps scattered across the country, with no publicly accessible records of
who is being detained and where they are being detained. To estimate the number of political
prisoners, groups rely on a network of sources to provide information concerning each of the
prisons and labor camps. The AAPP(B), for example, reports that it uses inside networks,
confidential sources, court trial files, recently released prisoners, and families of prisoners to
compile its list of political prisoners.24
Maintaining an accurate tally of the number of political prisoners is also difficult because the
Burmese government and military continue to arrest and detain new political prisoners, or
otherwise infringe on their civil liberties. According to the AAPP(B), since the January prisoner
releases:
•
Some of the recently released political detainees have been re-arrested, including
dissent monk Ashin Gambira (who has since been disrobed), Karen leader Mahn
Nyein Maung, and charity worker Nay Myo Zin;
•
Several formerly detained monks have been prohibited from returning to their
monasteries, some have been reassigned to remote villages; and
•
At least 16 people in Bassein Township were arrested for organizing peaceful
protests against rising beef prices.25
21
“How Many Political Prisoners Remain in Jail?,” Mizzima, January 16, 2012.
the Burmese government
has arrested at least 200 people for political reasons since January 2012, generally without the
submission of formal charges or access to court proceedings. Those people being detained
without charges have generally been either been engaging in public protests (supposedly legalized
by Burma’s new Peaceful Demonstration and Gathering Law, passed in December 2011) or were
suspected of having ties to ethnic resistance groups, particularly the Kachin Independence Army
(KIA).
Prisoner Releases
The most recent prisoner release in Burma occurred on September 17, 2012, shortly before
President Thein Sein was scheduled to visit the United States to speak before the United Nations
General Assembly. The AAPP(B) identified 88 political prisoners among those released.
20
“Burma’s Remaining Jailed Dissidents,” Irrawaddy, January 17, 2012.
“How Many Political Prisoners Remain in Jail?,” Mizzima, January 16, 2012.
22
Confidential source.
23
Confidential source.
24
AAPP(B), “Political Prisoner List is Now 1,572—Location of 918 Confirmed and Documented,” press release,
December 23, 2011.
25
AAPP(B), “Burma: Free and Fair Elections Do Not Mean Civil and Political Rights Exist, Evidenced by Continued
Detention of Political Prisoners,” press release, March 27, 2012.
22
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Prisoner Releases
The most recent prisoner release in Burma occurred on July 3, 2012, when President Thein Sein,
21
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According to some observers, the prisoner release was intended to bolster the chances that the
Obama Administration would announce a further easing of sanctions during President Thein
Sein’s visit to the United States.
On July 3, 2012, President Thein Sein, using authority granted by section 204(a) of Burma’s 2008
Constitution, granted amnesty to 46
domestic prisoners and 34 foreign nationals.2625 The amnesty
was reportedly granted “with a view
of ensuring the stability of the State and making eternal
peace, national reconciliation, enabling
all to participate in the political process; on humanitarian
grounds; and turning them into citizens
who could participate in nation-building endeavours in
whatever way they can after realizing the
magnanimity of the State.”27
Initial estimates of the number of political prisoners included among the 80 prisoners vary from 6
to 22.28 The AAPP(B) has identified 25 political prisoners among these released.29 According to
88 Generation Student leader Kaung Kuang and NLD leader Ko Ko Gyi, at least 20 of the 80
prisoners released on July 3, 2012, are political prisoners.30 Aung San Suu Kyi called for the
immediate release of an estimated 330 political prisoners still in detention.31 magnanimity of the State.”26
On January 13, 2012, President Thein Sein suspended the sentences of 651 prisoners “who were
serving their appropriate prison terms” using authority granted by Section 401 of Burma’s Code
of Criminal Procedure.3227 The prisoner release was done, according to the official announcement,
“with the aim of ensuring stability and eternal peace of the State, fostering national reconciliation,
enabling them [the released prisoners] to participate in the political process, and on humanitarian
grounds.”3328 The release came at the tail end of the fourth visit by U.S. Special Representative and
Policy Coordinator for Burma Derek Mitchell and a week after British Foreign Minister William
Hague’s first trip to Burma.
Early reports provided only preliminary assessments of the number of political prisoners included
in the January 13 release. According to one source, the 615 released prisoners consist of 591
“prisoners of conscience” and 60 former military intelligence and customs officials.3429 Minister Ko
Ko told reporters the day after the January 13 amnesty that 302 “prisoners of conscience” had
been released.3530 As details of the release became known, the number of political prisoners
released began to converge towards a common number. As of February 22, the AAPP(B) has
identified 302 political prisoners among the released—the same figure as Minister Ko Ko.36
26
“Amnesty Granted,” New Light of Myanmar, July 3, 2012.
Ibid.
28
“Political Prisoners Released in Amnesty,” Irrawaddy, July 3, 2012.
29
Complete list available online at http://www.aappb.org/released_3_July_2012_PP_list.html.
30
“Dissidents Among Myanmar Prisoner Release: Activists,” AFP, July 3, 2012; and “Aung San Suu Kyi Calls for
Release of All Burma’s Political Prisoners,” The Guardian, July 3, 2012.
31
Ibid.
3231
The January 13 sentence suspension was notable for the inclusion of a number of prominent
political prisoners, as well as ex-military officials. Among the noted dissidents released were:
•
Min Ko Naing—a leader of the 1988 Uprising;
•
Ashin Gambira—a Buddhist monk who helped organize the 2007 “Saffron
Revolution”;
•
Khun Tun Oo—a senior leader of the Shan Nationalities League for Democracy
(SNLD) party; and
•
Sithu Zeya—a reporter for the Democratic Voice of Burma.
25
“Amnesty Granted,” New Light of Myanmar, July 3, 2012.
Ibid.
27
“Amnesty Granted to 651 Male and Female Prisoners in Accordance with Section 401, Sub-section (1) of Code of
Criminal Procedure Aimed at Enabling Them to Participate in National Reconciliation and Political Processes,” New
Light of Myanmar, January 13, 2012.
3328
Ibid.
3429
“Burma Prisoner Amnesty—13 January Releases,” Democratic Voice of Burma, January 13, 2012.
3530
“Presidential Order Sees 651 Freed,” Myanmar Times, January 16, 2012.
3631
The complete list of names is available online at http://www.aappb.org/
Update_List_of_Political_Prisoners_Released_on_13_Jan_%202012.pdf.
2726
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The January 13 sentence suspension was notable for the inclusion of a number of prominent
political prisoners, as well as ex-military officials. Among the noted dissidents released were:
•
Min Ko Naing—a leader of the 1988 Uprising;
•
Ashin Gambira—a Buddhist monk who helped organize the 2007 “Saffron
Revolution”;
•
Khun Tun Oo—a senior leader of the Shan Nationalities League for Democracy
(SNLD) party; and
•
Sithu Zeya—a reporter for the Democratic Voice of Burma.
Also among the released prisoners was ex-Prime Minister and SPDC member Khin Nyunt, who
was arrested in October 2004 and convicted in July 2005 for alleged corruption.
The use of Section 401 authority raised the issue of possible conditions on the prisoners’ sentence
suspension. Burma’s Code of Criminal Procedure grants the president authority to suspend or
remit sentences, with or without conditions, as well as cancel the suspension or remission if the
person in question fails to fulfill the conditions for her or his release. Following their release on
January 13, several former political prisoners indicated that they had been provided unconditional
pardons, but a few had said that they were instructed to limit their political activities. None of the
prisoners released were placed under house arrest. However, Sithu Zeya said to reporters that he
was told that if he committed any crime, he would have to serve the remainder of his 18-year
sentence. “It is like we are being freed with leashes still attached to our necks,” he said.3732
Because President Thein Sein based the January 13 sentence suspension on Section 401, he did
not need to obtain the approval of Burma’s National Defence and Security Council (NDSC), a
constitutional body with significant power, consisting of Burma’s president; its two vice
presidents; the speakers for each chamber of its parliament; the commander-in-chief and deputy
commander-in-chief of defense services; and the ministers of border affairs, defence, foreign
affairs, and home affairs.3833 President Thein Sein may have decided to use Section 401 authority to
avoid NDSC review, given the reported fate of a previous proposed prisoner release (see below).
On January 2, 2012, President Thein Sein issued Presidential Order No. 1/2012, granting a partial
amnesty to all existing Burmese prisoners “[a]s a gesture of hailing the 64th Anniversary
Independence Day and for the sake of State peace and stability.”3934 Under the terms of the
presidential order, death sentences would be commuted to life imprisonment, sentences of over 30
years (but less than life) would be reduced to 30 years, sentences between 20 and 30 years would
be reduced to 20 years, and sentences under 20 years would be reduced by 25%. By implication,
prisoners with less than 25% of their term left to serve would be released from jail.
Given the nature of the amnesty, it was initially unclear how many prisoners would be released
from detention. In the days following the issuance of the presidential order, sporadic reports of
prisoner releases came in from across Burma, including information on previously identified
political prisoners. Within a couple of days, AAPP(B) had compiled a list of 34 released political
prisoners, including 10 who are reportedly members of the Kayan New Land Party and 3 NLD
37
“Burma Frees High-Profile Dissidents in Amnesty,” BBC, January 13, 2012.
Hla Hla Htay, “Myanmar Prisoner Release Delayed,” Agence France Press, November 14, 2011.
39
“President Grants Amnesty,” New Light of Myanmar, January 3, 2012.
38
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members.40members.35 On January 6, 2012, the government-run newspaper, the New Light of Myanmar,
reported that 6,656 prisoners had been released as a consequence of the presidential amnesty.4136
Presidential Order No. 1/2012 was the third such prisoner amnesty since President Thein Sein
assumed power in April 2011. It came after months of speculation that the Burmese government
would announce a broader amnesty that would include a significant number of political prisoners.
As such, the United States, other governments, and various international groups have expressed
disappointment about the scope of the January amnesty.
32
“Burma Frees High-Profile Dissidents in Amnesty,” BBC, January 13, 2012.
Hla Hla Htay, “Myanmar Prisoner Release Delayed,” Agence France Press, November 14, 2011.
34
“President Grants Amnesty,” New Light of Myanmar, January 3, 2012.
35
“AAPP-Burma’s List of Freed Political Prisoners,” Mizzima, January 4, 2012; and “33 Burmese Political Prisoners
Released,” Mizzima, January 4, 2012.
36
“6656 Prisoners Granted Amnesty, 38964 Get Clemency,” New Light of Myanmar, January 6, 2012.
33
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President Thein Sein had issued two prisoner amnesties prior to January 2012 (see Table 1).
Presidential Order No. 49/2011, issued on October 11, 2011, terminated the prisoner sentence for
6,359 individually named persons, including several of Burma’s more prominent political
prisoners. Presidential Order No. 28/2011, issued on May 16, 2011, commuted all death sentences
to life in prison, and reduced all other sentences by one year in duration (exclusive of remission
days).
Table 1. Burma’s Announced Prisoner Releases
(In reverse chronological order)
Date
July 3September 17, 2012
Prisoners
Released
Political
Prisoners
Released
Percentage of
Political Prisoners
514
88
17.1%
80
25
31.3%
651
302
46.4%
January 2, 2012
6,656
34
0.5%
October 11, 2011
6,359
241
3.8%
14,578
55
0.4%
September 17, 2009
7,114
128
1.8%
February 20, 2009
6,313
24
0.4%
September 23, 2008
9,002
10
0.1%
January 3, 2007
2,831
50
1.7%
334
253
75.7%
January 3, 2005
5,588
26
0.5%
December 13, 2004
5,070
21
0.4%
November 29, 2004
5,311
12
0.2%
November 18, 2004
3,937
28
0.7%
July 3, 2012
January 13, 2012
May 16, 2011
July 6, 2005
Sources: AAPP(B); Alternative ASEAN Network on Burma (Altsean), Burma Bulletin, Issue 58, October 2011.
The January 2, 2012, amnesty ended several months of reports that the Burmese government
would soon announce another prisoner release. In October 2011, sources within the Burmese
government indicated that a prisoner amnesty may be announced prior to the Asia-Pacific
40
“AAPP-Burma’s List of Freed Political Prisoners,” Mizzima, January 4, 2012; and “33 Burmese Political Prisoners
Released,” Mizzima, January 4, 2012.
41
“6656 Prisoners Granted Amnesty, 38964 Get Clemency,” New Light of Myanmar, January 6, 2012.
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Economic Cooperation (APEC) Leaders Meeting (held on November 12-13, 2011, in Honolulu,
HI) or the East Asia Summit (held on November 19, 2011, in Bali, Indonesia). The pending
amnesty was thought to be scheduled to coincide with a decision by the Association of Southeast
Asian Nations (ASEAN) to allow Burma to chair the ASEAN meetings in 2014. The speculation
was further fueled by the movement in early November of some prisoners to locations closer to
their families.
However, the supposed pending prisoner amnesty was reportedly blocked by the NDSC. Minister
of Railways Aung Min, who also serves as President Thein Sein’s special representative at
ceasefire talks with ethnic militias, reportedly told a delegation from the New Mon State Party
(NMSP) on December 22, 2011, that political prisoners would likely be released on Burma’s
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Independence Day (January 4), Union Day (February 14), and Myanmar New Year’s Day
(April 12).4237
Political Prisoners, Parliamentary Elections and
National Reconciliation
The release of political prisoners has potentially important implications for future parliamentary
elections and prospects for national reconciliation. The NLD’s decision to participate in the
upcoming parliamentary by-elections was apparently based in part on the October 11 amnesty,
which included 39 NLD members, according to the AAPP(B).4338 At the same time, several
political parties (including the Chin National Party, the Mon National Democratic Front, the
Rakhine National Democratic Party, the Shan Nationalities League for Democracy (SNLD), and
the Zomi National Congress) said they will not participate in the by-elections because some of
their members remain in detention.4439 While the January prisoner releases included a significant
number of NLD members and a few people associated with the SNLD, neither amnesty included
members of political parties boycotting or barred from the April by-election. Regardless of how
the elections are conducted, it can be argued that the parliamentary by-elections are not free and
fair so long as some political parties are unwilling to participate because of what they perceive to
be the detention of their members for political reasons.
The NLD decision to participate in the by-election gave rise to some tension with some ethnic
groups, who saw the move as an abandonment of solidarity among opposition groups. One of the
reasons the NLD and several ethnic political parties did not participate in the November 2010
elections was the continued detention of some of their party leaders and members. Some ethnic
groups who still have members in detention were unhappy with the NLD’s decision to participate
in the by-elections. As such, Aung San Suu Kyi and the NLD may be unable to play the role of
intermediary in discussions between the Burmese government and various ethnic groups to forge
a path towards national reconciliation.
42
It is unclear if the Burmese government and Burma’s military, the Tatmadaw, are actually
interested in trying to pursue national reconciliation at this time. To some observers, their current
strategy appears to be designed to improve relations with primarily Burman organizations, such
as the NLD, while maintaining a more hard-line stance with Burma’s ethnic minorities,
particularly those with active militias. Proposals to hold a third Panglong Conference have been
rebuffed by the Burmese government.40 Ceasefire talks with the ethnic militias frequently falter
37
Kun Chan, “Minister Hints Political Prisoners Released on Jan. 4 and Feb. 12,” Mizzima, December 22, 2011; and
Wai Yan Phyo Oo, “Prisoners Likely to Freed on Auspicious Occasions,” Weekly Eleven News, January 5, 2012.
4338
Another, and probably more important, factor in the NLD decision was the amendment of election laws to allow
Aung San Suu Kyi and other NLD members to run for office.
4439
Tun Tun, “Newly Formed Parties to Contest in Burmese By-Election,” Mizzima, November 17, 2011; and Wai Moe,
“NLD Decides to Re-Register, Compete in Coming Elections,” Irrawaddy, November 18, 2011.
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It is unclear if the Burmese government and Burma’s military, the Tatmadaw, are actually
interested in trying to pursue national reconciliation at this time. To some observers, their current
strategy appears to be designed to improve relations with primarily Burman organizations, such
as the NLD, while maintaining a more hard-line stance with Burma’s ethnic minorities,
particularly those with active militias. Proposals to hold a third Panglong Conference have been
rebuffed by the Burmese government.45 Ceasefire talks with the ethnic militias frequently falter
40
The first Panglong Conference was held in March 1946, at which Prime Minister U Saw, on behalf of the British
government, met with representatives of the Chin, Kachin, Karen, and Shan to discuss the status of the border areas in
the future independent Burma. The second Panglong Conference was held in February 1947, at which Aung San (father
of Aung San Suu Kyi) met with representatives of the Chin, Kachin, and Shan and signed the Panglong Agreement,
which gave autonomy to the frontier states as part of a larger Union of Burma. The Panglong Agreement is seen as
critical to the establishment of an independent and unified Burma in 1948.
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after initial success over such issues as release of detained members, disarmament of the militias,
and preservation of the de facto autonomy of militia-controlled territory.
U.S. Sanctions and Political Prisoners
Burma’s detention of political prisoners has been a major reason for the United States to impose
sanctions on Burma.4641 The Customs and Trade Act of 1990 (P.L. 101-382), which required the
President to impose “such economic sanctions upon Burma as the President determines
appropriate,” was passed after Burma’s ruling military junta, the State Peace and Development
Council (SPDC), refused to honor the results of May 1990 parliamentary elections and detained
Aung San Suu Kyi and many other opposition leaders. Similarly, the Burmese Freedom and
Democracy Act of 2003 (BFDA) (P.L. 108-61) was passed after the SPDC cracked down on
opposition parties, and once again detained Aung San Suu Kyi and other opposition leaders. The
Tom Lantos Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2008 (JADE Act)
(P.L. 110-286) was passed after the violent suppression of the autumn 2007 popular protests and
the subsequent arrest and imprisonment of many of the protest leaders, including a number of
Buddhist monks.
The release of all political prisoners is also one of the preconditions for the removal of many of
the U.S. sanctions on Burma (see Table 2).4742 The economic sanctions required by Section 138 of
the Customs and Trade Act of 1990 are to remain in place until the President certifies to Congress
that certain conditions have been met, including “[p]risoners held for political reasons in Burma
have been released.” Section 570 of the Foreign Operations, Export Financing, and Related
Programs Appropriations Act of 1997 (Section 570)(P.L. 104-208) authorizes the President to ban
new investments in Burma if “the Government of Burma has physically harmed, rearrested for
political acts [emphasis added] or exiled Daw Aung Suu Kyi or has committed large-scale
repression of or violence against the Democratic opposition.” The BFDA requires a ban on all
imports from Burma, a ban on the products of certain Burmese companies, a freeze of the assets
of certain Burmese officials and U.S. opposition to “any loan or financial or technical assistance
to Burma” until certain conditions are met, including the release of “all political prisoners.”
Finally, the JADE Act bans the issuance of visas to certain Burmese officials and their supporters,
freezes the assets of certain Burmese officials and their supporters, and prohibits the provision of
45
The first Panglong Conference was held in March 1946, at which Prime Minister U Saw, on behalf of the British
government, met with representatives of the Chin, Kachin, Karen, and Shan to discuss the status of the border areas in
the future independent Burma. The second Panglong Conference was held in February 1947, at which Aung San (father
of Aung San Suu Kyi) met with representatives of the Chin, Kachin, and Shan and signed the Panglong Agreement,
which gave autonomy to the frontier states as part of a larger Union of Burma. The Panglong Agreement is seen as
critical to the establishment of an independent and unified Burma in 1948.
46
financial services to certain Burmese officials and their supporters until specific conditions have
been met, including the unconditional release of all political prisoners. In addition, the JADE
Act’s ban on the import of jadeite and rubies from Burma and articles of jewelry containing
jadeite and rubies from Burma is to remain in place until certain conditions have been met,
including the release of all political prisoners.
41
For more about the history of U.S. sanctions on Burma, see CRS Report R41336, U.S. Sanctions on Burma, by
Michael F. Martin.
4742
For a description of the waiver provisions of U.S. sanctions on Burma, see CRS Report R41336, U.S. Sanctions on
Burma, by Michael F. Martin.
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financial services to certain Burmese officials and their supporters until specific conditions have
been met, including the unconditional release of all political prisoners. In addition, the JADE
Act’s ban on the import of jadeite and rubies from Burma and articles of jewelry containing
jadeite and rubies from Burma is to remain in place until certain conditions have been met,
including the release of all political prisoners.
Table 2. Specified Conditions for the Removal of U.S. Sanctions on Burma
(Text extracted from relevant legislation unless otherwise noted; emphasis added)
Law
Conditions
Section 138 of the
Customs and Trade Act
of 1990
Conditions
(1) Burma meets the certification requirements listed in Section 802(b) of the Narcotics
Control Act of 1986
(2) The national government legal authority has been transferred to a civilian government
(3) Martial law has been lifted in Burma
(4) Prisoners held for political reasons in Burma have been released.
Section 570 of the
Foreign Operations,
Export Financing, and
Related Programs
Appropriations Act of
1997
President determines and certifies to Congress that the Government of Burma has not
physically harmed, rearrested for political acts, or exiled Daw Aung San Suu Kyi, and
has not committed large-scale repression of or violence against the Democratic
Opposition.a
Burmese Freedom and
Democracy Act of 2003
(A) The SPDC has made substantial and measurable progress to end violations of
internationally recognized human rights including rape, and the Secretary of State, after
consultation with the ILO Secretary General and relevant nongovernmental organizations,
reports to the appropriate congressional committeesb that the SPDC no longer
systematically violates workers rights, including the use of forced and child labor, and
conscription of child-soldiers.
(B) The SPDC has made measurable and substantial progress toward implementing a
democratic government, including—
(i) releasing all political prisoners;
(ii) allowing freedom of speech and the press;
(iii) allowing freedom of association;
(iv) permitting the peaceful exercise of religion; and
(v) bringing to a conclusion an agreement between the SPEC and the democratic
forces led by the NLD and Burma’s ethnic nationalities on the transfer of power to a
civilian government accountable to the Burmese people through democratic elections
under the rule of law.
(C) Pursuant to section 706(20 of the Foreign Relations Authorization Act, Fiscal Year
2003 (P.L. 107-228), Burma has not been designated as a country that has failed
demonstrably to make substantial efforts to adhere to its obligations under international
counternarcotics agreements and to take other effective counternarcotics measures…
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Law
Conditions
The Tom Lantos Block
Burmese JADE (Junta’s
Anti-Democratic
Efforts) Act of 2008
(T)he President determines and certifies to the appropriate congressional committeesc
that the SPDC has—
(1) Unconditionally released all political prisoners, including Aung San Suu Kyi
and other members of the National League for Democracy;
(2) Entered into a substantive dialogue with democratic forces led by the National League
for Democracy and the ethnic minorities of Burma on transitioning to democratic
government under the rule of law; and
(3) Allowed humanitarian access to populations affected by armed conflict in all regions of
Burma.
Notes:
a.
The law required the imposition of sanctions if the President determines and certifies to Congress that the
Government of Burma has committed these acts. It is assumed that removal requires a presidential
determination that the Government of Burma no longer commits these acts.
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b.
“Appropriate congressional committees” are Senate Appropriations Committee, Senate Foreign Relations
Committee, House Appropriations Committee, and House Foreign Affairs Committee.
c.
“Appropriate congressional committees” are Senate Finance Committee, Senate Foreign Relations
Committee, House Ways and Means Committee, and House Foreign Affairs Committee.
U.S. Efforts Regarding Political Prisoners
U.S. officials have consistently called for the release of all political prisoners in Burma. During
her December trip to Burma, Secretary Clinton emphasized the importance of the release of all
political prisoners for the possibility of normalizing relations between the two nations.4843 The State
Department press statement cited above restated the call for the release of all political prisoners.
In addition, during the State Department’s daily press briefing on January 3, 2012, Spokesperson
Victoria Nuland said:
[O]ur view is that even one political prisoner is one political prisoner too many. The
Secretary was very clear about that when she was in Nay Pyi Taw and in Rangoon.… [W]e
remain concerned about the more than a thousand political prisoners that remain in custody.
So we will continue to make the case to the government in Nay Pyi Taw that it is a full
political prisoner release that the international community wants to see.4944
The State Department is also reportedly raising the issue of political prisoners with other
governments. U.S. Special Representative and Policy Coordinator for Burma Derek Mitchell
traveled to China, Japan, and South Korea following Secretary Clinton’s trip to Burma to discuss
the status of U.S. policy towards Burma. The issue of political prisoners was reportedly raised
during his meetings on that trip. Similar discussions have been held with other governments and
the European Union. Following his visit to Burma, British Foreign Secretary William Hague told
48
For examples of Secretary Clinton’s statements on political prisoners, see Department of State, “Press Availability in
Nay Pyi Taw, Burma,” press release, December 1, 2011; Department of State, “Press Availability in Rangoon, Burma,”
press release, December 2, 2011; and Department of State, “Remarks with Aung San Suu Kyi,” press release,
December 2, 2011.
49
Department of State, “Daily Press Briefing,” press release, January 3, 2012.
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reporters that EU sanctions on Burma should not be lifted while political prisoners remain in
detention.5045
In addition to leading an international campaign for the release of all political prisoners in Burma,
senior U.S. officials indicate that the State Department has also had talks with senior Burmese
officials, Aung San Suu Kyi and other NLD leaders, several opposition parties, and
representatives of some ethnic groups about compiling a complete and accurate list of political
prisoners currently in custody.5146 One of the key factors in these discussions is finding a common
understanding of who is to be considered a political prisoner. Such discussions are reportedly
ongoing.
The discussions with the Burmese government are being led by Assistant Secretary of State for
Democracy, Human Rights, and Labor Michael Posner. The Bureau of Democracy, Human
Rights, and Labor has compiled and continues to update a list of all known political prisoners in
43
For examples of Secretary Clinton’s statements on political prisoners, see Department of State, “Press Availability in
Nay Pyi Taw, Burma,” press release, December 1, 2011; Department of State, “Press Availability in Rangoon, Burma,”
press release, December 2, 2011; and Department of State, “Remarks with Aung San Suu Kyi,” press release,
December 2, 2011.
44
Department of State, “Daily Press Briefing,” press release, January 3, 2012.
45
Ba Kaung, “EU Sanctions Remain Until Burmese Prisoner Release: Hague,” Irrawaddy, January 6, 2012.
46
Interview with CRS, January 2012.
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Burma based on non-government organization (NGO) and government sources, which forms the
basis of the State Department’s ongoing engagement with the GOB on political prisoners.
Issues for Congress
The political prisoner situation in Burma—as well as human rights in general—are likely to
figure prominently in congressional consideration of U.S. policy towards Burma. In the coming
months, Congress may decide to examine the status of the implementation of existing U.S.
sanctions on Burma. It may also assess the political prisoner issue, either separately or as part of a
broader consideration of human rights in Burma. Congress may take up legislation to amend or
alter U.S. sanctions on Burma, depending on the evolving conditions in the country. In addition,
the Obama Administration may ask Congress for additional funding for humanitarian programs in
Burma to address the serious humanitarian needs of Burma’s internally displaced people (IDPs),
refugees, and other vulnerable populations, and to foster desired political changes.
Existing U.S. sanctions on Burma are based on several laws specifically focused on the country,
as well as other laws that sanction nations that fail to comply with U.S. standards of conduct
related to specific issues. The changing political situation in Burma may warrant congressional
consideration of whether alteration or removal of sanctions should be considered under current
law. Similarly, the President has the authority to waive or suspend some of the existing sanctions
on Burma if he determines that the necessary conditions have been met. If the President were to
exercise this executive authority, Congress may choose to review the President’s determination.5247
Secretary Clinton has already announced plans to nominate an ambassador to Burma. If and when
a nominee is selected, the person will be subject to the usual confirmation process in the Senate.
Congress may also choose to monitor and evaluate the Obama Administration’s efforts to address
the political prisoner and human rights situation in Burma. The JADE Act explicitly requires that
50
Ba Kaung, “EU Sanctions Remain Until Burmese Prisoner Release: Hague,” Irrawaddy, January 6, 2012.
Interview with CRS, January 2012.
52
The current U.S. sanction laws specifically focused on Burma provide for a presidential waiver of some sanctions,
generally if the President determines that it is “in the national interest of the United States.” In most cases, the President
also has to “determine and certify” to Congress or the specified “appropriate congressional committees” that the waiver
is in the national interest of the United States.
51
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the Special Representative and Policy Coordinator for Burma “consult with Congress on policies
relevant to Burma and the future and welfare of all the Burmese people, including refugees.”5348 In
addition, Congress may decide to consult with non-Administration sources and/or hold hearings
to ascertain the human rights situation in Burma, including the issue of political prisoners.
Beyond its oversight function, Congress may decide that circumstances warrant consideration of
new legislation related to U.S. policy towards Burma. Such legislation could reflect a
determination to play a more active role in the formation of U.S. policy towards Burma.
Alternatively, legislation may be considered in response to a request from the Obama
Administration to amend existing laws to facilitate an adjustment in U.S. policy.
Congress may also be called upon to consider additional funding for humanitarian assistance to
Burma. During her trip to Burma, Secretary Clinton signaled that the United States would provide
additional humanitarian assistance in the future, and announced several specific initiatives. After
the official results of the April 1 parliamentary by-elections were released, Secretary Clinton said
47
The current U.S. sanction laws specifically focused on Burma provide for a presidential waiver of some sanctions,
generally if the President determines that it is “in the national interest of the United States.” In most cases, the President
also has to “determine and certify” to Congress or the specified “appropriate congressional committees” that the waiver
is in the national interest of the United States.
48
JADE Act, Section 7(c)(4).
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that the United States would relax some of the existing sanctions, as well as establish an incountry USAID mission in Burma.5449 Some of those initiatives are to be funded out of existing
appropriations; others are financed by contributions by other countries. It is possible that the
Obama Administration may request additional funds for humanitarian projects inside Burma.
Author Contact Information
Michael F. Martin
Acting Section Research Manager/Specialist in
Asian Affairs
mfmartin@crs.loc.gov, 7-2199
53
54
JADE Act, Section 7(c)(4).
49
Secretary of State, “Recognizing and Supporting Burma’s Democratic Reforms,” press release, April 4, 2012.
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