Published in the state-run newspaper on December 21, the Former Presidents Security Bill grants immunity to former heads of state “from any prosecution for actions during his term.” Outlined in article 10, this provision would protect former presidents from domestic prosecution for even the most serious crimes committed while in office, including war crimes and crimes against humanity.

“The Former Presidents Security Bill is a brazen attempt to shoehorn immunity from prosecution into the president’s retirement package,” said Phil Robertson,  deputy Asia director at Human Rights Watch. “The immunity provision should be stripped from the proposed law so that President Thein Sein and future Burmese presidents remain accountable for any crimes they commit.”

The draft law consists of 14 clauses that outline the government’s commitment to support retired presidents, such as lifetime funding for a bodyguard and other personal security measures.

The bill was announced during the final parliamentary session of the current government, which reconvened shortly after the National League of Democracy’s (NLD) landslide victory in the November 8 elections. The session will continue until the end of January 2016. President Thein Sein and the ruling Union Solidarity and Development Party (USDP) have promised a smooth transition of power to the new NLD-led government. Yet the proposed provision on presidential immunity suggests that the military and USDP want to ensure that their leaders cannot be prosecuted for past criminal offenses.

Impunity for Myanmar’s longstanding military government is already enshrined in Article 445 of the 2008 Constitution, which prohibits prosecution of officials of former military juntas including the State Law and Order Restoration Council (SLORC) (1988-1997) and the State Peace and Development Council (SPDC) (1997-2011), of which Thein Sein served as prime minister until 2010. Article 445 blocks justice for the victims of decades of human rights violations carried out under military rule, Human Rights Watch said.

Myanmar military personnel also enjoy effective immunity as the commander in chief serves as final arbiter in matters of military jurisdiction. However, since 2011 the military commander has referred some cases of military personnel to be prosecuted in civilian courts for offenses related to sexual violence against women and young girls, use of child soldiers, and murder.

Domestic immunity from prosecution would not spare past Myanmar leaders from prosecution for international crimes before international tribunals, including the International Criminal Court (ICC), Human Rights Watch said. Although Myanmar is not a member of the ICC, war crimes and crimes against humanity could still be tried by the court with United Nations Security Council approval. Article 27 of the ICC’s Rome Statute on “Irrelevance of official capacity” states that heads of state and government are not exempt from criminal liability and that national immunities provide no bar to prosecution. Under the concept of universal jurisdiction, grave crimes including war crimes, torture, and crimes against humanity can be prosecuted by a country even if the crimes were not committed on its territory, or by or against one of its nationals.

“Instead of providing another protective blanket for the already well-shielded officials of past military governments, the parliament should act to ensure that all Burmese are equal under the law,” Mr Robertson said. “By making domestic prosecutions more difficult, the government is sending a signal that serious crimes may have to be addressed by international or foreign courts, where domestic immunities are irrelevant.”

Law being pushed to protect presidents from prosecution. President Thein Sein. Photo: Theingi Tun/Mizzima)