How Burma’s Draft Law on Prisons Falls Short on Solitary Confinement

The UN’s revised Minimum Rules on the Treatment of Prisoners (also known as the Mandela Rules) are raising the bar for the treatment of prisoners. While the original UN Standard Minimum Rules for the Treatment of Prisoners made no mention of the use of solitary confinement in prisons, the Mandela Rules permits the use of solitary confinement, but place restrictions on the duration and circumstances under which it may be used. This is in keeping with global trends, where solitary confinement is increasingly falling out of favor in societies concerned with protecting the human dignity and well-being of prisoners.

However, Burma is falling behind in the global movement toward reducing the use of solitary confinement. The Burmese government recently proposed a new draft law on the treatment of prisoners. While some aspects of the draft law may have met the old UN Rules, the law as a whole falls far short of meeting the standards established in the Mandela Rules, particularly in regards to solitary confinement.

The Mandela Rules define solitary confinement as detainment for at least 22 hours a day, without significant interaction with other people. Under Rule 43(1)(a) and 43(1)(b) of the Mandela Rules, prisoners should not be punished with indefinite or prolonged solitary confinement. Rule 44 defines prolonged solitary confinement as confinement lasting over 15 days. The Mandela Rules also provide certain safeguards and limitations to solitary confinement that are missing from Burma’s draft law. Under Rule 45(2) of the Mandela Rules, women and children, as well as individuals with mental and physical disabilities that would be aggravated by solitary, should not be detained in solitary confinement. The Mandela Rules also emphasize that solitary confinement should be used sparingly, as a last resort, and for as short a time as possible. Further, a prisoner’s well-being under solitary confinement should be under the independent review of a competent authority.

Under Rule 44(a)(6) of the Burma draft law, solitary confinement is permitted as punishment for 14 days, which seemingly fits into the standards established by the Mandela Rules. However, under Rule 44(a)(8), solitary confinement over 14 days is permissible if under the direction of the Director General of the Prison Department. This is a direct violation of Rule 43(1)(a) and (b), as well as Rule 44 of the Mandela Rules. Limiting solitary confinement to 14 days, while permitting exceptions and the opportunity to extend the time, does not uphold the new protections of the Mandela Rules, nor respect human dignity. The proposed Burma draft law also fails to provide proper safeguards against abuse, as outlined under the Mandela Rules. Although the draft law does not explicitly state that women and children may be held in solitary confinement, the law does not prohibit it. To properly protect prisoner’s rights, intolerable punishment and treatment should be unambiguously prohibited by the law. The Burma draft law also neglects to establish proper review procedures by a competent authority.

The UN Special Rapporteur for Torture, Juan Mendez, has stated that torture, as well as cruel, inhuman, and degrading treatment is likely when solitary confinement is used for punishment, during pretrial detention, indefinitely, for an extended period of time, and on minors or persons with mental disabilities. The Rapporteur found that severe mental and physical suffering is more likely under these conditions of solitary confinement. Further, solitary confinement provides greater opportunities for prison officials to torture prisoners, as the torture is likely to go undetected and the prisoner has fewer opportunities to complain.

The proposed Burma draft law states that punishment shall not include torture or cruel, inhuman, or degrading treatment. As such, the provisions on solitary confinement must be revised to fall in line with the Mandela Rules and uphold the draft law’s commitment against torture and cruel, inhuman, and degrading treatment. Civil society groups in Burma continue to raise concerns about the multiple inadequacies of the proposed draft law. The standards are clear and it is now time for Burma’s Parliament to get them right.