This month the National League for Democracy released its new economic policy, and stated it seeks to attract more foreign investment. Given that the NLD has inherited inadequate land regulation and an ineffective judiciary, it is unclear how increased investment would be reconciled with NLD policy to address the land rights of people in Myanmar.

Foreign governments want their investors to cash in on the investment boom but have no confidence in Myanmar’s regulatory framework and its judiciary. Many, such as the European Union (EU), are busily negotiating Bilateral Investment Treaties (BITs).

These treaties guarantee investor’s interests as ‘rights’ and give their investors access to Investor-State Dispute Settlement (ISDS) mechanisms outside of Myanmar. ISDS enables foreign companies to challenge new laws and policies that they view adversely affect their profits, including future land reforms.

Myanmar has entered into BITs with Japan, South Korea, the Philippines, China, Laos, Vietnam, Thailand, Israel and India and is party the ASEAN Comprehensive Investment Agreement, all of which include ISDS provisions that undermine the sovereign “right to regulate”.

Myanmar has a land regulation problem requiring legal reform. For decades the government expropriated land with impunity. Doling out land to crony businessmen and unscrupulous foreign investors became the norm. An influx of recent investment has increased demand for land, raised prices and further enriched those with connections. Poor land regulation means that some investors continue to be granted land obtained illegally or under dubious circumstances.

Under the current land laws more than half of Myanmar’s land users do not have legal tenure leaving them vulnerable to land grabs and forced eviction. The current land laws were designed to encourage large-scale land use and promote economic growth. The procedures for land acquisition under antiquated laws in Myanmar are rarely followed in practice. People have little or no access to justice, as the courts have proven reluctant to address sensitive cases. Instead, many communities find themselves charged with trespassing on land on which they have lived for generations.

The NLD government was swept into power promising to reform the land law and deal with widespread land grabbing. In order to protect land rights, the new government will need to create new law and policy restricting such practice and holding those who benefitted accountable.

But new law and policy on land redistribution and the recognition of communal land rights may conflict with the interests of foreign investors and give rise to costly disputes under BITs. In relation to ‘land grabbing’, ISDS could protect one-sided land deals that complied with bad national law and resulted in forced evictions. Investors could obtain market value compensation even if they acquired the land at less than market price.  Just the threat of litigation may be enough to dissuade needed land reform.

There are a number of international examples where new laws and regulations passed by democratically elected governments have been challenged by foreign investors through ISDS. These are costly disputes – some arbitral awards run into the billions of dollars. Recent challenges by tobacco giant Phillip Morris against Australian and Uruguay plain packaging cigarette laws were unsuccessful but cost millions in Lawyer’s fees. Australia reportedly paid 50 million USD to defend its law.

Myanmar lacks the legal and financial capacity to defend repeated challenges by deep-pocketed investors. In Myanmar, this money could be better spent improving the dire state of health and education.

Many states have turned against the inclusion of ISDS in BITs. South Africa, Bolivia, Ecuador, Venezuela, and Indonesia have started to cancel or phase out existing BITs. Others, including India, are reviewing current BITs and rethinking future negotiations. From Australia to Europe and North America, BITS are now part of public debate. Civil society is voicing its concerns with the ISDS system, questioning the rationale of the global investment protection system itself. Besides, there is not even clear evidence that ISDS and BITs actually increase foreign investment.

Economic investment should contribute to the rule of law and human rights. In order for this to happen, Myanmar must align policies with a vision of development based on local and national aspirations, placing people, and their rights, at the centre of the process. BITs are often negotiated behind closed doors with little public or parliamentary oversight. These are important decisions that impact on the rights of people in Myanmar.

Public participation is essential to the law reform process. Try telling farmers that investors should have access to special courts to protect their interests while their land can be taken without adequate compensation and without due process. Civil society has not yet had the opportunity to participate in genuine and informed consultation on Myanmar’s BITs. Relying on EU consultation procedures, for example, is not good enough.

BITs should refer to the various legal regimes, including international human rights law, to which Myanmar has legal obligations. This will help ensure that ISDS cannot be used to override Myanmar’s other legal commitments. Myanmar has recently signed the International Covenant on Economic Social and Cultural Rights, signalling its willingness to put in place policies to progressively achieve healthcare, education and social security. These rights are also protected in Myanmar’s constitution. ISDS threatens the ability of government to fulfil these rights.

Before agreeing to further BITs, Myanmar must adopt and enforce a new land law in line with international standards recognising the tenure of land users. In future BITs, Myanmar must prevent ISDS being used to challenge legitimate public purpose legislation. It should revisit old BITs that already allow investors to do so.

Ensuring legal certainty for foreign investors does not require empowering companies to challenge public-interest policies. Attracting foreign investment should not compromise government ability to regulate in favour of the rights of its people.

Promoting the use of habeas corpus should be vigorously pursued in Myanmar as a remedy for arbitrary arrest and detention, argues the International Commission of Jurists.

This article was published in Frontier Magazine on June 30th. http://frontiermyanmar.net/en/habeas-corpus-plea-action 

By DANIEL AGUIRRE | FRONTIER

“I’ve been in jail for almost a year and I don’t know what I am charged with,” a detainee in Yangon told the International Commission of Jurists earlier this month.

Another complained that when he was arrested, “the police had no warrant and did not inform me about my crime”. Neither detainee had enjoyed the human right to challenge the lawfulness of their detention.

Such complaints are common, as the ICJ has said in its new Handbook on Habeas Corpus in Myanmar. The ICJ’s analysis shows that, notwithstanding some reform, security forces often arrest and detain people without following proper procedures, in violation of Myanmar’s national laws and international human rights obligations. There continue to be multiple cases of arbitrary or unlawful arrest and detention in the country, sometimes used to suppress political dissent.

Reintroduced in Myanmar under the 2008 Constitution, habeas corpus has been described as “the great writ of liberty”. It affords anyone detained, or their representative, the right to challenge the legality of arrest and detention before a court. It is a key legal device to prevent unlawful detention, torture or enforced disappearance.

Habeas corpus puts a duty on the courts to review the lawfulness of detention and on the security forces to prove they acted within the law. If detention is unlawful, the court must free the detainee immediately. Under international law, it is applicable at all times to anyone (not just citizens) under any form of detention, including during a state of emergency, even in countries, such as Myanmar, that are not yet state parties to relevant international treaties.

It is crucial that this writ be used to ensure that nobody is detained without due process or solely for lawful political dissent, as is the case for many political prisoners.

Although articles 296(a) and 378(a) of the 2008 Constitution guarantee the right to habeas corpus, the ICJ could not find a single case in which the writ had been used to overrule an unlawful arrest or detention.

Another tool for protecting detainees’ rights is Section 491 of the Criminal Procedure Code. It allows High Courts to summon and release wrongfully detained prisoners. However, Myanmar judges and lawyers said it has not been used in decades.

When Myanmar’s military rulers began cracking down on political dissent and imposed authoritarian rule, they naturally got rid of habeas corpus. Despite its reinstatement, habeas corpus remains politically sensitive, as it requires the judiciary to review and rule upon the actions of the security forces.

The ICJ has observed and documented several cases where the failure to comply with due process rights could have been challenged through habeas corpus proceedings. For example, the detainees who spoke with us this month have never been properly charged and their alibis never properly examined in court. Others are arrested solely for exercising their right to freedom of expression. We have monitored a number of manifestly unfair trials.

However, Myanmar lawyers remain reluctant to petition for the writ of habeas corpus to challenge the actions of government agencies. Their hesitation is partly the result of the systematic dismantling of Myanmar’s legal system, which has rendered judges, lawyers and government officials unfamiliar with international standards. Few have ever seen the writ of habeas corpus used properly. In addition, the Myanmar judiciary remains drastically under-resourced and requires capacity building.

Another practical obstacle is that only the country’s Supreme Court can hear habeas corpus petitions and it is based in Nay Pyi Taw, a situation that discourages many lawyers from incurring the costs and logistical difficulties involved. Contrary to international standards, the constitution suspends the writ during declared emergencies, which means that it cannot be used in the places that need it the most. Moreover, lawyers claim that the petition process can take months, when international standards call for it to be simple, expeditious and free.

In addition, many lawyers say that habeas corpus is not useful to protect their clients because Myanmar’s judiciary is not yet independent. Indeed, the ICJ’s research shows the courts are often unwilling or unable to challenge the government and the military. Until the courts are able to enforce judicial procedures such as habeas corpus, the rule of law and human rights will remain elusive.

Lawyers must bring habeas petitions on behalf of their clients. Not only does this create a record documenting purported human rights abuses, but it will also increase pressure on judges to rule on petitions. The courts must fulfil their role as guarantors of the constitution and human rights.

The new government and the judiciary have committed to the rule of law and human rights. Promoting the use of habeas corpus will help protect the rights of people in Myanmar and strengthen the independence of the judiciary, as well as the rule of law in the country. It is already on the books and it should be vigorously pursued as a remedy for arbitrary arrest and detention.

The Myanmar government should begin using the writ of habeas corpus to prevent unfair arrests and detention, the International Commission of Jurists (ICJ) said on 27 May as it released its Handbook on Habeas Corpus in Myanmar.

The Handbook describes the legal practice in Myanmar since the writ of habeas corpus was reintroduced in the country’s 2008 Constitution after decades of neglect.

Along with international standards regarding this important legal safeguard for human rights, the Handbook outlines judicial precedent before the writ was effectively abandoned in the late 1960s following the establishment of military rule in the country, the ICJ says.

Although Articles 296(a) and 378 (a) of Myanmar’s 2008 Constitution guarantee that a person deprived of his or her liberty has the right to petition for a writ of habeas corpus, in practice the ICJ could not find a single case in which the writ had been used successfully to challenge the lawfulness of anyone’s arrest or detention.

“Around the world, the writ of habeas corpus is one of the key legal devices to prevent unlawful detention and other human rights violations such as torture or other ill-treatment and enforced disappearance,” said Sam Zarifi, ICJ’s Asia Director. “When Myanmar’s military rulers began cracking down on political dissent and imposed authoritarian rule, they naturally got rid of this protective mechanism.”

“It’s crucial that this writ now be used properly to ensure that there are no more political prisoners or people improperly detained without due process,” he added.

The right to habeas corpus entitles petitioners for the writ of habeas corpus to challenge the legality of their arrest or detention before a Court.

The Court issues an order to bring the petitioner before it to review and determine the legality of his or her arrest and detention.

If the authorities cannot prove the legality of arrest and detention, the Court may order the detainee’s release if appropriate.

The ICJ’s analysis in the Handbook shows that, notwithstanding some reform, there are still multiple cases of arbitrary or otherwise unlawful arrest and detention in the country, particularly as a tool to suppress political dissent.

Despite the 1898 Criminal Procedure Code (CrPC) setting out the procedures for arrest and detention, in practice, security forces rarely adhere to these procedures, the ICJ says.

The ICJ has observed and documented pre-trial and trial phases of several cases, where the failure to comply with due process rights could have provided an effective basis on which to mount habeas corpus challenges against deprivation of liberty.

For instance, the habeas corpus procedure could have been used to challenge the arbitrary arrest and detention of human rights defender U Gambira, who has been detained since 19 January 2016.

The writ of habeas corpus would have allowed him to contest several shortcomings in his arrest and detention, for instance, that he was not promptly notified of the reasons for his arrest when he was detained, the ICJ adds.

Likewise, defendants in a number of cases accused of offences against religion should be able to exercise their right to habeas corpus to challenge their detention if it was the result of a conviction solely for the lawful enjoyment of one’s freedom of expression.

The writ would entitle the Supreme Court to review the case and re-examine whether there was deliberate and malicious intent to insult a religion. If the basic criminal law requirement of intent was not met then the detainees should be set free.

“Until now, many lawyers are convinced that it’s not useful even to try to use the habeas corpus petition to protect their clients, in part because they’re unfamiliar with the writ, and in part because they believe that Myanmar’s judiciary has lacked the independence to review the decisions of the Executive branch, and particularly the security and intelligence authorities,” said Zarifi.

 

BACKGROUND

The right to challenge the lawfulness of detention before a court is a self-standing human right, the denial of which constitutes a human rights violation. Thus the right of detained people to a habeas corpus procedure should be applicable to all people at all times, under any form of detention, including during a state of emergency or armed conflict, even in countries, such as Myanmar, that are not yet State Parties to relevant international treaties.

In all cases in which arrest or detention is unlawful or arbitrary, the habeas corpus procedure may secure release from detention, whether the detention was ordered by the highest powers of the state, imposed by state armed forces or police and other security agencies. Myanmar’s Judiciary, however, is not yet used to challenge the Executive branch or the Military.

Obstacles remain to the procedure’s implementation in practice. The systematic dismantling of Myanmar’s legal system has rendered judges, lawyers and members of the government unfamiliar with international laws and standards. Few have ever seen the writ of habeas corpus used properly. In addition, the Myanmar judiciary remains drastically under-resourced and requires capacity building.

Another significant practical obstacle is that only the country’s Supreme Court, located in Nay Pyi Taw and far away from many of the country’s population centers, can hear a petition for habeas corpus—discouraging many lawyers from incurring the costs and logistical difficulties involved in bringing proceedings before the Supreme Court. Moreover, lawyers claim that the petition process can take months, when international standards clearly call for it to be simple, expeditious and cost-free.

“Myanmar has a unique opportunity to address the rule of law and human rights,” said Zarifi. “One potential remedy for arbitrary arrest and detention is already on the books but not used – the Constitutional writ of habeas corpus. It should be promoted through training for lawyers, judges, police and prosecutors.”

Highlights from ICJ’s Handbook on Habeas Corpus:

International law guarantees the right of all individuals deprived of their liberty to an expeditious judicial procedure in which an independent and impartial court reviews the legality of their detention and orders the release of individuals wrongfully detained. This right is commonly referred to as ‘habeas corpus’.

In Myanmar under military rule from 1962 until 2008, there was no effective mechanism to challenge the lawfulness of detention before a court. One of the major (and unanticipated) improvements in Myanmar’s 2008 Constitution was the reintroduction of the writ of habeas corpus. Since then, the government has passed an “Application of Writs Act 2014” and the Supreme Court has promulgated rules and procedures for its implementation.

The examination of the habeas corpus laws and jurisprudence in Myanmar since 2008 reveals shortcomings in the legislation as well as its current implementation. For example, it suspends applications in areas under declared states of emergency. The suspension of habeas corpus, even under a ‘state of emergency,’ is inconsistent with international human rights standards. Likewise, restricting the writ application to the jurisdiction of the Supreme Court in remote Nay Pyi Taw severely limits access to the procedure for the people of Myanmar. In fact, the Handbook points out that other remedies akin to habeas corpus are available at the High Courts of the States and Regions but are not used by lawyers.

According to the information available to the ICJ, since 2008, the Supreme Court has not granted the writ of habeas corpus: the Supreme Court has not ordered the respondent-authorities to ‘produce the body’, nor has it ruled that an arrest or detention was unlawful on any occasion. The few judgments discovered by the ICJ appear inconsistent with both national and international standards.

In order to assist and propel the process of judicial reform and strengthen the protection of human rights, the International Commission of Jurists provides this discussion of the law relevant to the writ of habeas corpus under international law as well as Myanmar’s current national law. The following are of particular significance:

  • Analysis of international standards for challenging arbitrary or unlawful arrest or detention (including that which results in torture and ill-treatment of detainees);
  • Analysis of Myanmar’s current legal framework for the Constitutional writ of habeas corpus;
  • Analysis of the seemingly forgotten and underutilized procedure for challenging arbitrary

    arrest and detention (similar to the writ of habeas corpus) under Section 491 of the 1898 Code of Criminal Procedure;

  • Analysis of the few publicly available recent petitions for the writ of habeas corpus;
  • Analysis of relevant existing precedents (pre-1962) from the Myanmar judiciary’s case law on

    habeas corpus.

    The development and implementation of the right to habeas corpus in a manner consistent with international standards is essential to the protection of human rights and the promotion of the rule of law in Myanmar. The Handbook includes a set of recommendations aiming to ensure the effective application of the writ of habeas corpus as well as enhance respect for the independence of the judiciary and protection of human rights and the rule of law in Myanmar.

    The key recommendations include:

  1. Legislature: Revise key provisions of the Constitution, laws and policies pertaining to the writ of habeas corpus, as well as arrest and detention, to ensure their consistency with international standards.
  2. Supreme Court: Act independently and impartially to uphold the constitutional right to habeas corpus; ensure that the detainee appears before the court and the legality of their arrest and detention is determined; provide reasoned public judgments for all habeas corpus petitions; provide extensive training for Judges on the application of the writ of habeas corpus.
  3. Executive and Attorney General: Issue a directive to ensure that arrest and detention is carried out in line with international standards and to urge law officers to comply with the writ of habeas corpus procedure; law officers must be present in court, produce the detainee and explain how the detention was carried out in accordance with the law; provide extensive training on the role of the prosecutor in habeas corpus petitions.
  4. Bar Associations and lawyers: Provide extensive capacity building, support and encouragement for lawyers to challenge arrest and detention as well as to file petitions for the writ of habeas corpus or to use similar procedures under CrPC Section 491.

Myanmar-Handbook on Habeas Corpus-Publications-Reports-thematic reports-2016-ENG (Full handbook in PDF)

Bill O’Toole of the Democratic Voice of Burma has written an article discussing law reform in the Democratic Voice of Burma that quotes the ICJ.

Investors and activists await new govt’s economic policies

More than a month into the new National League for Democracy (NLD) government’s tenure, key pieces of economic policy remain in limbo, leaving both foreign investors and human rights activists uncertain about the future.

Since it began its transition to civilian rule five years ago, Burma has attracted the attention of many would-be investors. But its appeal — based on its wealth of natural resources and abundance of cheap labour — has been dimmed by the country’s continuing reputation for human rights abusesand unresolved legal issues.

With a new administration now in power, however, expectations are high that some of these hurdles could soon be cleared, provided the government acts to address both foreign and domestic concerns by introducing new legislation.

“This is a key moment for the NLD to show their commitment to regulation that fulfills their duty to protect human rights, ensure accountability and provide access to remedy for those whose rights are violated during the process of economic development,” said Daniel Aguirre, a Rangoon-based legal advisor with the International Commission of Jurists (ICJ).

But even as he notes that Burma’s investment, resource extraction and land regulation regimes are in flux, Aguirre says the NLD shouldn’t be in too much of a hurry to pass laws. “These laws must be drafted carefully as Myanmar [Burma] will have to live with their consequences for the foreseeable future,” he said.

For the full article see: http://www.dvb.no/news/investors-activists-await-economic-policies/62440

 

I am at the 2016 Asia Regional Forum on Business and Human Rights in Doha, Qatar.

http://www.ohchr.org/Documents/Issues/Business/AsiaForum/ProgrammeWithSpeakers.pdf 

Yesterday I spoke on a panel entitled: Righting the Wrong: Challenges and opportunities in seeking criminal accountability for corporate human rights abuses in Asia.

http://www.ohchr.org/Documents/Issues/Business/AsiaForum/Doha_workshop_side_session_concept_note.pdf 

The panel was co-hosted by The International Commission of Jurists, Amnesty International, The International Corporate Accountability Roundtable and the American Bar Association Centre for Human Rights. I discussed the barriers to corporate legal accountability in Myanmar in a short, ten minute speech. My intervention is outlined below.

Prosecuting Companies in Myanmar: Challenges and Opportunities

The International Commission of Jurists (ICJ) works with Judges, prosecutors, lawyers and civil society to strengthen and support the rule of law and the application of international human rights law at the national level. Part of our work is bringing together community activists and lawyers to explore how the problems reported by communities can be addressed by lawyers using the judiciary. This is very difficult in Myanmar, as the judicial system was systematically undermined by the military regime over 50 years, destroying a system once regarded as among the finest in the region.

Prosecuting corporations in Myanmar is difficult as the notion of legal accountability is in its nascent stages. The public does not trust the judiciary, which is under resourced, lacking in capacity and assumed to be corrupt. The only time a person goes to court in Myanmar is as a defendant. Disputes are resolved in any other means possible, with the courts avoided at all costs. This lack of the rule of law undermines the State duty to protect and provide remedy in the context of business and human rights.

The State Duty to Protect

The State duty to protect requires regulation designed to prevent companies from violating human rights through their business operations. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.

Myanmar lacks key human rights protections in law. It has only recently adopted Environmental Impact Assessment Procedures (EIAs) and some limited environmental protection standards. It lacks an umbrella land law that protects land rights. The current framework renders more than half the population without legal land tenure. Worse still is the selective use of laws to punish human rights defenders, activists and land rights advocates. Peaceful assembly law has been used to dole out extended prison sentences to ‘trouble makers’ stifling protest and political opposition.

Where laws are in place or will be developed in the future, the problem is implementation in practice. Departments and ministries lack the willingness and capacity to implement, monitor and enforce laws. Moreover, the military still retains undue influence over the administrative action of the government. This allows it to protect vested interests, such as crony investors, and prevent the fair application of standards. Human rights advocates struggle to raise funds for lawyers in absence of legal aid.

Judges, lawyers and prosecutors are not yet aware of their crucial role in promoting and protecting human rights. The notion of challenging government decisions and taking on powerful corporations is a new one. This is not addressed in law schools that were strictly controlled for years under the military. A government that feared lawyers and students assured that law students were disempowered.

Access to Remedy

In addition to the failure of the state to protect human rights, Myanmar has also failed to provide adequate access to remedy. As part of their duty to protect against business-related human rights abuse, Myanmar must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory those affected have access to effective remedy. This has not occurred.

Myanmar’s judiciary is not independent form the undue influence of other branches of government and the military. This creates a public perception of injustice and undermines the rule of law.

Judges lack resources and capacity and are subject to pressure from the executive through the Attorney General’s Office. Many Judges, including members of the Supreme Court, are military appointed. The courts are under resourced and require further support from the international community. The Attorney General plays a powerful role and has been an obstacle to reform in the past. It does not use prosecutorial discretion to the benefit of the public. Instead, it has relentlessly pursued human rights defenders while failing to address systematic corruption and human rights abuses by foreign and domestic companies. Lawyers do not have an independent bar association. The current legal body is headed by the Attorney General and has punished its members for taking on contentious cases.

Current land law creates administrative bodies to handle land disputes. These committees make vital decisions affecting human rights at the local level. Their decisions are perceived as final and have had not been subject to adequate judicial oversight despite the availability of constitutional writs as rights of citizens.

Yet there are positive signs. As you all know, there is a new government in Myanmar. There is an unprecedented opportunity to engage and cooperate. The Attorney General’s Office, the Supreme Court and the new government have all signalled their commitment to reform in line with the rule of law and human rights. There is a new Attorney General, appointed by the new government, who can take the lead on judicial reform. Lawyers are emboldened and increasingly willing to take on tough cases with less fear for their careers.The ICJ builds the capacity of and supports all of the above in the protection of human rights.

Yet under the current regulatory regime, it is unlikely criminal or civil litigation will hold powerful economic actors like corporations accountable. Yet it is into this regulatory void that investment has flowed since reforms began in 2008.

While economic change has been rapid and politics have progressed over the last few years, legal reform is very slow. This is a generational change that will require reform of legal education, increased capacity building and support from the international community. In the meantime, the state duty to protect and provide access to remedy cannot be fulfilled, bringing into question the utility of the corporate responsibility to respect human rights put forward by the UN Guidelines.

Oxford Transitional Justice Research:

By Irene Pietropaoli

On 1 February 2016 Myanmar convened its first democratically elected parliament after five decades of military rule.  Given the role that resource control played in the conflict, addressing corporate accountability in transitional justice mechanisms is critical to breaking down impunity, addressing causes of conflict, and achieving sustainable transition and economic development. But both transitional justice and corporate accountability, which comprises measures to hold companies responsible for human rights abuses, are not on the political agenda. As economic growth is set as a priority, anything that could scare investment away, including discussions on corporate accountability, is regarded with great apprehension. But economic development and corporate accountability should not be framed as a trade-off.

For the full article see: http://www.justiceinfo.net/en/research/26259-corporate-accountability-and-transitional-justice-in-myanmar.html 

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