The Rule of Law in Myanmar: Analysis from Geneva

On Tuesday 12 March 2014 at the Palais des Nations in Geneva, the International Commission of Jurists held a side event on the rule of law and human rights in Myanmar.  The members of the panel, including myself, drew upon our experience to highlight on-going challenges to the rule of law in Myanmar and their impact on the enjoyment of human rights. We provided personal insight into the important international presence for human rights monitoring, practical challenges facing lawyers concerning the rule of law, and link these issues to sustainable economic development on the ground in Myanmar today. The panel argued that it is crucial to maintain a robust engagement with the UN human rights mechanisms in order to support and facilitate the reform process in Myanmar and improve the country’s human rights situation.

Speakers:

Tomás Ojea Quintana, UN Special Rapporteur on the situation of human rights in Myanmar

KMS, Myanmar lawyer

Daniel Aguirre, International Commission of Jurists (ICJ), Myanmar

Chair/moderator:

Carlos Lopez, International Commission of Jurists

Carlos Lopez opened the event by introducing the panel and setting the stage by acknowledging the impressive and ongoing reforms underway in Myanmar. In particular, he noted the pace and scope of political and economic transformation. While heartened by change he expressed the need for ongoing engagement with the UN Mechanisms, including with the Special Rapporteur, in order to monitor the consolidation of the still fragile reform process.

The panel opened with an overview by Tomás Ojea Quintana of his mandate and his final report on the situation of human rights in Myanmar. Again, the gains made under the reform process were applauded. He noted, however, that there were still ongoing human rights violations and perturbing situations that threatened peace, stability and the ongoing transition to democracy. In particular, he highlighted the problems concerning the rule of law and the need to reform the judiciary to ensure fair trials. He also noted that the ethnic and religious conflicts in Rakhine, Kachin and Shan states were grave and that systemic human rights abuse endured.

KMS, a lawyer from Myanmar, outlined the problems with the rule of law that are faced when contesting politically sensitive cases. He explained that the work of lawyers has become much easier and that reforms have lessoned the direct threats and harassment. Nevertheless, he spoke about the impact of undue of political influence, special interests and corruption in cases about land rights. He raised the issue of the independence of the judiciary and the fact that lawyers do not have an independent bar association. He stressed the need for constitutional amendments and emphasised that this depended on changing the onerous amendment procedure that requires 75 percent of parliament to agree even though 25 percent of parliament is reserved for the military. He stressed the importance of maintaining the momentum of reform to ensure that the judiciary would function according to international standards in the future.

In my statement I linked these human rights and rule of law issues to investment, business and economic development. The area of business and human rights is increasingly governed by the Sui Generis regime created by the UN Guiding Principles on Business and Human Rights. The Principles rest upon three pillars: the State responsibility to protect human rights, the business responsibility to respect human rights, and the international responsibility to ensure remedy when the first two pillars are insufficient.

I noted that the Special Rapporteur’s Report showed disturbing trends in the protection of the most vulnerable groups in Myanmar, especially ethnic and religious minorities.  Additionally, the poor, who constitute the vast majority in Myanmar, are adversely affected by exploitation and rising inequalities associated with rapid economic development. They are vulnerable and have limited access to justice. I explained that the rule of law issues examined by KMS are relevant to business and human rights as they weaken the government’s ability to protect human rights and provide remedies for violations.

The second pillar, the responsibility to respect by corporations, has seen the most gain in Myanmar as it is increasingly accepted as a duty by investors. However, it was noted that the duty to respect standards is made easier if they are set very low at the national level and if the state is unable or unwilling to protect human rights. I drew attention to the legal reform process and that many laws, including those relevant to business and human rights such as the foreign investment law, the environmental conservation law, the environment and social impact assessment law and the procedures for implementing them are still under development. This means that there is legal uncertainty and gaps that either dissuade responsible investment or afford unscrupulous investors room to manoeuvre.

The third pillar of the nascent business and human rights regime is access to remedy and it is the least developed. Problems with the rule of law and human rights in Myanmar make national remedies ineffective and the international community is yet to adequately address remedy for corporate violations of human rights. Interestingly it was noted that investors’ rights are well protected in international law through multilateral and bilateral investment treaties while human rights remedy in this sphere remains elusive. I explained that Myanmar has been keen to engage with the international community in the area of trade and investment law, for example by signing the New York Convention on Investment Protection, but reticent concerning human rights law. I called for Myanmar to match its enthusiastic engagement with international investment law with a similar approach to international human rights law by ratifying relevant conventions such as the ICCPR and the ICESCR.

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