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Monthly Archives: March 2015

Civil society in Myanmar is quickly becoming interested in the connection between the proposed draft investment law and the regulatory ability of states to protect, promote and fulfil human rights and protect the environment. The International Commission of Jurists has written a number of public statements, press releases and op-eds (see previous pieces on this blog for details) in order to raise awareness. We have also as held training workshops in Yangon and other regions to help lawyers and CSO workers to understand this connection and advocate for better public consultation during the drafting process. The ICJ’s workshop with DICA and the MIC also focussed on this issue among others. We have been pleased with the cooperation provided by DICA and note the extension of the deadline for submitting written comments.

As noted, civil society is increasingly engaged on this subject:

http://www.mmtimes.com/index.php/business/property-news/13785-civil-society-frets-land-with-investment-law.html%C2%A0

The Consultant for the International Finance Corporation, who is supporting DICA’s drafting process has also recognised the importance of consultation.

http://sufianjusoh.blogspot.co.uk

The government of Myanmar should be commended for implementing a consultation process with civil society. However, a meeting held on January 28th with two days notice and a consultation on March 20th with a week to prepare as well as an opportunity to submit comments does not constitute an adequate consultation. Discussions with local CSOs indicate a desire to study the law and the key human rights and environmental issues at stake. They also express a perception that their views will not be taken on board.  The government of Myanmar should do more to ensure that an informed, transparent and effective consultation takes place in which civil society has genuine participation. This is an important opportunity for Myanmar to demonstrate to civil society that the law making process has changed and that genuine public participation is now the norm.

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Human Rights Watch has called on Myanmar to address the impact of its proposed investment law on human rights and to provide full public consultation.

“The new investment law will be a legal cornerstone of Burma’s efforts to reengage with the global economy and international investors, yet the government’s public consultations have been deeply inadequate,” said Jessica Evans, senior international financial institutions advocate at Human Rights Watch. “If not carefully crafted, the law could make it difficult for the government to pass regulations to protect human rights and prevent environmental harm.”

“The World Bank, IFC, and other donors and investors should press the Burmese government for much more extensive consultations on the Investment Law,” Evans said. “It’s more important for Burma to get this right than to do it quickly.”

For the full statement see: http://www.hrw.org/news/2015/03/25/burma-address-rights-impact-new-investment-law

The Nation has published a round up of the investment law reform process. It acknowledges that ‘Not every reform is without critics,’ and quotes the ICJ in the following section:

As the government consolidated its two investment laws, the International Commission of Jurists last month issued a statement, urging Myanmar to involve all stakeholders. As the resource-rich country would attract more investment in the area, key stakeholders should include affected communities and civil society, to promote a law that balances investors’ needs with human rights.

“This is a critical moment for the economic development of Myanmar. The laws it implements now will shape investment, economic development and, in turn, human rights for the foreseeable future,” said Daniel Aguirre, the international legal advisor to the ICJ.

“It is imperative that drafting is not rushed and that laws take into account international human rights laws and standards.”

ICJ has been working directly with DICA as well as with Myanmar civil society on investment laws and their potential impact on human rights in Myanmar.

While praising DICA’s willingness to consult civil society, including international non-governmental organisations, ICJ remains concerned that the draft law establishes significant rights for investors without protecting the rights of those affected by business activity. The draft would require investors to follow national laws without acknowledging that the existing national legal framework does not adequately protect human rights or provide remedies for those whose rights have been violated, it said.

Furthermore, the draft law does not establish or protect Myanmar’s ‘right to regulate’ to protect human rights or other social or environmental needs. Investment law should indicate Myanmar’s obligation to enact necessary regulations for the protection of human rights, including economic and social rights such as the right to health, in the future in order to avoid legal disputes when adopting these regulations.

“The draft law’s proposed legal framework would provide all investors the right to be consulted and challenge any new national law or regulation that may impact their profits,” said Aguirre. “This framework would allow businesses to challenge government policies aimed at addressing legitimate needs within the country, and it could create a regulatory chilling effect in which Myanmar’s government would find itself in the troubling position of evaluating whether the passage of new social policies would lead to costly lawsuits from investors.”

“The draft Law as currently formulated runs the risk of hindering progressive regulation to protect human rights in Myanmar,” said Aguirre.

For the full article see: http://www.nationmultimedia.com/aec/Myanmar-kicks-off-investment-law-modernisation-30255535.html

Fortify Rights has written an informative opinion piece in the the New York Times. ‘China has publicly distanced itself from the Kokang conflict and maintained neutrality. But Chinese-led development projects have long stoked the ethnic tensions and military conflicts in Myanmar, particularly in recent years.’ The full story at: http://www.nytimes.com/2015/03/05/opinion/how-china-fuels-myanmars-wars.html?_r=0

The justice system strives for independence but is still being subjected to influence and pressures from the government, judges said at a workshop earlier this month.

About 50 senior members of the judicial sector, including judges from the Supreme Court, and state and region high courts, attended the two-day discussion on judicial independence and integrity in Nay Pyi Taw.

Judges may no longer receive formal instructions from the government on the disposition of a case. But they say they still encounter the attitude among some civil servants that the government can and should tell the courts whom to convict, and how to punish them, they say.

“Even discussing the ways that pressure is exerted on the judiciary is sensitive,” said U Myo Thant, a high court advocate.

Nevertheless, discussions were frank – perhaps surprisingly so – at the workshop, which was organised by the International Commission of Jurists.

“Participants were very open about the serious obstacles to their independence and accountability that they face, including pressure from other branches of government and from powerful actors in cases that are politically sensitive or have high economic constraints,” said Saman Zia-Zarifi, director of the  group’s Asia and Pacific program.

For the full story see:

http://www.mmtimes.com/index.php/national-news/13205-judges-feel-the-heat-despite-steps-to-reform.html

Please see the important notice from DICA pasted below:

http://dica.gov.mm.x-aas.net 

Consultation on the Modernization of Myanmar Investment Law

ဤဥပဒေကြမ်းသည် မိမိတို့၏ ဆွေးနွေးချက်များအပေါ် အခြေခံ၍ International Finance Cooperation (IFC)မှ မူကြမ်း ပြုစုပေးထားသည့်ဥပဒေကြမ်းသာ ဖြစ်ပါသည်။ ဤဥပဒေကြမ်းအား လိုအပ်သလို ပြင်ဆင် ဖြည့်စွက် မွမ်းမံကာ မြန်မာဘာသာဖြင့် ဆက်လက် ရေးဆွဲသွားမည် ဖြစ်ပါသည်။

In order to modernize the Myanmar Investment Law, the Directorate of the Investment and Company Administration (DICA) is currently preparing a new Myanmar Investment Law with the assistance of International Finance Corporation (IFC). The draft law in English language has now been uploaded on this website and Myanmar language is also being uploaded as it become available.

Interest parties are invited to provide any comments and feedback on the draft law by email at policylegal.dica@gmail.com, by post or fax by 26 March 2015 at the details set out below:

Yangon Office: No.1 Thitsar Road, Yankin Township, Yangon
Fax: 01 658135
Nay Pyi Taw Office: Building No. 32, Nay Pyi Taw
Phone: 067 406124,
Fax: 067 406306
Mandalay Office: Corner of 26th and 84th Street, East Zay Cho Market, 2nd Floor, Chan Aye Thar Zan Township,Mandalay, Mandalay Region
Fax: 02 686660
Shan State Office: No. 139, Sat San Tun Road, Zay Pine Yut, Taungyi, Shan State
Fax: 081 2124974
Mon State Office: No. 401, Toe Chae Kan Nar Road, Mayangone Quarter, Mawlamyine Township, Mon State
Fax: 05 7 23385

The Business and Human Rights Resource Centre’s Tracking Investment in Myanmar Project has published some of their results in an op-ed in the Myanmar Times.

They ask the following question: “Do you have policies and procedures in place to prevent your business activities or investment from contributing to human rights abuses and social conflict in Myanmar?” 

For more information see: http://www.mmtimes.com/index.php/opinion/13282-how-responsible-are-foreign-investors.html

A protester shouts as Chinese funeral papers are burned in front of the Chinese embassy in Yangon on December 23, a day after a protester was shot at the Letpadaung copper mine in Sagaing Region. Photo: AFP

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