I am at the 2016 Asia Regional Forum on Business and Human Rights in Doha, Qatar.
Yesterday I spoke on a panel entitled: Righting the Wrong: Challenges and opportunities in seeking criminal accountability for corporate human rights abuses in Asia.
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.