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Monthly Archives: August 2016

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.

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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.

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