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Yesterday I was asked by the Independent and the Myanmar Times to comment on the Pope’s visit to Myanmar and his use of the term Rohingya. Here is my response:

The Pope was damned if he did and damned if he did not say the word Rohingya. Although it is disappointing that he did not refer to the Rohingya by name, his visit brought attention to the human rights violations against them – calling on Myanmar to “respect the rights of all who call this land their home” – and hopefully avoided further inflaming religious intolerance amongst hard-line Buddhist nationalists waiting to pounce on language they find unacceptable.

That the international community have declined to address human rights violations against minorities and especially the Rohingya is nothing new: they long ago sacrificed the Rohingya’s right to identity in the name of engagement, particularly to ensure their ability to invest and trade. It is only the inevitable humanitarian crisis that has put pressure on the international community to act.

It is up to the diplomats in Yangon, the international community and especially neighbouring countries to use their influence with the gov’t to halt violations of human rights and protect minorities in Myanmar. It is an indictment of their previous efforts that we place so much emphasis on the Pope’s intervention.

Most of all, national leadership is required; Myanmar’s public intellectuals, religious leaders and voices from civil society need to promote a more inclusive, tolerant version of a national identity that respects human rights.

The Independent’s coverage of the controversy is here: http://www.independent.co.uk/news/world/asia/rohingya-muslims-pope-francis-burma-cardinal-no-mention-speech-address-a8080431.html

The Myanmar Times coverage is here: https://www.mmtimes.com/news/papal-appeal-defence-minorities.html

 

 

 

 

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On Saturday evening I was asked by Al Jazeera news to comment on economic aspects of the Rohingya human rights crisis in Rakhine State. Here is a summary of my comments:

Al Jazeera: Are you surprised to learn that the Myanmar government will harvest the rice crops of displaced Rohingya?

Me: No, I’m not surprised. For a government that pursues policy resulting in hundreds of thousands of displaced people land and crop expropriation is not a big leap. This is part of a national human rights problem where an estimated half of the population does not have the legal right to the land they live on; the system of land tenure in Myanmar is broken. The Rohingya will suffer, in particular, because of the widespread acceptance that they are illegal immigrants in the first place.

Al Jazeera: Is land grabbing the reason for this ethnic cleaning and conflict? Is the government trying to get a hold of not just the rice but the valuable resources in the area?

Me: Certainly relatively plentiful natural resources in Rakhine are underexploited. But this is an ethnic, religious and nationalist conflict. Land grabbing is not the cause but will likely be one of the results.

Al Jazeera: What is next for the Rohingya? What should the international community do or is it too late?

Me: Well, this situation should not be a surprise to the international community. Human Rights organisations have been warning the international community, diplomats in the country and the national government that human rights violations against the Rohingya were causing a precarious situation likely to result in violence, mass exodus and displaced people. ‘Gloomy’ warnings were disregarded as the preferred narrative was that Myanmar is ‘open for business.’

The international community needs to now support the Rohingya and ensure the cost of this humanitarian disaster does not fall solely on Bangladesh. Neighbouring countries need to encourage the Myanmar government to protect, promote and fulfil the human rights of all people in Rakhine State, especially the Rohingya, and ensure they are able to return to their land. But most importantly, leadership at the national level is required to foster a culture more accepting of human rights. This is not just the role of the government and Aung San Su Kyi:  Public intellectuals, academics, civil society organisations, lawyers and national media all need to speak out in support of human rights in Rakhine State.

 

This article appeared in the Irrawaddy on 25 May 2017 here: https://www.irrawaddy.com/opinion/editorial/use-law-protect-human-rights-environment-irresponsible-investment.html

By DANIEL AGUIRRE 25 May 2017

Burma’s 2016 Investment Law and the implementing Investment Rules issued in April 2017 create space for the government and civil society to facilitate responsible investment and exclude investors that have track records of environmental destruction and human rights abuses.

This means that affected individuals and communities must now test Burma’s commitment to the rule of law. There are new opportunities for civil society to use law to hold them accountable. In this regard, both international law and Burma’s constitution guarantee access to justice for rights abuses.

The Investment Rules instruct the Myanmar Investment Commission (MIC) to consider whether investors have demonstrated a commitment to responsible investment. In considering the good character and reputation of the investor, the MIC may study whether the investor or any associate with an interest in the investment broke the law in Burma or any other jurisdiction. The rules explicitly mention environmental, labor, tax, anti-bribery and corruption or human rights law.

What this means is that if an investor is determined to have committed a crime, has violated environmental protection standards or was involved with human rights abuses, the MIC should not grant it a permit.  If such a company applies for an investment permit, civil society should bring its record to the attention of the MIC and advocate for the rejection of a permit.

Successive governments in Burma have focused on increased investment to develop the country and improve its people’s standard of living.

At the same time, human rights and environment proponents from civil society have opposed many investment projects, citing the impact on the environment and human rights of local communities. They complain that land rights are not adequately protected, that environmental impact assessments are not implemented and that they lack access to justice for corporate human rights abuses.

There are challenges to using the law to protect human rights in Burma. Disputes related to business activity are often considered sensitive political matters in which the courts are unable or unwilling to intervene. They are reluctant to review crucial decisions of administrative bodies or to hold rights abusers accountable.

But community activists, human rights defenders and lawyers have increased opportunities to pressure the courts to apply the law and should do so. Lawyers have an important role in protecting human rights by representing local communities.

Courts must become a venue to challenge administrative decisions that allow for irresponsible investment that does not comply with national law, and where appropriate, obtain remedies and reparations for victims of human rights violations.

The Investment Law and its rules, which govern both local and foreign investment except within special economic zones, provide legal guarantees for investors to access information and protections against expropriation including compensation and access to due process if changes in regulation affect their business. Investors can also access long-term rights to use land.

Civil society should help to ensure that only responsible investors benefit from these protections. According to the law, the MIC is the gatekeeper that issues permits and endorsements for many would-be national and international investments likely to cause a large impact on the environment and local community.

In order to ensure that the protective aspects of the law are effective, courts must have some power of review, at least to ensure that administrative bodies, such as the MIC, are acting reasonably and in accordance with the law, while respecting and protecting human rights. If the MIC grants permits for companies that do not meet the requirements outlined in the Investment Rules, their decisions must be subject to review by the judiciary.

Burma’s courts have the authority to review administrative decisions, particularly through the application of constitutional writs. Lawyers can use the writs of mandamusand certiorari to secure the performance of public duties and quash an illegal order already passed by public bodies such as the MIC. This would help ensure the MIC uses its mandate to prevent irresponsible investment.

Likewise, investors that fail to respect human rights or unlawfully cause damage to the environment must be held accountable; but there are few options to do so in Burma. Criminal prosecutions against companies, actions imposing administrative sanctions, and civil suits face a variety of procedural hurdles, particularly if involving joint ventures with state run enterprises.

For example, a negligence civil suit brought by villagers against the Heinda tin mine in Dawei District was unsuccessful because the 1909 Limitations Act demands complaints to be brought within one year of damage. Section 80 of the Civil Procedure Code requires prior notice and the names of plaintiffs to be given to the government two months before filing a suit against the government and allows small procedural defects to preclude a claim. Lawyers are sometimes unfamiliar with these procedures and communities are reluctant to put their names to such cases fearing reprisals.

Clearly there are significant challenges to ensuring that investment in Burma does not adversely affect human rights. To overcome these, civil society and lawyers must engage the administration—the MIC—to ensure only responsible investments is permitted and start to use the judiciary to review its actions. Likewise, cases must continue to be taken against investors that abuse human rights and harm the environment. Powerful investors must be constrained by the confines of the law, including human rights law.

Unless civil society and lawyers can use the legal framework to address these concerns, Burma’s judicial system is unlikely to develop; lawyers will not gain valuable experience and the public will remain distrustful. The process is long and arduous but necessary to protect human rights and the environment from irresponsible investment.

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