Archive

Rule of Law

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.

Judicial Accountability: 2015 Geneva Forum of Judges & Lawyers

More than 40 senior judges and lawyers from all parts of the world – including Myanmar – have made an important contribution to efforts to hold judges accountable for involvement in human rights violations and judicial corruption, by participating in the sixth annual ICJ Geneva Forum of Judges & Lawyers.

The Geneva Forum is organized annually by the ICJ’s Centre for Independence of Judges & Lawyers (CIJL) and brings together judges, lawyers and prosecutors from around the world, together with UN officials and representatives from international professional associations of legal professionals, as well as academics and other experts.

This year’s Geneva Forum (14-15 December) formed part of a larger CIJL project to promote judicial accountability, through sharing of knowledge about relevant international standards and international and national good practices, between the judiciary, other legal actors, and governments and civil society around the world.

The focus of the project is on judicial involvement in human rights violations such as unjust executions, prolonged arbitrary detention including imprisonment after deliberately unfair trials, judges providing impunity to perpetrators or enforced disappearance and torture, as well as judicial corruption that leads to human rights violations.

Victims of such violations have the right to remedy and reparation, including in relation to the role of judges, and society as a whole should be able to be confident that those responsible for such judicial misconduct will be held to account.

For more information see: http://www.icj.org/judicial-accountability-2015-geneva-forum-of-judges-lawyers/

International Commission of Jurists

 FOR IMMEDIATE RELEASE

 Date: 07/02/15 

Myanmar’s Investment Law Drafting Process at Critical Phase

As the Myanmar government enters a critical phase of establishing its new legal framework governing investments in the resource-rich country, it should continue working with all stakeholders, including affected communities and civil society, to promote a law that balances investors’ needs with human rights, said the International Commission of Jurists (ICJ).

“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, ICJ International Legal Advisor.  “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 Myanmar’s Directorate of Investment and Company Administration (DICA), as well as with Myanmar civil society, on investment law and their potential impact on the human rights of all people in Myanmar.

The International Finance Corporation, in support of DICA, has produced a Draft Investment Law designed to consolidate the Foreign Investment Law (2012) and the Myanmar Citizen Investment Law (2013) to create a level playing field for both local and foreign investors. DICA has now opened the process to civil society consultation.

ICJ conducted a workshop with DICA on bilateral investment treaties in July of 2014. In November, the ICJ submitted feedback on the Draft Investment Law providing expert analysis and flagging issues of concern.

An initial consultation on the Draft Investment Law took place on 29 January 2015. The ICJ along with other civil society organizations met with the IFC and DICA.

“The ICJ is encouraged by DICA’s willingness to consult civil society, including international non-governmental organizations, and hear concerns about investment laws and their potential to curtail important regulations designed to protect, promote and fulfill human rights,” said Aguirre. “The ICJ looks forward to formal engagement in a consultation process that will include both national and international civil society.”

The ICJ remains concerned that the Draft Investment Law establishes significant rights for investors without protecting the rights of those affected by business activity. The Draft Investment Law 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.

Furthermore, the Draft Investment 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 Investment 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. “The ICJ is encouraged that DICA has begun meeting with non-governmental groups and believes that an effective and meaningful consultation will help address key concerns about the Draft Investment Law. The ICJ looks forward to working with the Myanmar Government, with the IFC, and with all other concerned groups in order to promote a law that balances investors’ needs with human rights.”

http://www.icj.org/myanmars-investment-law-drafting-process-at-critical-phase/

A jade stone weighing up to 50 tonnes unearthed at Hpakant has focused international attention on business, human rights and the rule of law in Myanmar. The Hpakant mines supply 90% of the world’s highest-quality jade. Famous for their mineral resources, their extraction has become famous for corruption, conflict and crime rather than economic growth.

Jade mining has devastated the regional landscape with entire mountains reduced to rubble and polluted artificial lakes spoiling rivers and streams. The military has been brought in to secure the unusually large find prompting accusations of ‘the fox guarding the henhouse.’ The region has always simmered with conflict. The Kachin Independence Organization’s (KIO) peace treaty twenty years ago opened a void for lawless exploitation. The role of the military, government backed businesses and armed groups complicate investment in the region.

The Union of Myanmar Economic Holdings Ltd (UMEHL), a military-run conglomerate that dominates many sectors of the country’s economy is a key player along with, Chinese businessmen working though local proxy companies, and privately owned companies headed by government cronies.

Despite estimated yearly exports worth $8 billion, only 34 million was officially recognized. What happens to the remaining income is open to speculation but it is certainly not reinvested in the local communities.

The Hpakant mining industry presents many lessons for the current government on how not to conduct development. This type of unaccountable and irresponsible investment reflects the lack of the rule of law under the previous military regime. The government now in power has stated that the rule of law, human rights and the environment would be at the centre of current development policy.

Indeed, most of the activity at Hpakant would be illegal under newly adopted investment law that requires social and environmental impact assessments (ESIA) done in conjunction with relevant stakeholders. Some of these ESIAs have been completed in new development sites and are now available online, including the ESIA for the controversial Lapadaung copper mine.

That these ESIAs are now completed and that problems still exist reveals that the rule of law is not yet established in Myanmar. Despite the newfound transparency, Lapadaung,, and others like it, have been the centre of protests and allegations of environmental and human rights abuse. There is a gap between new laws and their implementation as well as a lack of political will to tackle entrenched corruption.

The international community demands adherence to the UN’s guiding principles on business and human rights that rest on three pillars: the state duty to respect, the business duty to respect and the provision of remedies. None of these pillars provide a solid foundation in Myanmar.

The state duty to protect human rights has been badly neglected and reforms have not gone far enough to ensure rights at the national level. Basic rights violations remain commonplace, particularly concerning land grabs associated with development projects.

The rule of law’s absence makes it difficult for investors to respect human rights as very few protections exist and human rights abuses remain common at the local level where investment takes place. It is not possible to respect human rights standards that do not exist or are not yet enforced at the national level. Ethical companies remain wary of committing in the long term under present conditions.

The national judicial system remains linked to the executive and requires resources and continued reform in order to meet international standards that would qualify as an effective remedy for business and human rights violations. The inability to get a fair trial at the national level, aside from being a human rights abuse in itself, points to the lack of an international remedy for human rights violations associated with business.

A key aspect of the rule of is legitimacy. Local people, having suffered abuses linked with economic development for at least a generation, view investors and the newly privatized government companies with suspicion and fear. They do not yet trust the legal system to protect them.

With large scale development plans going forward all over the country, this is the opportunity for Myanmar to improve its reputation, follow its own new laws and adhere to international standards of best practice. Crucially, it must ensure that stakeholder’s rights are respected and that development benefits the majority rather than the well-connected minority alone.

Myanmar is keen to promote its Special Economic Zones (SEZs) to increase foreign investment. Improved legitimacy is vital to the development of thethe government is promoting. SEZs such as the one being developed in Dawei will be the testing ground for Myanmar’s commitment to the rule of law concerning business and human rights. In fact, it may turn out that SEZs maintain higher standards than the rest of the country in order to attract cautious investors.

The Dawei SEZ was begun under the former regime in conjunction with Thai and Italian investors but has stalled due to limited investment and concerns from the local community. While certain to contribute to regional economic development, serious human rights and environmental concerns need to be addressed in order to improve the perception of investment in the area. If not, the project may provoke instability, which is toxic to foreign investment.

Already there are signs of conflict over the relocation of villagers and the failure to work with the local Karen community. Foreign investors have been slow to commit to the SEZ due to confusion over land rights, fears of unrest and perceived complicity in human rights violations. Previous impact assessments conducted by JICA have been criticized by Karen NGOs as incomplete and impartial in favor of promoting Japanese investment.

Legitimacy and stability depend on perceptions of fairness and local consultation. In order to achieve these stated aims, new ESIAs should be conducted under the new laws of the country, with parliamentary oversight and include improved local participation. The entire process should be conducted in light of the UN Guidelines on Business and Human Rights and take into account international SEZ best practice. Importantly, the role of the UMEHL and other related local businesses must be clarified to improve the confidence of investors.

National solutions and good governance based on the rule of law are required. Myanmar’s economy is at a turning point and requires foreign investment. Investors demand stability and predictability before making commitments. The rule of law should provide a stable investment environment as well as access to justice for affected stakeholders.

It is in the best interests of the country to break with the past and move forward in an open and transparent manner in which investor’s property rights and people’s human rights are ensured by the rule of law. In the future, new investment should not be shrouded in mystery. A giant jade stone should attract excitement rather than concern and local communities should relish development rather than fear it.

For more on Hpakant and Dawei see: http://www.irrawaddy.org/burma/magazine-cover-story-burma/dawei-awaits-destiny.html; http://www.irrawaddy.org/burma/karen-group-criticizes-jica-development-proposals.html

%d bloggers like this: