Rule of Law Key to Burma’s Reforms, Says Intl Bar Association

By SAMANTHA MICHAELS / THE IRRAWADDY| December 19, 2012 |

Street vendors carry papayas on their heads as they pass in front of the former Rangoon Division courthouse. The former courthouse will be converted into a hotel, according to local media.

If Burma wants to successfully transition to democracy, the country’s quasi-civilian government should take steps to improve rule of law, one of the world’s major legal organizations has said.

After decades of brutal military rule, Burma has embarked on a program of reforms under President Thein Sein, but many of its legal institutions are still unable to protect basic rights, the International Bar Association said on Wednesday, following a fact-finding trip to the country in August that included meetings with judges, lawyers, activists and senior politicians.
While acknowledging the country’s rapid transformation under Thein Sein, who has released hundreds of political prisoners, negotiated ceasefires with a number of ethnic rebels and started opening to the global economy, the London-based IBA noted several areas for improvement in legal practice.
“As a delegation we went with a completely open mind and were very impressed by the commitment to reform that we found,” Sadakat Kadri, part of the four-person delegation which included Philippe Kirsche QC, a Canadian judge and former president of the International Criminal Court, along with representatives from Australia, Thailand and the United Kingdom.

“There are many people on all sides of the political spectrum within the country who are genuinely trying to improve the country for the better, but we’re also aware of the many obstacles that exist,” said Kadri. “Our report contains a number of critical observations. We want to highlight those areas which are of concern with a view to improving the country as a whole.”

The delegation, from IBA’s Human Rights Institute, released a report on Tuesday about challenges and opportunities for improving Burma’s rule of law.
“The 2008 Constitution formally guarantees a number of important rights, but national institutions frequently lack the capacity to put them into effect,” the Institute said in a statement accompanying the report.

“The success of future reforms will therefore require the creation of transparent bodies and processes that practically safeguard fundamental rights for all the people of Myanmar … by providing them with an effective remedy for violations.”
Among its recommendations, the delegation called on the government to work toward international human rights standards by signing, ratifying and implementing international treaties such as the International Covenant on Civil and Political Rights, the Convention Against Torture and the Rome Statute, which established the International Criminal Court.

It also urged the government to include more people under the country’s citizenship law, which has received much attention in recent months due to ethnic violence against Rohingya Muslims in western Burma who are currently not considered citizens. In civil unrest between Rohingyas and local Buddhists in Arakan State since June this year, more than 100,000 people, mostly Rohingya Muslims, have been pushed out of their homes and into cramped refugee camps, where their movement is restricted and they lack basic provisions.

Amendments to the 1982 Citizenship Law should “maximize categories of citizenship and minimize statelessness, while ensuring that no one in Myanmar is denied their fundamental rights by reason of their status as a non-citizen,” the Institute said in the statement, adding that international organizations and foreign governments should support reform programs that help all people in Burma, not just those protected under the citizenship law.
The delegation suggested strengthening the independence and powers of existing institutions, such as Burma’s National Human Rights Commission, which Thein Sein established with a presidential mandate in September last year.

The commission lacks a statutory mandate and provisions to guarantee independence from the executive, said the report, which also urged the creation of a new legal body that can amend outdated laws and work toward consistent legal reform in line with international standards.

Responding to IBA’s report, Thein Nyunt, a senior lawyer in Burma and a member of Parliament from the New Democracy Party, agreed that changes to the legal system were crucial for successful political and economic reform.
“It’s very important to have a good justice system in our country,” he told The Irrawaddy on Wednesday, saying it was especially important to appoint unbiased, accountable judges. “In our reform efforts, we’ve struggled with problems like corruption and judges who are biased when they make sentences in court.”
He said judges often took bribes on the job, especially those appointed within the past 20 years, during the former military regime.
“We came across lots of people who complained about judicial corruption [during our trip to Burma],” said Kadri. “Lawyers within the courts and even politicians complained about it, even people close to the government. Everyone except the judges we met.”
The IBA is an organization of legal practitioners that influences development of international law reform. Its membership includes more than 45,000 legal practitioners and 200 bar associations around the world.

During their week-long fact-finding trip, the delegation met judges, lawyers, activists, NGO representatives and senior politicians, including the country’s most vocal democracy advocate Aung San Suu Kyi, who has consistently highlighted the need for legal reform since joining the country’s legislature in April after nearly 15 years under house arrest for her activism.
“Once we can say that we have been able to re-establish rule of law, then we can say that the process of democratization has succeeded,” the Nobel Peace laureate said in a speech at Yale University during a landmark visit to the United States in September, as quoted by the Associated Press.
“Until that point I do not think that we can say that the process of democratization has succeeded.”
With reporting by Lawi Weng.