Supporting Rule of Law in Myanmar: A Strategy for Funding Legal Change

Transcription

1 Supporting Rule of Law in Myanmar: A Strategy for Funding Legal Change Preface The mandate of this Scoping Report was to assess obstacles and opportunities for advancing the rule of law during a period of rapid democratic transition in Myanmar, and to propose an effective funding strategy aimed at strengthening rule of law institutions and supporting popular claims for human rights and justice. The report was written by an independent consultant with expertise in Asian legal systems, and commissioned by the Oak Foundation, a private grant-making foundation that supports organizations and individuals internationally seeking to: end impunity for gross violations of human rights, uphold fundamental guarantees in international law prohibiting arbitrary detention and torture and assuring due process guarantees, protect human rights defenders at risk and strengthen their capacity to be effective, multiply and amplify influential voices, especially from the Global South, on these priorities. In 2010, Oak began a limited program of support to human rights groups based at the Thai- Burmese border. Since then, unprecedented political reforms have opened new possibilities for international donors to engage strategically and constructively inside Myanmar. It is widely understood and agreed throughout the country that developing a functioning rule of law system able to protect human rights is essential if the current democratic opening is to be sustained. The strong national consensus in favor of rule of law from the government to the opposition to civil society actors has placed a spotlight on urgent questions of how to re-build Myanmar s crippled legal system and how to effectively support the public s increasingly vocal and democracy-driven demands for justice and rights. The consultant s analysis and recommendations were developed through extensive interviews conducted during five field visits to Myanmar (Oct Jan 2013). More than 40 leading figures in the justice sector were interviewed at length including human rights defenders (HRDs), lawyers, democracy leaders, community activists, academics and rights victims. Topics included the political background and context, strategic considerations, major obstacles and opportunities, best practices for rights-based work, feasible activities and methods, and short and longer term priorities for international funding. In addition, a rule of law survey was given to 35 respondents, and several focus group discussions were held with lawyers. Due to limited time and mandate, the consultant did not meet with Government officials. This report is an independent assessment and does not necessarily reflect the opinions of the Oak Foundation and its Trustees. While intended to develop practical funding strategies aligned to Oak s thematic priorities, the assessment also seeks to be a useful resource for a range of other stakeholders, including funders (state and private) considering rule of law engagement and local activists working on justice and human rights. Roger Normand, March

2 REPORT SUMMARY A: Overview This report assesses the rule of law 1 situation during a period of rapid democratic transition in Myanmar, and proposes a funding strategy to strengthen the legal system to better protect human rights and advance justice. The main finding is that, despite major challenges, conditions in Myanmar are favorable for advancing rule of law through strategic funding of bottom-up, community-driven campaigns for human rights and justice. This is mainly due to three factors: An upsurge of activism and popular demand for human rights in response to the recent political opening, The Government s continuing need to legitimize its power in the eyes of the international community and domestic constituencies through sustaining reforms, and, Ground-zero conditions for rule of law prevailing after decades of military repression (leaving significant space for immediate tangible improvements). At the same time, the report highlights major limitations of the current transitional process. Using its monopoly on power, the former junta wrote the 2008 Constitution in a way that not only provides amnesty and immunity for past crimes, but also establishes the military literally as a law unto itself, outside the authority and control of the President (and the Supreme Court). This guarantees impunity for ongoing abuses and encourages disregard for the human rights. In this way, the 2008 Constitution is not aligned to rights-based democratic governance. Placing the military outside the reach of civilian rule of law sets the stage for increasing tensions between unaccountable armed forces, elected Government representatives, and newly-empowered communities prepared for sacrifice to assert their rights. In the lucrative mining sector, for example, there are now numerous clashes between villagers mobilized to defend their livelihoods and properties, and military-owned crony companies long accustomed to using forms of violence to confiscate vast tracts of land without just due compensation. The outcomes of similar, multiplying points of contestation are likely to determine the future course of reform in Myanmar. The next three years, culminating in national elections scheduled for September 2015, will prove a critical foundational period. 1 The rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." Report of the UN Secretary General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. 2

3 International donors can play an important role by supporting local movements for human rights and genuine democracy, especially in poor rural communities. Meaningful advances in the rule of law presuppose a somewhat functional legal system, which does not as yet exist in Myanmar. Progress in law reform may be rapid, but implementation on the ground will be much slower and step-by-step. The report identifies several broad areas where international support would be useful, including strengthening key actors in the rule of law section such as, Government agencies (such as the Attorney General s Office and the executiveappointed National Human Rights Commission) Parliamentary bodies (such as the Rule of Law Committee), Independent professional associations for lawyers, paralegals and judges, Law schools and training institutes and, Legal aid and pro bono projects. Based on past experience from other countries prioritized for global funding, over the next few years Myanmar will receive large multi-year international grants to support rule of law activities, especially government-led training and workshops and brick-and-mortar projects. In similar programs throughout Asia, government actors tend to attract the lion s share of funds, often with very disappointing results. In recent decades, Pakistan and Cambodia have together absorbed over one billion dollars in rule of law/access to justice funding without discernible improvement in the lives of ordinary people. A major reason for this pattern of failure is a lack of authentic connection to demand-driven community claims for justice. Popular awareness and advocacy is often critical to ensure that government is held accountable, human rights trainings are made useful, and, overall, the legal system works more fairly in practice. Even small steps in this direction will benefit from an engaged citizenry. Because the most active communities and advocates tend to be poor and removed from the limelight, however, their struggles tend to be overlooked by traditional funding mechanisms. A better approach for international donors is to focus on (and measure) substantive justice outcomes and inter-link support for public, private, civil society, and professional pillars of the rule of law system, paying close attention to community-based demands for justice. The idea is to make the legal system work through legal practice, which will in the process expose the flaws in the system and lead to public demands for improvement. When imagining this virtuous cycle in Myanmar, people would voice complaints, advocates gather evidence and file petitions, judges render decisions after public hearings with opposing views fully aired, and the whole (currently dysfunctional) process is transparent to public rights-based forward-thinking constructive critique and further development. As an approach, progressive donors interested in supporting rule of law in Myanmar are therefore suggested to focus on the non-governmental advocacy sector, especially 3

4 community-based HRDs and lawyers, many already standing with local groups at the forefront of human rights controversies. With little or no outside support, a growing number of HRDs, lawyers & lawyers associations, civil society and community groups nationwide are already campaigning against land-grabs under the banner of human rights and rule of law, yet lack training, capacity or financial means to be effective. They are routinely denied permits to peaceful assembly and are at risk of arbitrary arrest when they do so, yet continue to fight for rights guaranteed in the new Constitution but not yet implemented in practice. The recent national campaign sparked by local opposition to a military-owned copper mine at Letpadaung (Monywa) demonstrates the emerging mobilizing potential of this communitylinked approach. The report recommends key areas for supporting similar types of non-governmental grassroots justice work: Action-oriented training and capacity-building workshops for HRDs, lawyers and affected communities to improve legal knowledge and practical documentation and advocacy skills, with an emphasis on relevant domestic as well as international law, Legal petitions, strategic litigation and advocacy campaigns based on thorough research, Information-sharing and networking to strengthen professional associations and popular awareness of and support for justice, and, Physical and mental rehabilitation services for thousands of torture victims who passed through Myanmar s notorious prison system. B. Background and Context: 1. Political history Myanmar is a relatively highly populated country, with 55 million people, but also one of the poorest, with 26% of the population living below the poverty line. Burma (as it was then called) won independence from Britain in 1948 under the leadership of General Aung San, who was assassinated weeks later with his entire cabinet. After a period of semi-democratic governance, the military under General Ne Win staged a coup in 1962 and subsequently ruled directly for 50 years. A national democratic movement against the military propelled Aung San Suu Kyi and the opposition National League for Democracy (NLD) to a landslide electoral victory in 1988, but the military junta led by General Than Shwe annulled the elections, suppressed the popular movement and held Aung San Suu Kyi under house arrest for 20 years. The junta was officially dissolved in 2011 following a general election in 2010, and a civilian government installed, although the military retains enormous influence. 2. The Democratic Opening In the past two years, the government has embarked on an unprecedented transition to a democratic system, ostensibly based on rule of law. This is a dramatic shift in course after a 4

5 half century of isolationist rule by a repressive military junta which transformed a country rich in natural resources, with an educated population, into international pariah state with acute economic challenges. The rapidity of the democratic transition has taken most observers by surprise. It is unusual for a military autocracy with a longstanding ideological commitment to fighting Western imperialism, to undertake such a rapid about-face and adopt the political model of its former adversaries. Indeed, Myanmar is breaking the mold. The remarkable progress of the past two years has been hailed internationally and supported throughout the country. The list of achievements includes: forming a new government, legalizing political parties, holding relatively free and fair parliamentary elections, revoking and revising many repressive laws, pursuing peace talks and cease fires in longstanding ethnic conflict areas, releasing thousands of political prisoners, establishing the parliamentary Rule of Law Committee and the National Human Rights Commission, expanding diplomatic relations, and liberalizing the economy to encourage foreign investment. Western countries have welcomed these reforms and rewarded the government by lifting economic sanctions and waiving billions of dollars in debt. Perhaps most remarkable is the broad national political consensus that has emerged in favor of the rule of law as the cornerstone of sustaining democratic progress. President U Thein Sein, a former general who heads the military-backed ruling Union Solidarity and Development (USPD) party, has purged hard-liners and urged the government to embrace the rule of law in similar language as opposition leader Aung San Su Kyi, who declared the rule of law to be the NLD s leading campaign priority. This surface consensus masks significant differences concerning the actual content and, especially, the intended enforceability of the rule of law. Nevertheless, the shared political rhetoric has awakened public expectations and encouraged a democratic revival in Myanmar, notably in terms of in terms of burgeoning freedom of the press, speech and peaceful assembly. The new democratic space has been occupied and expanded by civil society, especially youth groups. Previously under direct threat of arrest, torture and illtreatment, civil society groups are now able to organize press conferences and criticize aspects of the government s human rights record. Key questions, however, remain. How deep-rooted and sustainable are these changes? Do the political reforms reflect a new balance of power on the ground, or will the armed forces continue to be allowed to operate with impunity? What measure of actual political power do pro-democracy forces enjoy in the government? What is the impact of rule of law on people s daily lives, especially outside Yangon? What happens when citizens aspirations run up against the deployment of military force to protect lucrative economic monopolies? In order to develop an effective rule of law strategy in Myanmar, it is important to address these questions and to understand the dynamics that led the junta to give up formal political control in the first place. 5

6 3. Junta s Road-Map to Democracy The persistence and dedication of the pro-democracy movement was an important factor maintaining pressure on the junta since However, most analysts interviewed for this report believe that the current transition process has been driven primarily by the junta itself, through a planned process designed to maintain the key pillars of military power throughout the political transition. The junta s strategic aim was to reap the economic benefits of opening the country up to foreign investment and increased trade while avoiding being held accountability for past crimes and other abuses. Thus the generals needed an exit route from formal politics that would ensure continued power, wealth and immunity from prosecution, In 2003, junta leader General Than Shwe tasked General Khin Nyunt, his chief of military intelligence, with developing a roadmap to democracy which would ensure the military s predominant role in the political transition. In retrospect, the ongoing reform process has closely tracked the major steps planned in the road map. Key steps included drafting a new constitution to entrench military power within a pseudodemocratic framework, forming a new civilian government under the USDP party (led by former high-ranking officers), retiring the junta leaders from the public eye, and staging elections in staggered steps to ensure military control of parliament at least until This process has created three inter-linked but distinct military factions: General Than Shwe and his extensive influence networks and monopoly business interests, the formal military chain of command under the serving Commander-in-Chief, and the new reformist faction led by the President and comprised of former senior officers now serving the USDP (with crony networks of their own to tend). The road map and subsequent political opening enabled the junta to end decades of international sanctions and reduce increasing dependency on China. As Asia has grown in power after the end of the Cold War, the strategic value of Myanmar has increased accordingly. The much-publicized American pivot to Asia, and the EU s desire for new markets, created an opportunity for Burmese leaders to reduce over-reliance on one foreign power and benefit from dramatic economic opportunities. 4. Legal background and report s main findings Interviews with a wide range of experts painted a bleak picture for rule of law in Myanmar. The legal system remains in a gravely weakened state, with the main pillars of the rule of law judges, lawyers, courts, law schools, professional associations, and the separate branches of government having been systematically attacked and repressed since military rule was imposed in (Especially since 1988, independent lawyers have been jailed and disbarred, law schools shut down, curricula re-written and degraded, new knowledge kept out, and judicial independence subordinated to the military chain of command). As a result, the legal system suffers from high levels of corruption, cronyism and public distrust, and there is a need to re-build rule of law institutions from the ground up and establish new and independent associations of judges and lawyers capable of upholding international standards and defending professional integrity. Law schools and legal education more broadly also require large investments of human and financial resources. 6

7 Watchdog bodies such as the parliamentary Rule of Law Committee and the National Human Rights Commission have been established but lack the mandate and resources to respond to thousands of complaint petitions that have flooded into their offices. The new branches of government lacks clarity about their separate power and the specter of a powerful military granted legal impunity by an anti-democratic Constitution hangs over the entire political transition. Responses to the rule of law survey were remarkably consistent, demonstrating a broad national consensus on priority rule of law issues, and highlighting the centrality of several recurring themes. Following is a summary analysis of the survey responses: Justice cases considered important for rule of law in Myanmar: Land confiscation and disputes over natural resource extraction were listed by over 95% of respondents, who felt that currently, the law offered no protection to aggrieved villagers. Financial corruption was listed by 87% of respondents, with examples provided involving public and private transactions, in connection with development and the legal professions. Constitutional change and law reform was prioritized by 80% of respondents, with examples focusing on provisions that entrenched unelected military power and deprived Aung San Suu Kyi of the chance to stand for President. Difficulties and challenges in pursuing justice cases: Training, education and qualification for lawyers, judges and prosecutors were listed as the biggest challenge by all respondents. Examples included the lack of funding for law schools resulting in lack of resources and the fact that judges and lawyers were chosen based on military patronage alone. Surprisingly few raised the issue of intimidation by the military or police. Lawyers did not feel constrained from bringing cases on political grounds, but cited systemic corruption and incompetence, the impunity of powerful actors and the lack of public faith in the integrity of the legal system. Donor support strategies to advance justice in Myanmar: Education and training programs for lawyers, judges, paralegals and community members were prioritized by 95%. Trainings were requested that focused on domestic rather than international law to make up for a lack of basic trial advocacy and procedure skills. All lawyers supported a follow-up mechanism to trainings that would provide funds and capacity support to pursue cases, despite the flawed legal system, which would force judges to professionalize their conduct and improve standards. Networking was cited as crucial to strengthen the professionalism and independence of judges and lawyers, particularly in view of the junta s previous interference with bench and bar associations, forcing the leadership to be complicit in repressing it s members. C: Recommended Funding Strategy 7

8 The priorities of Oak s human rights programme are relevant in Myanmar, where a primary challenge is to protect and expand the space granted to HRDs so that they can continue to lead popular campaigns to remedy rights violations and seek an end to impunity. The report proposes four main themes for funding: Training & capacity for HRDs support for rights-based research and documentation, and strategic litigation and advocacy Support for rule of law networks seeking to advance Oak s thematic priorities Support for and rehabilitation of torture victims. Given the current unfeasibility of direct efforts to hold the old regime accountable for past violations, this combination of training, documentation, and advocacy is the best strategy to achieve the goal of ending impunity - while also building much-needed advocacy capacity. There is a need for large-scale, targeted legal education and training for lawyers, judges, prosecutors, paralegals, and media, as well as ordinary communities facing rights violations. Rather than provide abstract legal knowledge and materials, action workshops would: a) link human rights to relevant national and local laws, b) focus on case-study methods with local examples, c) require follow-up action from participants to demonstrate competence in the area of training, and d) target materials to different audiences, such as legal professionals, community-based HRDs, and journalists. For example, action workshops for lawyers would be technically rigorous (on habeas or due process rights, for example) and include a practical follow-up requirement to bring a related case and discuss the results in a follow-up workshop. Support for strategic litigation and advocacy campaigns was a top priority identified by survey respondents, and the most glaring gap in portfolios of like-minded donors such as OSI. Many lawyers and firms reported that they need financial support to bring cases but did not know where to access such funds. This theme could also be used to fund groups from the border moving inside Myanmar, thereby enabling their documentation efforts to be used to support legal cases and policy reform advocacy. The main difficulty facing donors would be getting a large number of small grants into the hands of the lawyers and communities doing work on the ground. After years of being prevented from gathering in groups, activists are eager to network and share strategies. This is especially important for lawyers and judges who have for decades been deprived of independent professional representation. With no funding or support, lawyers are already forming groups to fill the representation gap. There is strong potential for these emerging networks to play a leading role in human rights research, litigation, and advocacy. They have prioritized rule of law, intend to establish active departments to pursue justice work, and would benefit a great deal from financial support and help with capacity building. A national program of torture rehabilitation is a powerful idea in Myanmar, where thousands of HRDs have suffered torture and imprisonment since Due to 8

9 cultural and financial reasons, there is little practical support for torture victims despite widespread sympathy. Throughout the country, there is a need not only for medical and psychological rehabilitation, but for a national forum to maintain prisoner networks around common concerns. Such program could be housed in, or associated with, a group of hospitals and health clinics. 9