By Daniel Aguirre and Vani Sathisan*
Recent political discussion in Myanmar revolves around the formation of a new government and selection of a president, but not enough attention is focused on the position of the attorney general, who holds a critical function in upholding rule of law and respect for human rights.
The attorney general is Myanmars most powerful legal officer: As a member of the executive, the AG provides legal advice to the President and the hluttaw, analyses international treaties, drafts and amends laws, and represents the government in judicial proceedings. The attorney general also directs the prosecutors office and ensures that cabinet actions are legally valid, in line with the constitution and international human rights law.
The International Commission of Jurists (ICJ), international donors and development partners discussed the attorney generals powerful role on the sidelines of the launch for the Union Attorney General Offices (UAGO) Strategic Plan 2015-19 in Nay Pyi Taw last week. All expressed hope that the incoming National League for Democracy (NLD) government will appoint an attorney general committed to reform, the rule of law and human rights, in line with their election manifesto promise to ensure that executive and judicial systems support the rule of law.
The new attorney general must establish an enforceable code of ethics and accountability for its law officers based on international standards. Respect for human rights and the rule of law requires the UAGO to investigate and prosecute criminal offences with impartiality and functional independence. Within the UAGO, prosecutors must be empowered to fulfill their professional duties with integrity in an independent, impartial and objective manner and in the protection of the public interest. These principles are set out in the United Nations Guidelines on the Role of Prosecutors.
Critics inside and outside the country say that the Attorney Generals Office is influenced by the military which defends vested interests and impedes an independent judiciary. The Strategic Plan, drafted by the UAGO with support from the United Nations Development Programme, entitled Moving Forward to the Rule of Law, promises an important shift in direction toward functional independence. The Strategic Plan is ambitious but establishes important benchmarks for measuring the institutions development.
The Strategic Plan acknowledges the publics low confidence in the office. This perception reflects in part the UAGOs record of ineffectiveness in tackling major problems like corruption and human rights violations while prosecuting human rights defenders and political opponents.
The Plan pledges to improve this by safeguarding the rule of law in accordance with international standards. It commits the UAGO to drafting and vetting laws that serve to protect the human rights of Myanmar people, as well as prosecuting under principles of fair trials, upholding prosecutorial ethics and accountability, inspiring public trust, and taking an active role in reform.
In order for reform to protect and promote rule of law in Myanmar, the new attorney general must show leadership and commitment to functional independence, impartiality and accountability.
The ICJ welcomes this commitment. It was clear at the Strategic Plans launch that international donors are willing to support the Strategic Plan. The UAGO, in turn, made it clear that it will work with the international community and the new government. Reform will depend on how this cooperation turns out in practice.
The UAGO must be free from unwarranted interference and, likewise, not interfere with judges in an independent judiciary. The Office of the Supreme Court of the Union has made its own commitments to independence, impartiality and accountability, and this should not be impeded. The AG should allow an independent lawyers association, such as the newly formed Independent Lawyers Association of Myanmar, to have legal powers and administer the affairs of its members.
The NLD has committed to law reform. Its manifesto emphasises the development of a system of government that will fairly and justly defend all people and establish and administer a fair and unbiased judicial system. It commits the party to amending and enacting legislation as required for the benefit of the public. It explains that the judiciary must stand independently and on an equal footing with the legislative and executive branches of government. To achieve these goals the UAGO must be reformed and the Attorney General must play a key role.
These commitments broadly match the UAGO Strategic Plan. The new, NLD-led government, and its attorney general, must work with the countrys law enforcement agencies and security forces to ensure that prosecutors can carry out their professional functions impartially. While a fully independent prosecutorial authority is preferable to one administered by the executive, states always have a duty to provide safeguards so that prosecutors can conduct investigations impartially, according to the law and in a functionally independent manner. Law officers must have reasonable conditions of service, adequate remuneration and, where applicable, tenure, pension and age of retirement. This helps to prevent corruption. The UAGO is woefully under-resourced, lacking internet communications technology, books and training.
If the NLD is to make good on its promises of the rule of law and human rights in Myanmar, the appointment of a new attorney general, committed and empowered to reforming the powerful institution of the UAGO, is essential to the reform process and will send a strong signal to the people of Myanmar.
*Daniel Aguirre and Vani Sathisan are the Yangon-based international legal advisers for the International Commission of Jurists. The article was originally published by The Myanmar Times.