Authorities and Courts Complicit in Eroding Rule of Law in Kachin State

by Vani Sathisan and Sean Bain*

“The scale and severity of human rights violations in Kachin State is one of the worst in Myanmar,” a lawyer told the International Commission of Jurists during a meeting in Myitkyina last month.

Myitsone Kachin State

Visitors walk along the riverbank at the Myitsone in Kachin State in December 2015. (Wa Lone / The Myanmar Times)

Illegal large-scale land grabbing, harassment of landowners by government and business officials, and a lack of access to justice were the central complaints heard by the ICJ during the discussions with human rights defenders and civil society groups in Kachin State.

Senior state-level judicial officials signalled increased readiness to discuss ways to improve the effectiveness and independence of the courts. Yet meaningful reform also requires revising laws to bring them in line with international human rights standards, respecting judicial independence by government officials, and securing corporate legal compliance through consistent application of the law and access to fair and effective judicial review.

The conflict in Kachin State and northern Shan State, where over 100,000 people remain displaced since fighting between the government and ethnic armed groups re-started in 2011, is partly fuelled by the abundant natural resources.

Eighty percent of Myanmar’s mining operations are located in Kachin State and neighbouring Sagaing Region. Timber, rubies and gold are plentiful. A report by international watchdog Global Witness estimated the value of illegal jade mining at around US$31 billion in 2014 alone. Yet hazardous mining practises are rampant while law enforcement is haphazard. Continue reading

Myanmar: Rule of law depends on reform of Union Attorney General’s Office

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.

Students arrested in a police crackdown on their peaceful protests against the education law in March 2015 arrive for a court hearing on May 12, 2015. Lawyers and activists complain the trial is taking too long. Photo: Aung Myin Ye Zaw / The Myanmar Times

Students arrested in a police crackdown on their peaceful protests against the education law in March 2015 arrive for a court hearing on May 12, 2015. Lawyers and activists complain the trial is taking too long. Photo: Aung Myin Ye Zaw / The Myanmar Times

The attorney general is Myanmar’s 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 general’s powerful role on the sidelines of the launch for the Union Attorney General Office’s (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. Continue reading

Time for a Genuine Commitment to Rule of Law

by Vani Sathisan*

Court HammerThe world observes Human Rights Day on 10 December to mark the momentous strides in international human rights law since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. In Myanmar, recent political changes have been both momentous and transformative. Nonetheless, what was proclaimed by the UDHR as the “equal and inalienable rights of all members of the human family”, continue to be infringed upon by the arbitrary and highly subjective interpretation and application of laws, some of them dating back to British colonial times.

Successive governments in Myanmar have used overly broad or vaguely defined laws to curtail freedom of expression that is protected under international law. They often invoke the justification, typically inappropriately, of protecting national security, or to prevent public disorder or avoid outraging the religious feelings of a class. None of these efforts have served or can serve to address or respond to sectarian and religious violence.

On behalf of the International Commission of Jurists (ICJ), I have observed trials of those arrested and detained on criminal defamation charges for their Facebook posts that allegedly defame either the Tatmadaw or a political leader. One of the laws used to charge the accused is the Penal Code, first drafted in 1860.

The ICJ released a briefing paper last month highlighting how the enforcement of Myanmar’s defamation laws can result in violations of a number of international laws and standards protecting human rights, and also have an overall chilling effect on the freedom of opinion and expression and freedom of assembly in the country. Continue reading

EU Human Rights Review Panel Annual Report

The European Union Human Rights Review Panel (HRRP) has just released its fifth Annual Report. As in previous years, the Panel continued throughout the reporting period with its review of complaints of human rights violations by EULEX Kosovo in the conduct of its executive mandate in the justice, police and customs sectors.

Family member from Krusha e Vogel/Mala Krusa, 25 March 2014/ Enisa Kasemi ©EULEX

Family member from Krusha e Vogel/Mala Krusa, 25 March 2014/ Enisa Kasemi ©EULEX

In 2014, the Panel conducted five sessions and reviewed 35 complaints and witnessed a considerable increase in its case-load with the receipt of 42 new complaints. The Report details the findings of these cases and of the recommendations submitted to the Head of Mission of EULEX Kosovo to address violations of the European Convention on Human Rights.

The Panel and its Secretariat also continued with its outreach campaign in order to disseminate information about its mandate, including a TV information campaign. It concentrated its efforts primarily on the Kosovo judiciary, human rights and legal aid NGOs, civil society representatives as well as religious bodies in Kosovo.

EULEX is deployment of EU police and civilian resources to support Kosovo on its path to a greater European integration in the rule of law area. In April 2009, EULEX became fully operational. The EU Joint Action of February 2008 and Council Decision of June 2010 and June 2012 provide the legal basis for the Mission. EULEX works within the framework of UN Security Council Resolution 1244. EULEX is supported by all 28 European Union Member States and five contributing States (Canada, Norway, Switzerland, Turkey and the United States), and its mandate runs until June 2016.

The Annual Report – 2014 of the EU Human Rights Review Panel is available in the Albanian, Serbian and English languages.

iLawyer Dr. Guénaël Mettraux is a member of the Panel.

Event: The Inaugural LEAP Conference 2014

Court HammerDate: 19-20 November 2014

Venue: Law School of Tanzania, Dar es Salaam, Tanzania.

The LEAP conference will be a unique platform for expert presentations, targeting leadership in governmental and key stakeholder sectors.

It will provide platforms for expert and delegate led break out sessions on pivotal areas of interest to the continent.

The overarching discussion at the conference will focus on the effective Rule of Law in Africa in general and in relation to the following areas:

  • The extractive industries boom on the newly emergent African continent – resource curse of blessing?
  • Land Rights in the age of the African energy and agricultural surge
  • Bribery and corruption – an enemy to integrity, country profile and long term economic growth?

iLawyer Wayne Jordash QC will be one of the speakers.

For the conference booklet, click here.

If you wish to register, click here.

Legal Expertise Access Platform (LEAP) is a Not For Profit international initiative, based in Africa, that aims to transform the continent’s access to and hosting of cutting edge socio/legal thinking and practice. LEAP endeavours to become the foremost provider of innovative and multipurpose platforms to increase access to and implementation of top-level legal excellence across the continent in support of the rule of law.