Myanmar – IBAHRI Report Encourages Generous But Vigilant International Support in Reform Process

By International Bar Association's Human Rights Institute • December 18, 2012

In a new report released today, the International Bar Association’s Human Rights Institute (IBAHRI) urges international organisations and foreign governments to lend crucial support to the reform process in Myanmar (Burma), but warns that any assistance must be targeted carefully so as to include all sections of the country’s population.

Baroness Helena Kennedy, IBAHRI Co-Chair said ‘Myanmar is making important strides in terms of reform, but many challenges lie ahead. Reform will require systematic change, including the creation of new institutions and constitutional amendments. Furthermore, Myanmar must confront and overcome its recent history in order for those reforms to have impact’. She advised, ‘It is vital that reform is realistically paced, so as to ensure that communities and political parties are able to move forward in a unified and productive manner’.

The 115-page detailed report entitled The Rule of Law in Myanmar: Challenges and Prospects shows that the path ahead for Myanmar is marked with both opportunities and challenges. The Report is based on research conducted by, and material gathered, during a high-level IBAHRI fact-finding mission to Myanmar in August 2012. The delegation found the country’s laws and the 2008 Constitution formally guarantee a number of important rights, but national institutions frequently lack the capacity to put them into effect. 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 – regardless of gender, ethnicity and other irrelevant factors – by providing them with an effectiveremedy for violations.

The Rule of Law in Myanmar makes recommendations to the government of Myanmar, the national parliament, appropriate judicial authorities, civil society organisations and other concerned institutions.

Its recommendations on the general protection and promotion of human rights and on legislative reform include calls on the government to:

sign, ratify and implement effectively those core human rights treaties to which Myanmar is not yet a party;
promote consultation throughout the drafting and enactment of proposed legal reforms;
promote awareness of ways in which the people of Myanmar can already protect those rights formally guaranteed by the 2008 Constitution;
undertake a systematic review of all detentions that are arguably based on political grounds; and
consider ways in which the Burma Citizenship Law 1982 might be amended so as to maximise categories of citizenship and minimise statelessness, while ensuring that no one in Myanmar is denied their fundamental rights (including the right to equal treatment) by reason of their status as a non-citizen.

On institutional changes, the report recommends that:

legislation should be enacted to strengthen the independence, diversity and effectiveness of the Myanmar National Human Rights Commission;
a permanent law reform commission should be established, with a view to the systematic revision of outdated laws and the promotion of consistency in future legislative reforms;
the Press Scrutiny and Censorship Board should be regulated in a way that promotes legitimate free expression, by allowing newspaper editors and journalists clearly to understand their existing rights and the ways in which they can challenge improper penalties imposed by the Board;
a Judicial Appointments Board should be created to promote the independence of the judiciarY;
steps should be taken to facilitate the collaboration of international human rights bodies with Myanmar’s armed forces; and
consultations should begin between all interested parties on the development of a procedure that will give voice to victims of historical human rights abuses while allowing people wrongly accused of such abuses a fair opportunity to clear their names.

On the judiciary and legal profession, the report calls for:

amendment of the Bar Council Law 1989 so as to ensure that the Bar Council once again becomes a body that represents the interests of the legal profession, rather than those of the state, the government, or the judiciary. It should provide for the majority to be elected from the ranks of advocates in independent practice, and grant other officials a role that is never more than advisory;
the development of training programmes designed to enable village chiefs to discharge their quasi-judicial powers; and
clarification for the sake of state officials and courts that customary international norms are already directly applicable within Myanmar.

On international aid and assistance, IBAHRI calls on donors:

to use best efforts to ensure that programmes of assistance are coordinated, between donors themselves and with the Myanmar authorities; and
to target programmes and funding initiatives to meet the needs of all persons in Myanmar (not just ‘citizens’), pending revision of the Burma Citizenship Law 1982.

Click here to download The rule of law in Myanmar: Challenges and Prospects, containing the full list of IBAHRI conclusions and recommendations.

Notes for the Editor

The IBAHRI report The rule of law in Myanmar: Challenges and Prospects will be launched with a high-level panel discussion at the Law Society of England and Wales on 17 January 2013. If you would like to register your interest in attending the launch, please email [email protected].
The IBAHRI fact-finding mission to Myanmar took place 11 – 18 August 2012. The mission set out to examine the progress the Myanmar government had so far made with its reforms, and the extent to which it adhered to globally prevalent understandings of the rule of law.
The delegation visited Yangoon, Nay Pyi Taw, Mandalay and Bago and met with more than 100 people, including senior politicians, civil society activists, judges, lawyers, diplomats, and representatives of a number of international NGOs. Among those officials that the delegation met were the Attorney-General, the Deputy Chief Justice and the Director-General of the Supreme Court, the Director-General of Myanmar Police, the Chair and other members of the Myanmar National Human Rights Commission, several senior parliamentarians and two advisers to President Thein Sein. The delegates also held discussions with members of the largest party outside government, the National League for Democracy, including its leader, Daw Aung San Suu Kyi and deputy-leader, U Tin Oo.
The delegation comprised:

Judge Philippe Kirsch QC, former President of the International Criminal Court, Canada;

Professor Nicholas Cowdery QC AM, former Director of Public Prosecutions of New South Wales, Australia;

Professor Vitit Muntabohrn, Professor at Chulalongkorn University, Bangkok, Thailand; and
Sadakat Kadri (mission rapporteur), Barrister at Doughty Street Chambers, UK.

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