MYANMAR RULE OF LAW UPDATE APRIL 2016

PROMOTING THE RULE OF LAW PROJECT

MYANMAR RULE OF LAW UPDATE

USAID

PROMOTING THE RULE OF LAW PROJECT

Task Order No. AID-486-TO-13-00008

CONTRACTOR: TETRA TECH DPK

DATE: MAY 4, 2016

This publication was produced for review by the United States Agency for International Development. It was prepared by Tetra Tech DPK. The authors’ views expressed in this publication do not necessarily reflect the views of the United States Agency for International Development or the United States Government.

Table of Contents

Executive Summary 1 1. Introduction 2 2. Context 2 3. Overview of the Current Legal Structure 2 3.1 History and Structure of the Justice Sector 2 3.2 Division of Responsibilities in the Justice Sector 3 4. Citizen Justice Needs and Perceptions of the Justice Sector 4 5. Public Legal Awareness and Access to Legal Information 5 6. Compliance with Fair Trial Standards 5 7. Legal Framework 6 7.1 Justice Sector Legislation 6 7.2 Legislation Intended to Extend Government Security and Control 7 7.3 Mechanisms for Review of the Legal Framework 7 8. State Institutions 8 8.1 Judiciary 8 8.1.1 Judicial Independence 8 8.1.2 Judicial Qualifications and Training 10 8.1.3 Judicial Corruption 11 8.1.4 Facilities and Public Access 11 8.1.5 Planning and Management 12 8.1.6 Constitutional Tribunal 12 8.2 Union Attorney General’s Office (UAGO) 13 8.2.1 UAGO Structure 13 8.2.2 Legislative Vetting 13 8.2.3 Prosecution, Prosecutor Recruitment, and Professional Development 14 8.2.4 Administration 15 8.2.5 Legal Advisory Board 16 8.3 Other State Institutions 16 8.3.1 National Parliament and Legislative Process 16 8.3.2 Ministry of Home Affairs (MOHA) 16 8.3.3 Human Rights and the National Human Rights Commission 17 8.3.4 Anti-Corruption Bodies 18 9. Non-State Institutions and Systems 18 9.1 Legal Profession 18 9.2 Legal Aid System 19 9.3 Legal Education 20 9.4 Informal Justice/Mediation/Arbitration 21 9.5 Civil Society 21 10. Gender Concerns 22 11. Current Donor Engagement 23 Figures and Addendums Figure 1: Division of Legal and Justice Functions Addendum 1: Recommendations for Future USG Rule of Law Engagement

Acronyms CSO Civil Society Organization GAD General Administration Department GBV Gender-based violence IBAHRI International Bar Association Human Rights Initiative ICJ International Commission of Jurists ICT Information and Communications Technology IDLO International Development Law Organization JICA Japanese International Cooperation Agency MOHA Ministry of Home Affairs NLD National League for Democracy OSCU Office of the Supreme Court of the Union SLORC State Law and Order Restoration Council UAGO Union Attorney General’s Office UCSB Union Civil Service Board UNDP United Nations Development Programme USAID United States Agency for International Development USAID-PRLP USAID-funded Promoting the Rule of Law Project USDP United Solidarity and Development Party USG United States Government

Executive Summary Promoting and protecting the rule of just laws and civil liberties is fundamental to the success of Myanmar’s democratic transition. The country’s legal sector was once highly respected, but after the 1962 military coup, the decades of neglect and subjugation to the state that followed took its toll. When the USAID-funded Promoting the Rule of Law Project launched in October 2013, the legacy of this history was still manifest. Deficiencies included a continued lack of judicial independence, excessive concentration of power in the Union Attorney Generals’ Office (UAGO), reports of endemic justice sector corruption, deep citizen mistrust of formal justice sector institutions, lack of an independent bar association, a weak legal education system, limited protections for criminal defendants, non-existent technology, and lack of access to legal information for justice actors and the public alike. Human rights abuses, including reliance on coerced confessions, were still widely reported. Civil society lacked capacity to advocate for rule of law and justice sector reform and had sparse opportunities to participate in law and policy reform processes. A number of steps have been taken towards developing a modern legal and justice sector and supporting justice actors to adjust to their changed roles in a democratic system based on separation of powers. The Judiciary and the UAGO have adopted strategic plans and laws governing the sector have been enacted.1 A strategy for strengthening judicial ethics and professionalism has been formulated by Supreme Court leadership. The UAGO and Supreme Court have expanded training of judges, court staff, law officers, and prosecutors. Courthouses are being renovated or rebuilt with design standards that improve public access and protection of victims. Legal assistance for the poor has expanded and improved in quality. Lawyers have formed a national bar association. Rule of law programs and services offered by civil society organizations have increased with donor support. While the momentum is positive and a foundation for broader reform is being created, much more work is needed to bring the justice system into the 21st century. The division of responsibilities across justice sector institutions needs to be revisited. Judicial independence needs to be strengthened through reforms to judicial appointment processes. Criminal justice laws require review against fair trial standards. Salaries must be raised as part of a broader program to address corruption. Law schools require reform and access to legal information needs expansion. The Office of the Supreme Court’s pilot court efficiency and access programs need to be replicated nationwide. The courts and prosecutors are also in need of modern technology to promote efficiency and accountability. Training curriculum for judges, prosecutors, and administrative staff requires further updating. A new legal aid law has been developed to improve access to legal representation by vulnerable groups; however its implementation poses significant practical and financial challenges. Civil society organizations require more support to expand their technical and organizational capacities and to increase their ability to work with each other and the government towards desired goals. Justice sector reform merits high priority for the new government given its importance to Myanmar’s democratic development, combatting corruption, promoting inclusive economic growth, and protecting human rights. The recent victory of the National League for Democracy presents an opportunity to tackle core reform issues, including justice sector corruption, and accelerate the pace of modernization in the justice system. To this end, a collaborative and inclusive justice sector policy planning mechanism should be developed at the outset of the new government to build consensus, set a strategic course, and ensure buy-in and ownership of all affected stakeholders. Sector-wide planning will benefit from, and should build upon existing strategies that have been adopted by the Union Attorney General’s Office and Judiciary based on careful needs analysis.

1 Laws that have been recently enacted include the Myanmar Arbitration Law ( Law No. 5/2016, enacted 05/01/2016) and the Law on Legal Aid (Pyidaungsu Hluttaw Law No. 10/2016, enacted 18/01/2016). 1

1. Introduction The report aims to summarize the most significant justice sector reform issues as the National League for Democracy (NLD) assumes government leadership in April 2016. This concise report focuses primarily on the Judiciary and the Union Attorney General’s Office (UAGO), briefly touching on other areas pertinent to justice sector reform and rule of law promotion, including law reform processes, human rights, legal aid, the legal profession, and legal education. USAID’s Promoting the Rule of Law Project prepared the report over a two week period based on information in the project’s possession from activities conducted in Myanmar over the past two years, desk research, and targeted interviews with individuals knowledgeable about the justice sector. Due to space and time limitations, this report is not a comprehensive country rule of law assessment examining all facets of the justice sector, and it does not consider either law enforcement or correctional institutions. It is hoped this report, considered within these constraints, will be a useful reference as institutions develop their strategies for promoting rule of law reform in the next phase of Myanmar’s democratic transition.

2. Context Five years since it embarked on its transition to democracy, Myanmar, a nation of 51+ million people2, continues to face challenges, including widespread poverty, an underdeveloped economy, and weak government capacity. The past few years, however, witnessed an increase in personal freedoms and an increase of investment and foreign assistance. The National League for Democracy (NLD) party’s landslide victory was a historic milestone for greater freedom and opportunity, bringing the country its best chance in 50 years to make progress. Nevertheless, while the country has made progress toward greater political, economic, and social freedoms, years of military rule, lack of government capacity, economic instability, and decades-long conflict present significant challenges to the new government.

3. Overview of the Current Legal Structure Myanmar was administered as part of colonial India until 1937. The legal system of Myanmar is a unique combination of the customary law of the family,3 codified English common law, and recent Myanmar legislation. The principles of English common and statutory law were introduced through the British law codes of the pre-independence India Statutes. These statutes, based on and incorporating English statutes and common law, include the Contract Act (1872), Evidence Act (1872), the Codes of Criminal and Civil Procedure Code (1861 and 1873, respectively), and the Penal Code (1860). Where there is no statute regulating a particular matter, courts are to apply Myanmar’s general law, which is based on English common law as adopted and molded by Myanmar case law. The Burma Laws Act (1898) required, in the absence of clear relevant statutory general law, for courts to decide the matter on the basis of justice, equity, and good conscience.

3.1 History and Structure of the Justice Sector Prior to 1962, the justice sector’s organization was heavily influenced by the British system and both the Judiciary and legal profession enjoyed a prestigious reputation. On January 3, 1974, however, the one-party Constitution of the Socialist Republic of the Union of Burma, drafted by the Revolutionary Council,4 came

2 2014 Myanmar Population and Housing Census (Myanmar Ministry of Immigration and Population, May 2015). 3 The beginning of the formal judicial system in Myanmar can be traced back to the Bagan dynasty (849-1287 A.D). During this time, law consisted of legal texts, orders, and judicial decisions known as dammathats, yazathats, and phyahtons. Dammathats compiled collections and records of social customs. Written by monks and scholars, they were similar to the customary laws of the land and codified legal rules and principles for civil matters. Dammathats are still in use today in some personal and family disputes. Yazathats were the orders of the king and resembled legislation. Phyathtons were the records of judicial decisions rendered by various monarchs and judges. Under the monarch system, criminal cases were considered by state administrative officials while civil cases were considered by judges appointed by the king, or by arbitrators chosen by the parties. Nang Yin Kham, An Introduction to the Law and Judicial System of Myanmar, (Center for Legal Asian Studies, National University of Singapore, March 2014). 4 In 1958 General U was asked to serve as prime minister in a caretaker government after the administration of former Prime Minister U Nu proved incapable of suppressing ethnic insurgencies across the country. U Ne Win held 2

into effect and transformed the judicial system into a socialist model. The Supreme Court and the High Court were abolished and in their place the Central Court (the highest appellate court) was established, as well as various inferior courts at the state, township, ward and village tract levels.5 A Council of People’s Justice was also created, which entailed participation of the working people in all level of courts. In 1988, the State Law and Order Restoration Council (SLORC) promulgated the Judiciary Law, reorganizing the courts. This was repealed by the Judiciary Law of 2000 which once again restructured the organization of the court system. Most recently, section 293 of the 2008 Constitution provided for the establishment of an independent judiciary, including three primary components: (1) civilian courts: Supreme Court of the Union, High Courts of the Region, High Courts of the State, Courts of the Self-Administered Division, Courts of the Self- Administered Zone, District Courts, Township Courts and other Courts constituted by law; (2) Courts martial; and (3) the Constitutional Tribunal of the Union. The Attorney General of the Union is an ex officio member of the government, appointed by parliament after nomination by the president. The Attorney General of the Union Law of 2010 lists 17 duties and seven powers extending from ‘performing the duties of a member of the Union government,’ to representation of the State in all cases and appeals, prosecution of criminal cases, and tendering of advice to all branches and organs of government. Whereas the UAGO is part of the President’s Cabinet of Ministers, the , the Prisons Department, and the General Administration Department (GAD) fall under the Ministry of Home Affairs (MOHA).

3.2 Division of Responsibilities in the Justice Sector Rule of law proponents have raised broad structural questions about the justice sector and the concentration of power in the UAGO in particular. The UAGO is the legal representative of the government and oversees the public prosecution service, and the Attorney-General is the chair the Bar Council which regulates, licenses and supervises the legal profession.6 There are concerns that the department’s deep integration into the executive branch undermines the independence of the legal profession. Some international organizations have advocated for the establishment of a separate, properly organized Ministry of Justice capable of promoting the Judiciary’s interests within the government while tempering concerns of improper executive interference in the Judiciary.7 Though the prosecution of offenses is inherently an executive function, due to Myanmar’s history of military regime manipulation of the criminal justice system, some have advocated that prosecutorial impartiality could be enhanced by the establishment of an independent public prosecution service (even if structurally still under the UAGO). This would reduce perceptions of politicized prosecutions. An independent prosecution service would also provide more effective management of prosecutors, as prosecutors reportedly receive inadequate policy and procedural guidance from the UAGO under the current structure. The 2010 Attorney General of the Union Law shifted responsibility for legislative drafting from the UAGO to the Union ministries. The ministries’ legal drafting capacities are often weak, and currently ministries may not seek assistance from UAGO law officers on legislative drafting. Therefore, re-consolidation in the UAGO has been suggested, as has the creation of an independently functioning legal drafting technical unit similar to the Office of the Parliamentary Counsel in the United Kingdom. Even if the technical unit remained under the Attorney General’s supervision, ministries could enlist its legislative drafting expertise with the goal of improved quality of the legal and regulatory framework. Article 24 of the 2010 Law on the Judiciary provides that the “Supreme Court of the Union is entitled to submit the bills relating to the Judiciary to the Pyidaungsu Hluttaw in accord with the stipulated manners.” The Office of the Supreme Court of the Union (OSCU) reads this to require that laws related to the Judiciary are to be drafted by the OSCU, though some commentators believe that the translation is not accurate, and that

general elections in 1960, stepping down that same year after U Nu’s reelection, and the restoration of parliamentary government. However, on March 2, 1962, U Ne Win carried out a coup d’état, imprisoning U Nu and establishing the Revolutionary Council of the Union of Myanmar, whose members were drawn almost exclusively from the armed forces. 5 See, supra, Nang Yin Kham, An Introduction to the Law and Judicial System of Myanmar. 6 Bar Council Act (1929), as amended 1989. 7 IBAHRI and the International Commission of Jurists have each issued reports in recent years advocating the creation of a Ministry of Justice. 3

the original intent was to give the Supreme Court the mandate to draft legislation specific to the Judiciary and the ways in which courts function, such as the civil procedure code. The OSCU has instead applied a far broader reading of this provision, and concluded that a total of 52 laws are part of its legislative drafting mandate, including not only laws specific to the Judiciary, such as the Evidence Act, but also laws concerning property, marriage, and insolvency. Under separation of powers as set forth in the Constitution Article 11(a), a legal challenge could be made based on the Judiciary’s issuing decisions regarding the legality of legislation it drafted.8 Some have advocated the establishment of a national law reform commission, an independent advisory body with broad membership from the public and non-governmental sectors, including academia, as a preferred approach to law reform. As described further in Section 7.3, such a model would temper separation of powers concerns while reducing political interference in the law reform process.9 The Supreme Court is also charged with implementation and administration of the new legal aid law, which in an independent judiciary would typically be handled by a Ministry of Justice or an independent body. As described in later sections of this report, the Ministry of Home Affairs, and its General Administration Department, takes on some adjudicative and legal enforcement activities that are typically the domain of justice sector institutions. At times, confusion has resulted about division of responsibilities of justice sector institutions. For example, it is unclear which entity makes the ultimate decision concerning lawyer discipline. UAGO representatives have suggested that the Bar Council’s own executive board has authority to render decisions and take whatever actions are deemed appropriate. Judges in the Supreme Court, however, assert that disciplinary action falls within their purview. These apparent contrasting views of wherein responsibility lies helps explain why several practicing lawyers consider existing disciplinary procedures to be insufficiently transparent.

FIGURE 1. DIVISION OF LEGAL AND JUSTICE FUNCTIONS FUNCTION PARLIAMENT UAGO JUDICIARY MOHA MINISTRIES Dispute Resolution X X Law Enforcement X X Original Law Drafting X X X Law Review/Revision X X X X Bar Licensing/Oversight X X

8 Whereas in many countries judiciaries have the right to review and comment on draft legislation, it is generally viewed as counter to separation of powers principles for the court system to draft or re-draft legislation as it is at odds with a judge’s role to neutrally interpret and apply the laws. 9 Examples of law reform commissions relevant to the Myanmar context are Malaysia and South Africa. 4

4. Citizen Justice Needs and Perceptions of the Justice Sector The frequency of legal disputes in Myanmar is significant. A 2014 written survey of over 200 citizens found that 71% Caseload and Common Cases in of respondents or their families had been involved in a legal Myanmar’s Courts dispute (55% had experienced land disputes, 25% National Case Filings (2015): 821,222 inheritance, 20% involved criminal matters, 20% other family problems, 16% business disputes, and 9% violence Criminal Cases against a woman or child).10 However, after 50 years of  Hurt 12% military control, Myanmar’s citizens have come to see the  Public Nuisance 11% law as a tool of repression rather than a safeguard of their  Accident 10%  fundamental rights and freedoms. The most recent World Theft 9% Civil Cases Justice Project survey confirmed citizens are highly  distrustful of the justice system.11 Citizens are far more Money Claim 48%  Land Dispute 16% likely to seek help from village or community leaders,  Illegal Tenancy 11% family members, religious leaders, civil society organizations (CSOs), or from a private lawyer or political Source: OSCU statistics; USAID-PRLP closed case party12. Although there was low satisfaction when seeking survey in three pilot courts (Nov. 2014) help from the courts, a majority of respondents considered judges to be competent, if not very honest13. Equal access to justice is also problematic. The majority of respondents indicated they believe the poor will never receive equal treatment in the formal justice system and a third said those charged with a crime will not be treated fairly. Ethnicity, religion, age, and gender also were cited as reasons for discrimination and bias in the justice system.

5. Public Legal Awareness and Access to Legal Information Recent USAID surveys indicate that most citizens have only basic legal awareness to protect and enforce their rights.14 While 88% of respondents said they know where the nearest court is, and 79% said they know how to find a lawyer, only 51% know where to get information about laws and their rights. Only 42% know their rights under civil and criminal law, and 48% know organizations that provide free legal assistance. Low legal awareness in the general population is not surprising given the limited resources available to the Judiciary themselves. Access to laws, court decisions, and other basic legal information – for judges, prosecutors, attorneys, and citizens alike – is exceptionally restricted. Local courts often lack even basic legal resource materials such as statutes and case law. In addition to resource constraints resulting from inadequate funding, current law also prohibits the publication of draft legislation. Past assessments have recommended the construction of a publicly accessible and searchable database of laws, regulations, orders, judicial opinions, and proposed legislation, and the adoption a Freedom of Information Act, though such efforts would need to

10 The survey was conducted by USAID-PRLP using a multiple choice questionnaire in three workshops in , Taungoo, and Kayin with lawyers, civil society, and community-based organization representatives. The survey had 204 respondents. 11 See www.worldjusticeproject.org. Myanmar ranks 92 of 102 countries, with very low ranking on every category except Order and Security. The survey scores are based on a questionnaire completed by Myanmar citizens. 12 According to the USAID-PRLP survey, 25% of respondents did not seek help from anyone, 24% sought help from village or community leaders, 16% from family, 7.5% from religious leaders, 7.5% from civil society organizations (CSOs), and 5.5% from a private lawyer or political party.

13 Respondents were highly dissatisfied with the courts (11% satisfaction), police (20%), and prosecutors (29%). However a majority of respondents found the judges were competent, and more competent than prosecutors, lawyers, legal aid lawyers, and even CSOs, village leaders, or political parties. However perceptions of honesty of formal justice actors are very low. Only 20% believed judges to be honest. Court staff are considered to be even less honest (13% found them to be honest).

14 USAID-PRLP Legal Knowledge Survey using a written questionnaire, and conducted during PRLP-provided trainings and some grantee provided trainings in Yangon, Taungoo, Loikaw, and Mawlamyaing in late 2014 and early 2015. Participants were attorneys, community paralegals, activists, and representatives of CSOs and community-based organizations. 5

be paired with public legal education efforts to be useful.15 A number of organizations are now offering free legal aid and paralegal services around the country, though not all geographic regions are covered and some organizations report they are unable to meet the high demand for their services.16

6. Compliance with Fair Trial Standards Fair trial standards are generally guaranteed constitutionally or otherwise,17 but unevenly applied in practice. Conviction rates are estimated at 90 to 95 percent and lawyers report convictions are based almost exclusively on confessions and police testimony.18 Routine cases are often delayed inordinately based on the failure of police to appear at trial to provide testimony, and common understandings of evidence collection, testing, and controls are few. There is a widespread misunderstanding that not all elements of a crime must be proven in order for there to be a guilty verdict.19 International experts agree that a significant overhaul of the penal code and code of criminal procedure is needed, along with substantial judicial and prosecutorial training. Near term fixes would include basic educational materials for criminal defendants to be able to assert their procedural rights and secure legal counsel, increased legal aid and paralegal programs, improved access of legal counsel to clients in custody, and greater monitoring of criminal trials and reporting of statistics. Harsh national security laws have been used historically against opponents of the military government and should be abolished or undergo serious reform. Specific fair trial concerns cited by attorneys and CSOs include the erroneous interpretation of criminal laws (e.g., the accused is often found guilty even if all elements of a crime are not proven). Excessive pre-trial detention problems exist. One legal aid attorney cited a case where a 16-year-old was erroneously charged as an adult, and since his family could not afford bail he was detained for four months until the legal aid CSO took his case and established his true age. As noted elsewhere, the requirement to pay bribes to clerks, police, prosecutors, and judges to speed up a case or to influence the outcome has a significant bearing on the right to a fair trial. The Special Rapporteur on the Situation of has urged the Attorney General’s Office to ensure that State prosecutors act as a check on the practices of the police in their interrogation of suspects and collection of evidence, fulfilling their role in ensuring respect for the rights of suspects.20

7. Legal Framework 7.1 Justice Sector Legislation Myanmar’s legal framework is one in need of multi-sectoral attention, as many of the laws, rules, and regulations that establish legal rights and responsibilities are outdated, the product of military government-era legislation, or have simply become manipulated in practice for so long that their original intent has been forgotten. The foundation of the justice system – the Criminal Procedure Code, the Civil Procedure Code, the Evidence Act, and the Penal Code – have not been substantively updated for decades, and as a result essential

15 Myanmar Rule of Law Assessment, New Perimeter DLA Piper, (DLA Piper Report, March 2013). 16 CSOs providing legal aid services in densely populated areas, such as the Hlaing Tharyar Township, the country’s largest township by population, confirmed with PRLP they are unable to meet demand. A mapping of paralegals conducted by Namati and PRLP in September 2015 confirmed that the presence of low cost or free legal services outside urban areas was limited throughout the country. In a separate assessment of the availability of legal services to Rohingya living in IDP camps, PRLP found that such services were almost nonexistent. 17 See, e.g., Myanmar Constitution (2008), Article 347, Union Judiciary Law (2010), Articles 3 – 6. 18 Conversations with legal aid attorneys; USAID-PRLP closed case survey in pilot courts in Hlaing Tharyar (Yangon Region), Taungoo (Bago Region), and Hpa-an (Kayin State). 19 Over a 20-month period, PRLP conducted case analysis training for more than 800 UAGO prosecutors and legal aid lawyers, and in pre-course surveys fewer than ten percent believed that a guilty verdict required proof of all elements of a crime. 20 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, Tomas Ojea Quintana, April 2, 2014, A/HRC/25/64, paragraph 68.

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elements of due process such as duties to notify people of their rights upon arrest and the right to counsel are not adequately addressed. In application, certain elements of these laws have lost their original intent, and been used instead to enforce a government security apparatus. Section 144 of the Criminal Procedure Code, for example, from the original Burma Code of 1898, empowers a judge to issue a temporary order in urgent cases or nuisance, apprehended danger, or to respond to a threat to public order. Under the military government, however, and to this day Section 144 continues to be used as authority by government officials, usually the GAD, as a means to deny lawful gatherings, deny opposition members the right to protest, and in the most extreme cases institute martial law, as was the case during the 1988 uprisings. Even where laws are soundly written their unequal application has created confusion in the justice sector, and underlies low levels of public trust in the system. The arbitrary application of bail procedures, for example, has resulted in concerns about excessive pre-trial detention although data on the problem is limited. Judges often base their refusal to adopt new practices on a lack of clear legal authorization to do so. For example, higher court judges have reportedly refused to accept submissions of written arguments because it is not expressly permitted in the Criminal Procedures Code. Since the 2008 Constitutional reforms, minimal efforts have been underway to modernize these laws. The criminal procedure code, for example, has been amended three times since 2011. However, as one observer commented, many of these law reforms have only “tinkered around the edges.” A comprehensive and transparent review and streamlining of the civil and criminal procedure codes and evidence law to meet fair trial standards and eliminate conflicts with other existing laws is needed, including the need to:

. Strengthen guarantees of the right to counsel in criminal cases . Impose a duty to notify people of their rights upon arrest . Update evidence laws to clarify that evidence illegally obtained is inadmissible . Strengthen the supervision of police investigations . Provide authority for greater cooperation between police and prosecutors during the investigation phase . Enhance protections for victims in the criminal process . Reduce unwarranted case delays as the result of rights of appeal and revision . Update the Law on the Union Attorney General Changes to the Prisons Law have been drafted, although the draft should be reviewed to ensure access to counsel and other basic rights and to ensure mechanisms to report abuse or corruption by prison officials and staff. Other procedures require streamlining. For instance, rights of appeal and revision in cases prior to the issuance of a decision are prone to abuse and result in unwarranted delays. The Courts Manual, which is the guiding document for judges, includes detailed procedural guidelines and standardized forms, and will need to be updated to reflect any changes in the civil and criminal procedures codes and evidence law.21

7.2 Legislation Intended to Extend Government Security and Control A handful of laws drafted during the SLORC era and the post 2008 government are widely criticized as mechanisms to extend the security apparatus available to the state, and impede on basic rights, such as the freedom of expression and freedom of association. These laws are often used by the government to suppress political opposition, and the international community has widely called for their amendment or repeal. Two laws, the Electronic Transaction Law (2004) and the Telecommunications Law (2013), include defamation provisions that allow terms of imprisonment, and the Union Solidarity and Development Party (USDP) government relied on these provisions recently to arrest opposition leaders and their families. It is based on these laws that the government justifies increased scrutiny of the internet and social media. The Ward or Village Tract Administration Law (2012) requires residents to inform local government administrators of

21 The last full updating of the Courts Manual took place in 1979. The first of two parts of the Manual was amended in 1999. Reportedly both the first and second parts of the manual are currently in the process of being amended. 7

overnight guests. The government relies on this law for authority to conduct what are known as “midnight raids,” often focusing on political opposition and civil society leaders.

7.3 Mechanisms for Review of the Legal Framework A broad review of legislation needed to create a democratic legal framework is likely needed, and there are two existing mechanisms in place which, conceivably, could serve this function. First, the Law Advisory Board, discussed under the UAGO, has a mandate that would allow for broad legislative review of the justice sector. As noted earlier, however, this Board has not actually functioned since it was created in 2011, and unless reconstituted under the new government with a clear mandate and more inclusive and dedicated membership, it is not clear if the Law Advisory Board could assume this role. Second, membership of the Hluttaw Commission for the Assessment of Legal Affairs and Special Issues was recently named, and the former Speaker appointed as its chair. The commission was originally created by the Speaker in November 2011 to address shortages in parliamentary resources. The new mandate suggests the commission will serve as a resource for novice MPs, so it is as yet unclear whether the commission could assume a greater legal framework oversight function. The Pyithu Bills Committee in 2015 did identify 136 laws which it believed should be amended or repealed, but the list was rather ad hoc and did not reflect an overall policy to reform the legislative framework. Given the current environment, perhaps the most reasonable approach would be the creation of a national law reform commission. Such commissions are widely used in developed countries and those in transition. The mandates generally provide for the commission to make recommendations on legal reform that create legal framework protective of human rights and civil liberties, ensure that those rights are not unduly dependent on government or administrative processes, increase access to justice, legal information, and legal support, and ensure laws adhere to international conventions to which the country is a signatory, and international best practices. Such commissions typically are standing committees with multi-year mandates, and are formed as independent advisory bodies, whose membership include a variety of backgrounds, including academic, civil society, and government leaders, in combinations intended to reduce political interference.

8. State Institutions 8.1 Judiciary. The current organization of the judicial system dates to 2010, when the Union Judiciary Law was enacted under the 2008 Constitution and the following courts were established: . The Supreme Court of the Union of Myanmar . The High Court of the Region or the State . Court of Self-Administered Division . Court of Self-Administered Zone . District Courts . Township Courts . Other Courts established by Law Jurisdiction of courts and judges varies based on the seriousness of the crime or value of the civil claim. A set of Special Courts (juvenile, municipal, and traffic) have been subsequently established in urban centers of the country. Myanmar also has a Constitutional Tribunal, discussed later in this report, and a system of courts- martial. The Supreme Court presides over 14 state and regional High Courts (also known as State or Divisional Courts), 67 District and Self-Administered Area Courts, and 324 Township Courts. The system has approximately 1,200 judges. Village chiefs (or ‘headmen’) also wield quasi-judicial powers of investigation, arrest, and punishment.

8.1.1 Judicial Independence Article 19(a) of the 2008 Constitution guarantees judicial independence. However these Constitutional provisions have not yet been reflected in actual practice. Virtually all senior level judges were appointed during the military government. Various reports have concluded the Judiciary remains subject to influence by

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the executive branch and other powerful actors, particularly in human rights and political cases.22 USAID- PRLP’s own conversations with lawyers and CSO representatives indicate that judges are often pressured in high profile cases. Retroactive changes to penal sentences in high profile cases also suggest political interference, and judges, attending donor-sponsored seminars, have spoken about executive branch influence. Although both justice and government officials are quick to stress their awareness of judicial independence principles, they are still learning the practical implications of an independent judiciary. For example, some judges believe that judicial independence prohibits them from coordinating with other institutions, even on questions unrelated to specific cases. Suggestions to create judicial-legislative offices, a common feature in modern democracies, are quickly denounced as constitutionally prohibited. In addition to strengthening independence through Constitutional and law reforms, experts have noted the need for culture change in Myanmar’s Judiciary “where judges are expected to adhere to the rule of law and explain in written rulings the reasoning for their decisions.”23 The following briefly analyzes how the Judiciary performs in relation to core judicial independence principles:24 Appointment of Judges. The President nominates the Chief Justice and other Supreme Court Justices of the Union for the Parliament’s approval, pursuant to Article 299 of the Constitution. Under Article 308, Chief Justices of the State and Region High Courts are nominated by the President, in coordination with the Chief Justice of the Union and the Chief Minister of the Region or State concerned, for approval by the Region or State Parliament. Other High Court justices are nominated to the Parliament by the Chief Minister of the State or Region in coordination with the Chief Justice of the Union. Lower court judges are selected through a government civil service appointment process. While the process is intended to promote merit-based appointments based on written examination scores, there are reports of individuals making paying bribes to circumvent the test. Judge performance is also evaluated using a civil service template that is not tailored to the Judiciary. Judicial entrance exams are evaluated exclusively by law faculty professors at Yangon University, many of whom have never practiced law or served as judges, and whose overall capacity has been questioned (see section 9.3, Legal Education, below). The minimum age to become a township judge has been reduced to 27, leading to speculation that young judges are easily intimidated by senior members of the Judiciary, government, and military.25 There are some who argue the Judiciary cannot be trusted with sole responsibility for matters of judicial appointments, discipline, and performance evaluation. A balanced approach is seen in many countries through the use of Judicial Qualifications Commissions that have a mix of judicial and other representatives. With respect to judicial evaluation and promotion processes, a systematic performance evaluation process for judges is in use but the evaluative criteria are the same as for all civil servants and generally unrelated to the specific nature of judicial work. In 2015, senior judicial leadership tentatively agreed to a plan to develop criteria more aligned with international standards for evaluating judicial performance including judicial demeanor, case management skills, and ethics and impartiality. In early 2016, the Supreme Court appointed an internal committee to upgrade judicial evaluation and promotion processes. Tenure. Except for the Supreme Court and High Court judges, who are politically appointed, Township and District judges are civil servants and receive lifetime appointments. The President may have the power to dismiss lower court judges and Parliament also has substantial power on impeachment of judges. Disciplinary, suspension, and removal proceedings exist in the Judiciary but are opaque. Some have criticized that the Judiciary has not shown a commitment to removing judges for misconduct (for instance, based on corruption complaints forwarded to the Judiciary by the Lower House’s Committee for Scrutinizing Complaints and Appeals and Judiciary and Legal Affairs). Judicial Conditions. Myanmar’s judges enjoy personal immunity under the law for acts or omissions in the exercise of their judicial functions. However, low remuneration (as low as $130 per month for judges) is a factor undermining judicial independence and integrity. Expert assessments concur that over the long term, for judicial independence to be achieved, and judicial corruption controlled, remuneration must be significantly

22 See: the 2013 report, the Special Rapporteur on the situation of human rights in Myanmar (“no evidence that the Judiciary is developing any independence from the executive branch of government”), and “Broken Justice,” Frontier Myanmar, Jan. 27, 2016. 23 P. 31, DLA Piper Report. 24 See The Beijing Statement of Principles of the Independence of the Judiciary. 25 P. 58, IBAHRI Report. 9

increased, as part of a broader program of reforms to raise judicial ethics and professionalism. Jurisdiction. Despite the law granting the Judiciary jurisdiction throughout the country, in practice, the Judiciary’s functional reach ends where territory controlled by armed groups begins. Although courthouses are present, in these areas citizens are more likely to look to the armed groups to resolve disputes. It has been pointed out that the peace processes will need to take up the issue administration of justice in these contested locations. Observers have suggested that the GAD, a part of the Ministry of Home Affairs, undertakes legal and enforcement functions that should be in the courts’ exclusive purview. GAD is responsible for resolving smaller land disputes, and through its role on the Land Use Management Central Committee, land grabs. Even though GAD officials under the current Constitution no longer have judicial power, the Criminal Procedures Code provides GAD enforcement powers for local ordinances which, under separation of powers, should not be allowed except in emergency situations. Additionally, the GAD exercises judicial authority pursuant to Criminal Procedures Code Section 144, written at a time when local administrators had magisterial powers and were expected to control the population. (See Section 7.1, Justice Sector Legislation, above).

One characteristic of the socialist and military periods in Myanmar was the inability of individuals to challenge government decisions in court. The post-2011 era departs from this by adopting the use of constitutional writs, similar to the prior recognition of the writs in the 1947 Constitution. Since 2011, the right to issue writs under the 2008 Constitution is conferred on the Union Supreme Court, which allows for access to the writs to challenge the legality of decisions of the lower courts and of government agencies, creating the potential to provide one check on the power of the executive and an avenue for individuals to challenge government decisions in court. Despite the availability of this mechanism, it is still unclear how useful it has been to date. While hundreds of writs cases have been filed since 2012,26 the limited reporting from the Supreme Court does not allow for a reliable assessment of the Court’s willingness to issue mandates or prohibitions on government decisions. A UNHCR-sponsored workshop in 2015 on the use of constitutional writs revealed that even the most senior attorneys in the country were unclear as to how challenges to government decisions could be utilized. In the USDP-led Hluttaw there were regularly attempts to limit use of writs with the inclusion of “finality clauses” which typically provide that a committee, which has powers of review over a certain application process, has the authority to make final decisions that cannot be reviewed by a court. One example is the use of farmland, which is managed by the Farmland Management Body at the village, district and state/region level. According to the Farmland Law, the decision of the Region/State Farmland Management Body is ‘final.’ In a recent writs case the Supreme Court vacated a decision by a township GAD officer, and it is reported that GAD officials soon thereafter appeared at the OSCU and angrily denounced what they perceived as judicial overreach. Even it if were committed to handling writs procedures properly, the Supreme Court probably lacks the capacity to effectively handle a large volume of writs filings from around the country. The preferable model in the long run may be a decentralized administrative court system. Judicial Administration. In Myanmar, the Judiciary has primary authority over its own administration with the exception of the hiring and supervision of court staff who are civil servants. The process for requesting budgets is consistent with international standards. The Supreme Court exercised their authority to prepare and submit a unified court budget to the legislature for the first time in 2015. This new unified judicial budget approach meets international standards and is a positive step towards achieving an independent court budget. However, the unified budget process will not improve the courts ability to obtain adequate funding until the budget requirements are tied to clear strategic goals with program based budget justification. 8.1.2 Judicial Qualifications and Training Competence of judges is a subject of concern and lawyers have expressed skepticism about the capacities of the bench. Attorneys complain that the only mandatory qualification for lower level judges is a law degree, and that judicial officials are typically uneducated, inefficient, weak, and corrupt.27 For example, legal aid attorneys have observed some judges are unaware (or dismissive) that all elements of a crime must be proven. The OSCU conducts judicial training programs in the Judicial Training Center in Hlaing Tharyar in Yangon

26 Law, Society, and Transition in Myanmar, edited by Melissa Crouch and Tim Lindsay (Hart Publishing 2015). 27 P. 58, IBAHRI Report. 10

for incoming and sitting judges (“new judge” and “refresher” trainings); each is an in-residency program, several months in duration. Sitting judges receive refresher training every few years on a rotational basis. The training, however, does not address practical judicial skills and administrative capacities and is lecture-based instead of interactive. The Center does permit international organizations to deliver more practical courses and training, in areas such as case management, media skills, court management, and fair trial standards. The OSCU does not permit international donors to deliver courses on substantive law or procedural law, and these courses, like much , involve reading, memorizing, and repeating laws and codes. There are no post-course examinations for either new or sitting judges. A comprehensive evaluation of current curricula is needed, and while some donors such as the Japanese International Cooperation Agency (JICA), have this as part of their overall program objectives, it is not clear whether the required level of engagement is feasible in the current environment. The Center facilities are useable, but in need of significant structural and other upgrades, including reliable electricity, a library, and computer laboratory. In a 2015 UNDP survey of judges attending the training center, the biggest complaint was snakes. In the OSCU, judges in administrative roles are often afforded the opportunity to travel overseas on study tours or for longer term study programs, including Singapore and Japan, providing exposure to legal and judicial administration models and best practices on a range of topics. Training of non-judicial court staff is currently done in each region and state however it is reportedly limited in scope and would benefit from a more uniform, expanded curriculum to introduce modern court management skills, a planned initiative under the Judiciary Strategy (2015-2017). 8.1.3 Judicial Corruption Civil society and lawyers view the courts as highly susceptible to corruption. According to one lawyer’s association, a defendant ordinarily had to pay a bribe of 100,000 (about USD $79) just to get bail.28 Judges and clerks reportedly use case delay as a coercion tactic to encourage bribes. A recent report of the Lower House Committee for Scrutinizing Complaints and Appeals and Judiciary and Legal Affairs states that it received 12,360 judicial corruption complaints between July 2012 and November 2015. In 2015 the Supreme Court removed 22 judges for misconduct, but otherwise data on judge removals are limited, and reportedly judges are rarely dismissed for corruption. Various news reports also corroborate the systemic corruption that pervades the Judiciary.29 In territories with extensive drug production and trafficking, corruption of government and justice sector officials is believed to be especially prevalent. The Judiciary Strategy (2015-2017) contemplates an initiative to upgrade the judicial ethics systems. Towards this end, with the support of the International Commission of Jurists (ICJ) and the United Nations Development Programme (UNDP) a draft Judicial Code of Ethics, consistent with international standards, was recently developed and is pending final adoption. Strategies for implementing the code, such as training, enhanced complaints systems, improved disciplinary processes, and creation of a judicial ethics advisory committee, were being studied by an internal committee in the Supreme Court at the time of this report. Open court hearing requirements encourage transparency except in practice many courtrooms are small and courts have a mixed record of allowing members of the public and journalists to access hearings. CSO court monitors in particular have difficulty obtaining access to proceedings. They are sometimes refused access to courtrooms, often under the pretext that the courtroom is too small for more than the litigants and their families. Although the law guarantees public access to court decisions, compliance with this requirement is uneven. Some judges believe reading a decision in open court is sufficient to meet the law’s intent. Moreover, only parties to the case have the right to access the full case file. 8.1.4 Facilities and Public Access Myanmar’s 400 courthouses are in a mixed state with some in good condition and others in disrepair. All suffer from a lack of information and communications technology (ICT). Almost no courtrooms have computers and many clerks take minutes on typewriters or manually. Many court buildings feature small courtrooms and minimal or no public waiting areas. Other barriers to public access to the courts identified in court user surveys include: . Case Delay: Only 45% agree the courts handled their cases/business promptly and efficiently. . Lack of Information: Only 51.5% of court users attested that they understand the court’s instructions and 51% stated that it was easy to get the information needed.

28 P. 58, IBAHRI Report. 29 See, “Broken Justice,” Frontier Myanmar, Jan. 27, 2016. 11

. Unfair and Discourteous Treatment: Only 53% stated the judge was courteous, respectful, and fair.30 The Supreme Court is carrying out numerous programs to enhance facilities and access. It has adopted new courthouse design standards including larger courtrooms, suitable public waiting areas, separate spaces for victims and accused, specially designed juvenile courtrooms, and information booths. Sixteen new courthouses were built in fiscal year 2015 and 20 more are scheduled for construction in fiscal year 2016. Some courts have begun carrying out court user surveys to inform plans to improve access. Public outreach programs have been launched in some locations and court brochures have been developed to improve citizen and media understanding of the courts and judicial processes. Designation and training of public information officers in all 400 courts, creation of public information desks, and centralization of intake functions is gradually improving access and making citizen-clerk interactions more open and transparent. Media relations training programs have improved judge engagement with the media. However, such initiatives are still limited in reach, and expanding them nationwide across hundreds of courts will take time and sustained effort. 8.1.5 Planning and Management The Judiciary had never previously engaged in a strategic planning process until the Supreme Court developed a Judiciary Strategy (2015-2017), with USAID and UNDP technical assistance. Despite a lack of ICT, the judicial administration is well-organized in most respects. The OSCU, the administrative arm of the Supreme Court, has approximately 300 staff, mostly judges who rotate into administrative roles in . An OSCU Public Information Department has recently been created and the ICT Unit expanded. Various steering committees are in place to oversee reform processes including a Case Management Committee, a Strategic Planning Implementation Committee, and a committee tasked with strengthening judicial performance and ethics systems. A fairly rigorous inspection system is in place and statistical systems with monthly reporting requirements are in use but fail to capture important performance data including case durations, hearings per case, and postponements rates. One challenge to the Judiciary’s development is that the Supreme Court has traditionally followed a practice of hiring only judges for professional roles in the OSCU. For example, judges are assigned to all administrative functions including in specialized technical areas such as ICT development. Court data indicate that judges are generally diligent (some perform as many as 30 hearings per day) and average case processing times generally fall within international time standards. However, as a result of inefficient case management procedures, far too many postponements per case and hearings per case occur (16 hearings per case in civil matters and 10 per case in criminal on average). Also problematic is that hearings are sometimes conducted simultaneously. A Supreme Court Case Management Committee is pilot testing modern case management techniques to improve case processing efficiency and timeliness.31 The territorial distribution of courts (one court in each township) promotes ease of access to the courts even in remote parts of the country. However, in some rural townships the caseloads are extremely low. For example in Hpa-an Township Court in Kayin State, judges have only 35 pending cases on average. On the other hand, some urban Township Courts are overwhelmed with cases. In Hlaing Tharyar Township Court in Yangon Region, for example, judges carry an average of 200 cases. A judge rotation system in rural areas could improve efficiency and allow increased judicial support to congested courts. Using data on court caseloads and clearance rates, the Supreme Court has made an effort to temporarily assign judges to courts with high caseloads. However, this practice is constrained by the limited number of courtrooms in high volume courts. The Supreme Court is systematically expanding courthouses in high volume jurisdictions around the country, although it will take time to reach all such locations. 8.1.6 Constitutional Tribunal Per Section 320 of the Constitution, the Constitutional Tribunal is composed of nine members, three of whom are chosen by the President, three by the Speaker of the Pyithu Hluttaw, and three by the Speaker of the Amyotha Hluttaw. The functions of the Constitutional Tribunal include vetting the constitutionality of laws and acts by executive authorities, and ruling on disputes between the Union, Region, and State governments.

30 Court user satisfaction surveys performed with USAID-PRLP’s assistance in Hlaing Tharyar Township Court, Taungoo District Court, and Hpa-an Township Court (2015). Typical scores in well-regarded judiciaries are 70 to 80 percent. In Macedonia, user satisfaction with courts’ overall performance averages approximately 72% (Source: 2014 Q10 Court User Survey, USAID Judicial Strengthening Project). 31 Techniques being pilot tested include time standards, early case management conferences, case scheduling orders, uniform postponement policies, increasing responsibility on parties for witness appearances, and use of computers and electronic case tracking systems. 12

A vote by ten percent of the members of either house of parliament is required to refer matters to the Tribunal. In 2012, all nine members of the Constitutional Tribunal resigned amid controversy after Parliament initiated impeachment proceedings against all of the members, and subsequently the Tribunal has heard only a handful of cases. Some have suggested the Tribunal should be eliminated since the Supreme Court could just as easily assume its functions and limited caseload. With the new government required to make appointments to the Tribunal, commentators have suggested that the Tribunal would not just be retained, but that its usefulness could be expanded through changes that would allow the next government to directly challenge constitutional provisions, which is not currently provided. If it is retained, reconsideration should be given to the constitutional provisions that currently govern the Constitutional Tribunal, so as to fortify its independence from the executive branch, by staggering the appointment of members, extending their period of service, and/or ensuring that all its members are not replaced at the same time as the presidency and parliament.32 As one scholar has pointed out, ten-year terms and staggered appointments are more common elsewhere in the world, and ensure both a political balance and the accumulation of experience. If the Tribunal is eliminated its functions would need to be transferred to the Supreme Court by a Constitutional amendment. 8.2 Union Attorney General’s Office (UAGO) 8.2.1 UAGO Structure In its present form the Union Attorney General’s Office was established by the Attorney General of the Union Law 2010. In order to discharge its functions, the Attorney General’s office has been subdivided into four departments – Legislative Vetting and Advising Department (Department 1, responsible for scrutiny of laws, rules, or procedures drafted by government ministries, legal translations, and constitutional matters), Legal Advice (Department 2 – responsible for advising central government on international treaties, memoranda of understandings, and commercial and investment contracts), Prosecution (Department 3 – responsible for criminal prosecutions, civil litigation involving the government, writs and complaints), and Administration (Department 4, responsible administration, including training, budgeting, and ICT). A separate Staff Office of five is responsible for administration of the AG’s office. In January 2016 the UAGO released a five-year strategic plan, which was developed with UNDP technical assistance. The plan includes objectives to improve legislative vetting, build leadership inside the UAGO, improve recruitment of law officers, improve UAGO working conditions, increase public legal awareness, strengthen adherence to fair trial standards, and pursue a national justice sector reform strategy. As the strategic plan was drafted by the USDP-led government, it is uncertain whether the incoming government will recognize and adhere to it, though the goals, objectives, and activities are straightforward enough that the new Government could implement. 8.2.2 Legislative Vetting Except in very rare circumstances, such as rules for the Attorney General of the Union Law 2010 (Attorney General’s Law), the UAGO’s Legislative Vetting Department does not draft legislation, but rather vets draft legislation initiated by government ministries. Acting informally under the last Hluttaw, it is reported that this department worked with the Hluttaw Bills Committees to provide similar support for private member bills. Draft laws rarely, if ever, include needed legislative or financial analyses. The quality of laws received by Department 1 is generally low, reflecting the lack of legislative drafting training that takes place in government ministries. While the UAGO is not directly mandated to provide legislative drafting training to other government ministries, it is able to do so on a limited basis through the vetting process. The department is staffed with four full time law officers, and one part time law officer, and the limited staffing results in a severe bottleneck in the legislative vetting process. The shortage of qualified staff as well means that it is difficult for Department 1 law officers to thematically specialize in areas of law. To date there has been resistance from UAGO leadership to legal or policy reforms that would guarantee public and civil society participation in law and policy development – which many countries take for granted – such as mandatory noticing and public comment periods, though some ministries do adopt similar processes, such as the Ministry of Social Welfare, Relief and Resettlement as part of its work on the Prevention of Violence Against Women Law. Various trainings have been offered by the JICA and UNDP and the development of a

32 P. 72, IBAHRI Report. 13

legislative drafting manual is underway that should help to strengthen the uniformity and quality of law- making processes. However, legislative changes will be required to assure citizen input into the laws that govern Myanmar’s society, and the public will need to be educated on their new rights and how to participate in these processes. Standardized legislative vetting procedures in the UAGO will be needed to ensure quality legislation across all government ministries. Similarly, providing specialized training for Department 1 law officers on more complex issues, intellectual property, for example, will create expertise within the UAGO to review draft legislation. Worth noting is that the UAGO is already looking to develop a roster of technical experts from within the UAGO for this purpose. Given the UAGO’s limited resources, consideration should be given as to whether greater legislative drafting resources should be placed inside other government ministries, or development of a well-funded legislation office for all of government. A similar consideration should be given to establishing a single legislative drafting office to assist the Pyithu, Amyotha, and Pyidaungsu Hluttaws. Greater emphasis on data-based legislation, financial impact analyses, legislative impact analyses, and public consultation processes, including the publishing of draft legislation and public comment opportunities prior to introduction to the Hluttaw, would also improve the quality of legislation. 8.2.3 Prosecution, Prosecutor Recruitment, and Professional Development There are about 1,700 prosecutors, based in more than 400 law offices at the union, state/region, district, and township levels, and all are subject to the direction of the Attorney General, whose powers and duties are described in the Attorney General’s Law. They become involved in a case from the moment it reaches a court. Arresting and investigating police officers are not allowed to contact UAGO law officers until that point, though prosecutors can then revert to the police for more evidence (‘a request, not an instruction’). The procedures do not expressly allow coordination between police and law officers prior to trial, so law officers have assumed it is not allowed. Article 21 of the Constitution and Section 61 the Criminal Procedure Code both stipulate that arrested suspects should be produced before a magistrate within 24 hours, though this period can then be extended to up to 30 days.33 Past assessments and current USAID engagement with UAGO law officers confirm a lack of legal expertise, something that starts at the law faculties and continues with the recruitment and continuing education provided by the UAGO. The dismantling of the legal profession under the military government reduced law officers to administrators in a criminal justice system, responsible for bringing police charges to a court and moving directly to sentencing. During training for new law officers conducted by USAID in June 2015, the project found that the overwhelming majority of the 140+ recruited law officers believed that proof of most, but not all elements of the crime was sufficient for a guilty verdict. Similarly, law officers generally believed that it was up to the defense to prove their client was not guilty, rather than for the prosecution to prove the government’s case. Resources for law officers are virtually nonexistent. There is no law officer manual for prosecutors, though some subnational law offices reportedly have copies of past UAGO directives. It is unclear, however, if these are organized in a useable manner, or to what extent they are widely available. Online resources are not available to law officers. The UAGO strategic plan does include activities to develop an online database and develop a prosecution manual in 2016. Adoption and implementation of fair trial standards are now understood to be a crucial element for Department 3 law officers; due primarily to technical assistance provided by UNDP and ICJ, but more comprehensive training and reinforcement is required in order to ensure UAGO-wide implementation. The UAGO’s strategic plan does include training on fair trial standards as a priority for 2016.

33 Source: The UAGO Law Officer Manual was updated in 2015, but has not yet been translated or provided to PRLP. The processes described herein are based on the assessments conducted in three law offices – Chan Aye Tharzan (), Pathein (Ayeyarwaddy), and Western Yangon (Yangon) – which were conducted by PRLP in coordination with the UAGO in February and March 2016. 14

Subnational law officers will regularly seek guidance from union level officials on the specifics of a criminal prosecution, a process that is time consuming, and indicates the lack of authority given to subnational law officers. Prosecutor performance monitoring, case management, and statistical systems are lacking. Data regarding prosecutions by case type, location, or information regarding the parties is general and difficult to obtain, inhibiting analysis of issues such as crime trends and resourcing to law offices. Computers in law officers are rare, at best. Development of case management procedures for prosecutor offices that ensure timely and transparent trials are needed aligned with the new Case Management Plan being implemented in the courts by the OSCU. USAID has started to assess case processing and work flow in two township and one district law office, perhaps the first onsite assessment of prosecution work flow, the results of which should be available in April 2016. As with other justice sector officials, law officers are part of the civil service, and their selection, evaluation, promotion/transfer, and discipline are overseen by the Union Civil Service Board (UCSB). Law officers are initially qualified to take the law officer exam based on their performance at the law faculty. Exams for placement as law officers are administered by Yangon University. The examination process lacks transparency as, for example, there are undisclosed opportunities for extra credit. Upon selection, law officers are assigned to the UAGO for a three month recruitment training. In 2015, there were 144 new law officers appointed to the UAGO, and another 16 from other ministries took part in the UAGO’s recruitment training. There are no performance measures or disciplinary systems that are unique to UAGO law officers, and issues of professional development, ethics, and discipline are only broadly addressed as outlined by the UCSB. Evaluation is based on a standardized civil service system, with law officers evaluated briefly in areas such as “innovation” and “hard working.” Promotions are based on length of service, and transfers are common, made with little regard on the impact on any given office. It does not appear that the UAGO has evaluated its current office structure based on caseload or complexity in decades, if ever. Salaries, as for other justice sector officials, are very low, creating an environment vulnerable to corrupt practices. In terms of professional development of prosecutors, various trainings have been provided by UNDP and other organizations on fair trial standards and access to justice principles. However, training for prosecutors by the UAGO is limited overall and the UAGO’s training department is in need of modernization. A broader curriculum for prosecutors, with a focus on practical skills as well as international standards such as due process and fair trial standards, would be instrumental to improving their performance. While it is unlikely, and probably unnecessary to remove law officers from the civil service, a separate code of professional responsibility for prosecutors should be considered, along with complaint and disciplinary procedures, administered by the UAGO, based on such a professional conduct code. Public awareness on prosecutor’s ethics code as well as information on how to file complaints on perceived unethical procedure would support public trust in the criminal justice system. 8.2.4 Administration Department 4, Administration, oversees all administration for the UAGO, including ICT, training, and budgeting. Budgeting is a process that involves very few at the UAGO, and therefore needs are not adequately addressed from one fiscal year to the next. Because of the limited information provided by subnational offices regarding caseload, complexity, and processing time, law office resources and needs are not adequately addressed year to year. Budget preparation at the UAGO is in need of a more inclusive system, based on needs identified by union and subnational offices, as well as means by which to request funds for strategic priorities, including those identified in the UAGO strategic plan, which are largely unfunded at present. ICT is virtually nonexistent, though it is a priority in the UAGO strategic plan, albeit one in need of significant funding. UNDP is currently supporting a very high level ICT effort that will provide the Attorney General and the UAGO Director General with basic case information from subnational law offices. Coordination of this work, with a focus on providing some computerization support to the subnational law offices, will help the UAGO to identify trends in the criminal justice system, more accurately allocate UAGO resources, and provide data on which national policy and legislation can be based. Perhaps the biggest challenge for the Administration Department is in the area of training, support for which is required in all three substantive departments. Courses on legislative drafting and international instruments 15

are lacking, though JICA and other donors provide some training in specialized areas, such as intellectual property. For prosecutors, the situation is more acute, and the current curriculum badly in need of modernization, both in terms of content and training methodologies. The substantive legal courses, for example the criminal procedure code and penal code, consist of senior law officers reading the code provisions to students. International partners are not, at present, permitted to provide training on the substantive law. The historic means of rote memorization still dominate the UAGO training program, and to address this in 2014-15 UNDP conducted training of trainers for dedicated trainers inside the UAGO. Unfortunately, since then many of those trained on modern training methodologies were transferred and are no longer available to the UAGO Training Division. The UAGO has since indicated a desire to name permanent trainers for the Training Division. There is no pre or post testing for substantive courses. A recent UNDP training assessment called for an immediate training needs assessment and broad curriculum overhaul. This is indeed required, as there are limited agendas or training materials for courses, except where those are provided by international partners. Until JICA and USAID introduced legal skills courses, such as case analysis and mock trials, law officers were not provided instruction on legal skills or critical legal thinking and these types of courses should be the subject of training of trainers for UAGO trainers, and institutionalized into the law officer curricula. UNDP, through its arrangement with the International Development Law Organization (IDLO), embedded a legal education expert inside the UAGO Training Division in February 2016, but the impact of that will not be known for some time. 8.2.5 Legal Advisory Board In April 2011, then-President U Thein Sein established the Legal Advisory Board by presidential decree to make recommendations on Myanmar’s legal framework, including laws and the implementation thereof, the legal profession, and legal education.34 Placed in the UAGO, and co-chaired by the UAGO and MOHA, it reportedly only met several times.35 It is not clear why the Legal Advisory Board failed to move towards its mandate, though one report is that the MOHA believed that the Legal Advisory Board should have been housed in that ministry, and thereafter refused to participate. In the UAGO’s strategic plan there is reference to the Legal Advisory Board as the mechanism through which a national justice sector reform strategy will be made, but it is very uncertain whether the new government will choose to renew this body36, or choose another to pursue its justice sector reform mandate. 8.3 Other State Institutions 8.3.1 National Parliament and Legislative Process The newly elected Parliament (Hluttaw) contains many first-time Members of Parliament (MPs) who lack knowledge of both the current challenges facing the country’s justice sector and international standards and best practices. The Hluttaw Committee on Rule of Law and Tranquility is an ad hoc committee that was chaired by Suu Kyi during the prior Hluttaw. The Committee’s focus includes developing regional Rule of Law Training Centers, assessing the current rule of law situation, and speaking out about judicial corruption. If it is retained in the new Parliament, the Committee will potentially have an important role in the reform process. Civil society participation in law drafting has been allowed randomly, but in general the lawmaking process is considered unpredictable and opaque with only initial drafts of introduced bills and adopted bills being made public (draft legislation also is not available online). During consideration of the Legal Aid Law, for example, the Pyithu Hluttaw Bills Committee repeatedly requested that the Ministry of Information publish a draft of the law, to which there was no response. According to the chair of the Bills Committee, the Committee lacks the authority to publish legislation under consideration. The lack of public and civil society participation is considered to undermine both the quality and legitimacy of the legal framework.

34 Presidential Office Notifications 19/2011 (20/04/2011) and 48/2011 (23/05/2011). The Legal Advisory Board was reformed pursuant to Presidential Notification 41/2013 (29/04/2013). 35 Source: PRLP discussions with the Deputy Attorney General, UAGO Director General, and UNDP rule of law program representatives. 36 This Legal Advisory Board, along with other presidentially-appointed boards, was disbanded in the last week of the Thein Sein administration. 16

8.3.2 Ministry of Home Affairs (MOHA) MOHA is one of the most powerful government institutions in Myanmar. It oversees the Government Administration Department (GAD), the police, and the prisons. The police and prison system are not considered in this report. The GAD is the administrative arm of the executive branch at the state/region, district, and township levels. GAD chairs multi-stakeholder Rule of Law Committees at the District and Township Levels throughout the country. The committees are focused primarily on security and crime prevention. Throughout Myanmar GAD assumes a quasi-judicial function. Historically, local administrators had judicial responsibilities; a feature introduced by Myanmar’s monarchies, and maintained by British sub-national colonial administrators whose responsibilities included performing the functions of district magistrate and district judge in civil matters. According to a 2014 report by The Asia Foundation, “the [GAD’s] historic role has been relatively untouched by the provisions of the 2008 Constitution or related laws, and focuses on an eclectic variety of core mandates stretching from excise management to collecting assorted taxes, collecting demographic data, land management, and local dispute resolution.”37 One GAD division, the Land, Excise and Revenue Division is also involved in settling land disputes through its participation in the Land Use Management Central Committee, responsible for resolving land disputes and land grabbing cases at their respective level. Smaller land disputes are solved by the GAD administrators in districts and townships. 8.3.3 Human Rights and the National Human Rights Commission Despite recent amnesties to free political prisoners, human rights violations remain frequently reported. Commonly reported violations include coerced confessions by security sector officials and illegal detention of activists and human rights defenders, often in relation to land grabbing protests. Recently, a well-known attorney cited the following human rights issues: . Suspects are routinely questioned without the presence of a lawyer and pressured, including through the use of torture, into confessing. . Police use improper force on detainees. . Confessions suspected to have been made under duress are routinely admitted as evidence despite their prohibition under section 164(3) of the penal code. . In political cases, defense attorneys are often placed under surveillance by the Special Branch of the police or military intelligence. . Lawyers bringing cases of police brutality face intimidation by the police, as well as dismissal by the judge, regardless of the validity of the evidence.38 The National Human Rights Commission, established by presidential decree in September 2011, is currently composed of eleven commissioners. From its inception, the Commission has been criticized for its lack of independence and transparency, the inappropriate backgrounds of its commissioners, its limited mandate and failure to investigate abuses. 39 In particular, rights groups criticized the Commission for failing to investigate abuses in Rakhine and Kachin states, which the Commission is prohibited from doing because it cannot investigate conflict zones. The Commission has also been criticized for its use of the term “Bengali” to describe Rohingya inhabitants of Rakhine state.40 All members of the Commission are former civil servants, including retired members of the Ministry of Defense and police force, and none have backgrounds in human rights promotion.41 In March of 2014 the National Human Rights Commission law was passed by the legislature, which was intended to institutionalize the Commission. Prior to the passage of the law, lawmakers

37 Administering the State of Myanmar: An Overview of the General Administration Department (The Asia Foundation, October 2014) 38 Broken Justice, Frontier Myanmar, January 2016. 39 Billy O Toole, Rights Body Shakeup Under Fire, Myanmar Times, 29 September 2014, available at: http://www.mmtimes.com/index.php/national-news/11803-rights-body-shake-up-under-fire.html 40 All the President’s Men, Burma Partnership and Equality Myanmar, page 12. Available at http://www.burmapartnership.org/wp-content/uploads/2014/09/All-the-Presidents-Men1.pdf. 41 Myanmar National Human Rights Commission website, available at: http://www.mnhrc.org.mm/en/about/commissioners/. Commissioner U Zaw Win formerly worked for both the Ministry of Defense and the Police Force. 17

had refused to fund the Commission.42 Then-President Thein Sein reshuffled the Commission in 2014 amidst criticism from rights groups, reducing the number of Commissioners from fifteen to eleven and replacing nine of the sitting members.43 Members that were removed from the Commission indicated that they were not aware of why they had been removed, but some surmised it was because they had been the most outspoken about government sponsored abuse, or because they were from ethnic minorities. 44 In September 2015, the Committee received a rare moment of praise for calling for government action against police officers who used force on student protesters in Letpedan.45 In November of 2015 the Commission was evaluated by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights and received a failing grade.46 The current commissioners are serving five year terms that expire in 2019.47 8.3.4 Anti-Corruption Bodies Myanmar ranks 147 of 168 countries in the most recent Transparency International Corruption Perceptions Index, and despite the lack of concrete data, it is widely believed that systems of corruption pervade many aspects of society including government contracting, land transactions, civil service hiring, mining and tourist development concessions, business and construction permits, and the justice system. Myanmar has signed the United Nations Anti-corruption Convention, and enacted recently Anti-Corruption and Control of Money Laundering legislation.48 In 2013 it formed an Anti-Corruption Commission charged with leading anti-bribery efforts, screening and investigating complaints, and submitting complaints to the UAGO for prosecution.49 These institutions are still nascent and no high level corruption cases have been prosecuted, however some lower level public officials and a handful of judges have reportedly been charged with bribery.50 Despite substantial staffing and resources51, it is estimated that the commission prosecutes no more than ten cases annually. In 2015, four cases involved judges. By law, corruption cases are filed in regular courts, and UAGO law officers and judges require further capacity development to prosecute and adjudicate these cases. There are regular complaints from civil society and human rights activists that these anti-corruption bodies, like the National Human Rights Commission, are to satisfy international covenants, but that the military-aligned government has no real interest in their intended objectives.

42 Radio Free Asia, Myanmar Revamps Human Rights Panel Amid Criticism from Rights Groups, 25 September, 2014 available at: http://www.rfa.org/english/news/myanmar/commission- 09252014174739.htmlhttp://www.rfa.org/english/news/myanmar/commission-09252014174739.html. Refusal of Hluttaw to fund the Commission: Mizzima, Human Rights Commission Formed Without Parliament's Approval, 27 March, 2012 available at: http://archive-2.mizzima.com/news/inside-burma/6836-human-rights-commission-not-formed- with-parliaments-approval.html.http://archive-2.mizzima.com/news/inside-burma/6836-human-rights-commission-not- formed-with-parliaments-approval.html. 43 O Toole, Rights Body Shakeup Under Fire. 44 O Toole, Rights Body Shakeup Under Fire. 45 Lawi Weng, Rare Praise for Human Rights Body After Call for Letpadan Justice, The Irrawaddy, 14 September 2015, available at: http://www.irrawaddy.com/burma/rare-praise-for-human-rights-body-after-call-for-letpadan-justice.html 46 International Center for Transitional Justice, Myanmar’s Human Rights Commission comes under fire for record, February 2, 2016. Available at: https://www.ictj.org/news/myanmars-human-rights-commission-comes-under-fire-over- record 47 All the Presidents Men, page 16 (note the term limit is not mentioned on the Commission’s website). 48 Anti-Corruption Law 2013 and Control of Money Laundering Law 2014. 49 A Bureau of Special Investigation, housed in the Ministry of Home Affairs, was established by the Special Investigation Administrative Board and Bureau of Special Investigation Act 1951, and charged with investigation of corruption, economic and financial crimes, and, most notably, the collection of intelligence to support national security. 50 The President’s Office website refers to an Anti-corruption Commission report that the commission received 533 letters of complaint in a 5 month period in mid-2015, with only three complaints having been dealt with. See: http://www.president-office.gov.mm/en/?q=issues/civil-right/id-4224. 51 The Anti-Corruption Commission consists of 15 commissioners and employs a significant staff. 18

9. Non-State Institutions and Systems 9.1 Legal Profession Since the 1962 coup d’état, the once elite legal profession has been systematically reduced in stature. Academic standards and practical training programs have declined and the government has undermined lawyers’ independence through suspensions and disbarments against those that opposed the government. In addition to low quality legal education, the Bar Council, which is granted oversight of lawyers through the Bar Council Act of 1929, provides no quality control regarding the qualification of lawyers and monitoring and disciplining for their conduct. Of an estimated 8,300 advocates (barristers) and 39,700 higher grade pleaders (solicitors), many are considered in need of substantial further training, especially practical skills training, and exposure to international law and practice.52 Most qualified lawyers in the country are not practicing law and many of those that do lack access to legal resources or a suitable law library.53 In 1989, the ruling military government amended the Bar Council Act to remove independently elected lawyer members. Since then the Bar Council has been run solely by a governing structure consisting of the Attorney General (Chair) and Deputy Attorney General (Vice Chair), and includes the Union Attorney General’s Office Director General, Office of the Supreme Court of the Union Director General, and six advocates nominated by the Supreme Court. It is through the Bar Council that the reprimands and suspensions noted above have been administered. Regional bar associations and networks, perhaps in response to the Bar Council’s new governance structure, have increasingly taken on activities typically associated with national lawyer organizations and there is currently at least one regional bar association in most every state or region. Still, these associations lacked suitable organizational structures, continuing legal education programs, or funding mechanisms that would make them effective professional associations. Even the Yangon Bar Association, the country’s largest, is vastly under-resourced, and its membership is limited as a result of a lack of engagement with newer entrants to the legal profession. Seeing a need for a national and well-structured bar association, in 2012 the International Bar Association (IBA) called for a representative lawyers association dedicated to promoting and protecting the rights of lawyers, reestablishing the status of the legal profession, and providing continuing legal education for its members. Starting in 2012, IBA began working with state and regional bar associations and independent lawyers to develop a national bar association, which included consultation with bar associations and independent lawyers in all 14 states and regions, and Nay Pyi Taw, and the drafting of a national bar constitution in 2014. The association’s constitution is heavy on organizational and committee structures (the Central Committee consists of 120 members, and most of the document is focused on committee structure and meeting requirements) and light on substantive objectives, but it still represented a significant step towards the creation of a national and independent bar. This effort culminated in January 2016 with the official launch of the Independent Lawyers Association of Myanmar (ILAM), which claims more than 2,000 members. In addition to further institutional development, for the ILAM to fulfil its mandate effectively will require changes in the laws governing the legal profession to reflect modern standards and remove the threat of arbitrary punishment of lawyers for discharging their duties. 9.2 Legal Aid System Myanmar’s 2008 Constitution does not provide specifically for legal aid, though Article 6(a) states that among the basic principles of the Union are to enhance the “eternal principles of justice, liberty, and equality.” The Courts Manual includes language54 that suggests judges can ask the government, likely through the Union Attorney General’s Office, to appoint counsel, but it is not clear how this system would work, or how often it

52 See P. 68 of the IBAHRI Report: “As several advocates themselves acknowledged, the politicisation of Myanmar’s laws, the steady corruption of its court system, and the lack of exposure to foreign legislation and practice have combined to demoralise the country’s entire legal culture.” 53 A first priority of the Central Executive Committee of the Independent Lawyers’ Association of Myanmar is fundraising to create two law libraries for its members. 54 Courts Manual, Section 457. 19

has been used. Otherwise, the right to legal aid was recognized only in criminal cases punishable by death55 , and the state provided only $2.42 for each hearing attended. Many criminal defendants, both unaware of their right to counsel and unable to afford an attorney, appear in court without representation. The very limited government-provided legal aid system is supplemented through organizations supported by donors. Those organizations are focused in major cities such as Yangon and Mawlamyaing, each of which has a donor-supported justice center, but there is also a limited legal aid presence in outlying areas including those involved in high-profile disputes. To an increasing extent paralegals are used to provide legal aid, either supporting the work of lawyers in their organization or acting independently to give advice and refer clients to lawyers when needed. It is estimated that there are approximately 300 paralegals providing legal aid nationwide, clustered primarily in areas such as Yangon, Mon, Ayeyarwaddy, and Shan. USAID is supporting the development of a paralegal network that will help paralegals coordinate efforts, develop professionally, and advocate for the status of the profession. Despite high levels of commitment, most legal aid providers have lacked access to continuous legal education and skills development opportunities such as employment in a law firm or legal clinic, judge clerkships, and mock trial and moot court programs. A select group of legal aid providers, such as the Yangon and Mawlamyaing Justice Centers, are better developed organizationally, but, like the majority of legal aid providers, they also benefit from training to build legal practice and critical thinking skills. Technical and organizational capacity among legal aid providers outside the major cities is low. Myanmar’s legal aid system is poised to change. In January 2016, the country’s first Legal Aid Law came into effect, reflecting the outgoing parliament’s intent to support legal aid. The new Legal Aid Law has positive elements. It establishes a right to legal aid for the accused at all stages of criminal proceedings, and also legal aid for victims and witnesses of crime. The Law recognizes the need to educate the public about laws and their right to legal aid. It also recognizes the independence of legal aid providers, identifies which non-lawyers may provide legal aid, and that legal aid may be provided outside of the government system. The Law also prioritizes legal aid for vulnerable groups, including children, women, and the disabled. However, as a practical matter the Legal Aid Law creates an administrative structure for the system, but does not detail legal aid policies, commit the government to funding legal aid, define who is entitled to legal aid, or establish procedures for accrediting legal aid providers. In addition, the Law allows for only limited involvement by CSOs in the administration of the legal aid system. Significant challenges to a robust legal aid system remain. Regulations will need to be drafted to fill the many gaps in the Legal Aid Law, and substantial government funds will need to be committed. In addition, because the Law was proposed by an individual parliamentarian and not the government, it is unclear whether there is agreement for the enacted legal aid system from the new government.56 Moreover, the Law provides that the legal aid system will be overseen by the Union Supreme Court, which, as noted, lacks experience in this role. Finally, even if the government funds a robust legal aid system, the system alone will not solve the country’s legal aid needs without substantial training of judges, prosecutors, and defense counsel. 9.3 Legal Education As in the United Kingdom, legal education in Myanmar begins at the undergraduate level. After four years of study, would-be lawyers complete an additional year of training while working under the direction of a practicing lawyer. Graduate education is available in a range of specialty areas. Prior to the 1962 military coup, law was an elite profession taught only in Yangon. The status of legal education diminished under the military government, when the sciences were favored. In 1975, the military government instituted “distance learning” as a result of student demonstrations, and this remote method of instruction quickly became dominant. In 1996, 17 new law departments were simultaneously established at universities outside Yangon, which some believe to be excessive for a country of Myanmar’s size and an impediment to raising law faculty standards. These deficits were compounded by lack of resources and low quality instructional materials. Students do not see teachers except for end of semester “cram courses,” assignments are few, and both assignments and exams are poorly designed and liberally graded. Although distance learning continues to dominate, residential law study again became available in 2013. But most experts concur the education system still lacks the capacity to produce lawyers with necessary skills and

55 Attorney General of the Union Law 2010, Section 36(1). 56 During a DFID-sponsored assessment in March 2016, led by a current Justice of the UK Supreme Court, senior NLD leadership suggested they would like to see the new Legal Aid Law rescinded and a new law submitted in the Hluttaw. 20

knowledge needed in a modern legal system. As with distance learning, materials are outdated. The method of instruction typically consists of group recitation of assigned text. Students are rarely encouraged to critique their readings, make legal arguments, or solve legal problems. Skills’ training - legal writing, legal research, trial advocacy, and negotiation - is absent, and students have no opportunity to learn these vital skills. Clinical education and mock trial programs exist only as small experiments. Students spend far too much time in classrooms, making it impossible to adequately prepare for class. That instruction is in English enhances these problems. Physical facilities are often dilapidated and power outages are frequent. Library facilities are poor, and access to online materials and research mechanisms is extremely limited. At the Yangon University Law Department, books donated by Oxford University sit in boxes, unavailable to faculty or students, for lack of shelving to put them on; there is no librarian to catalog the books or assist students in finding them. Human resources are also severely limited. Many, perhaps the majority, of law teachers are not prepared to teach legal analysis, critical thinking, or lawyering skills. A very high proportion of academics, including those who graduated between 1996 and 2013, are themselves products of distance learning. Very few have studied outside Myanmar, and experience with actual law practice is rare. Law teachers lack the time to prepare, spending many more hours in the classroom than counterparts elsewhere and burdened with a range of administrative and government-imposed responsibilities. Perhaps the most positive aspect of Myanmar’s system of legal education is educators’ enthusiasm for change. The government’s funding of legal education is also slowly increasing. In addition, the Board of Studies recently made Human Rights Law a required course, approved a new course on legal drafting, and is working with an international non-governmental organization, Bridges Across Borders South East Asia Clinical Legal Education Initiative, to introduce clinical legal education methods. However, high-quality legal education requires resources. Additional faculty is needed to teach time-intensive courses on legal writing and research, and to support clinical education. Faculty also must develop these skills themselves. Library facilities also require upgrading. Because the deficits in legal education are deeply rooted, they will not give way easily. But there are practical steps that can be taken to assist Myanmar’s legal educators in moving forward. These may include: assisting in the development of new instructional materials; expanding educational exchange programs; creating online research facilities and building library resources; and improving English language instruction. 9.4 Informal Justice/Mediation/Arbitration Information on the availability or use of non-state or customary justice systems is limited, and to date no comprehensive survey on the subject has been completed.57 According to legal aid providers and other CSOs with which PRLP engages, many citizens seek to settle their disputes and legal problems out of court. Citizens often approach religious and community leaders, village elders, and even the police and Government Administration Department officials rather than the courts.

In conflict zones, citizens may look to ethnic armed organizations for resolution of their disputes. In Mon State, for example, the New Mon State Party, which has held a ceasefire with the government since 2005, administers basic services, including some justice services, in an arrangement tolerated by the government.58 In conflict areas where ethnic armed organizations have forcibly excluded the government, as in the case of some particularly mountainous or remote areas, ethnic organizations serve the functions of the state, though little information is available about the administration of the courts or other conflict resolution mechanisms.59

Private attorneys report that their commercial clients prefer arbitration to going to court. Foreign businesses already rely on international arbitration and Japan International Cooperation agency has helped amend the 2016 law on arbitration60, which may result in its expansion. Judicial officials also lack interest in developing court-annexed or other mediation programs although the Supreme Court’s Judiciary Strategy (2015-2017)

57 The UNDP rule of law program launched an access to justice/informal justice survey in October 2015, but that work has been delayed as a result of state and regional approvals. 58 Joliffe, Kim, Ethnic Armed Conflict and Territorial Administration in Myanmar (The Asia Foundation July 2015). 59 See supra. 60 Arbitration Law, Pyidaungsu Hluttaw Law No. 5/2016 21

contemplates undertaking a civil mediation feasibility study in 2016. A new EU-funded justice project (My Justice)61 will seek to develop community mediation in targeted locations around the country.62

9.5 Civil Society The key nongovernmental actors in rule of law reform include attorneys, civil society advocacy and research organizations, community mediation organizations, and activists. These actors are highly motivated and have a growing understanding of rule of law problems and international best practices. Still, civil society’s limited expertise in the details of justice sector reform prevent them from serving as credible voices in the reform process, and there have been insufficient efforts to coordinate the activities of the many civil society actors working to foster the rule of law. Further technical expertise, organizational capacity development, and coalition building are needed for these actors to play a meaningful role in law reform processes. The CSO-led Access to Justice Initiative recently launched with three main arms: research, advocacy, and monitoring and oversight. Comprised of members from 45 CSOs, it is helping to fill the gaps in civil society’s technical expertise by undertaking focused research projects, initially in areas of land, labor, and anti- corruption. Advocacy efforts are concentrated on law reform processes writ large. The Initiative’s court monitoring program is focused on assessing court compliance with international fair trial standards and will publish its results. In recent years, CSOs have been afforded ad hoc opportunities to participate in reform processes. For example, CSOs had a seat at the table in the development of land policies, the law on violence against women, and the association law. However the right to participate is not legislated, and has depended on the government actors involved. It is at this point unclear whether, under the new government, civil society’s opportunity to participate in the reform process will increase. Further efforts are needed to ensure that robust consultative processes become the norm. CSOs’ ability to engage at the state/region and local levels is mixed. In Yangon Region and Mon State, CSOs have formed positive relationships with the government and regional Parliament and conduct regular consultations on rule of law topics. In other locations, such as Taungoo and Kayin, the government has been less receptive to CSO consultation and participation in decision making processes. As noted,63 GAD chairs multi-stakeholder committees at the district and township levels throughout the country and each village has a Rule of Law Committee. Although these seem like a logical mechanism for CSO consultation on local rule of law and access to justice concerns, there has been minimal receptivity to cooperation by GAD officials. Further efforts are needed to institute government-CSO consultation practices. Separate from broader justice sector reform efforts, CSOs in Myanmar are substantially active in building legal rights awareness, providing direct legal aid, and providing related support services such as safe houses for victims of gender based violence and psycho-social services. A strong spirit of volunteerism is present, and CSOs proceed aggressively with or without donor funding. Most CSOs would benefit from further technical and organizational capacity development including development of suitable organizational and administrative structures. As in other countries, some CSOs are built around strong and committed leaders, and sustainability of their work is challenged once the founder departs, something currently on view as some former CSO leaders have been elected as new MPs. Associations and networks of CSOs – including legal aid networks – exist and continue to develop, but at times grapple with overly broad mandates, a lack of agreed upon governance structures, or competing interests. Given growing demand for community-based legal support, USAID and Namati, an international NGO focused on local legal empowerment, are aiding the creation of a network devoted solely to promoting paralegals, supporting their professional development, advocating for the profession, and providing networking opportunities for this expanding legal field.

61 Launched in summer 2015, the EU-funded My Justice program is a four year, €20 million project focused on providing legal services to vulnerable populations and community mediation programs. 62 It remains unclear to what extent mediation services will be welcomed. Despite the reported reliance on non-state and customary dispute resolution in rural areas, in urban areas it has not been embraced; one legal aid organization (perhaps the best known in Myanmar) seeking to offer free mediation services in Western Yangon encountered low demand for the service. 63 Administering the State of Myanmar: An Overview of the General Administration Department (The Asia Foundation, October 2014) 22

10. Gender Concerns In the country as a whole, female judges outnumber their male counterparts by almost 2 to 1. Some of the highest ranking positions in the OSCU are held by women, and more district courts are led by women than men. However, justices in the Supreme Court, Constitutional Tribunal, and High Courts are predominantly men64. Approximately 700 rape cases are reported annually in Myanmar, though this is likely a fraction of the cases that occur because of stigma and the fact that many families discourage women from reporting rapes65. There is no estimate of gender-based violence (GBV) rates, though United Nations Development Program reports suggest intimate partner violence is widespread66. Despite this, very few GBV cases are brought in Myanmar’s courts. Beyond stigma, the cost of initiating a court case is often prohibitive. Where individuals do pursue a case, they often report finding the police poorly trained and insensitive. Police frequently fail to investigate cases adequately, leading to findings of ‘insufficient evidence’ and pressure from prosecutors to accept a settlement. Police in at least one station in Yangon report that they have no formal procedures for handling GBV cases other than asking female officers to interact with victims67. Furthermore, the likelihood that cases will be prolonged in overburdened courts and that, if eventually sentenced, the perpetrators will receive less than the maximum allowed 10 years is another reported deterrent68. The possibility the accused will influence the outcome through corruption is yet another reason victims fail to report. Most GBV cases in Myanmar are dealt with under section 360 of the Penal Code, “Assault or criminal force with a woman with intent to outrage her modesty.” The penal code does not currently criminalize GBV specifically. A draft law, prepared by the Department of Social Welfare in collaboration with the Gender Equality Network and UN Gender Theme Working Group, and in public consultations supported by the United Nations Population Fund (UNFPA) and USAID, is currently under consideration by the Hluttaw. In cases where the military was involved in the perpetration of sexual violence, additional structural barriers make it unlikely that women and girls will seek or receive justice. Because of the perception that the Judiciary in Myanmar does not always operate independently of the military, expectations of a fair outcome involving military perpetrators, especially in ethnic areas, are low. There are also reported instances of officers threatening the family and villages of women reporting GBV.69 Article 445 of the 2008 Constitution grant the military immunity from prosecution for crimes committed while in office, which has been interpreted by human rights and women’s rights organizations to include sexual abuse and rape. The Judiciary is taking some steps to build trust that GBV cases will be properly handled. For example, the Supreme Court is currently pilot testing a program to fast track GBV cases and others involving vulnerable citizens.70 International donors currently funding GBV-related projects in Myanmar include UNFPA and the governments of Sweden and Finland, who recently pledged for a three year $11.8 million project, “Women and Girls First” which will provide primarily psychosocial support, including emergency assistance, post-rape treatment, and awareness raising of the rights of women and girls. The services will be delivered primarily through stationary clinics. A significant amount of programming by international donors occurs in Kachin, northern Shan, and Rakhine state, targeting internally displaced persons who are at a higher risk of GBV. ActionAid also provides legal aid to women reporting GBV.

64 According to information from the Union Civil Service Board, in 2014 there were 1,123 women judges and 617 men judges. 65 Ei Cherry Aung, Rape Victims Struggle to Find Justice in Myanmar, Myanmar Now, February 17, 2016. In USAID’s Promoting the Rule of Law Project’s pilot courts in Hlaing Thiyar, Taungoo, and Hpa-an, few rape cases are pending. 66 UNDP 2010 Country Assessment. 67 Ei, supra note 1, quoting an officer from Pazandaung Township in Yangon. 68 Ei, supra note 1, quoting a defense attorney who has never seen a convicted rapist receive the maximum sentence. 69 Women’s League of Burma, “If They Had Hope They Would Speak,” 2014 http://womenofburma.org/wp- content/uploads/2014/11/VAW_Iftheyhadhope_TheywouldSpeak_English.pdf. 70 The procedures are being pilot tested since July 2015 in the USAID-PRLP pilot courts in Hlaing Thayar, Taungoo, and Hpa-an as part of the Case Management Plan adopted by the Supreme Court in early 2015. 23

11. Current Donor Engagement The primary bilateral or multilateral development partners with established rule of law support programs are USAID, United Kingdom (UK) Aid/DFID, UNDP, the European Union, JICA, and Australia Department of Foreign Affairs and Trade. With few exceptions, such as long standing UK support through Pyoe Pin, most programs started in 2012 or later. Recently, more targeted engagement has come from the Asian Development Bank, Singapore, Denmark, Sweden, Finland, and the Korean International Cooperation Agency (KOICA). World Bank recently indicated new support to the UAGO. A number of United Nations entities are working on rule of law, including the United Nations Children’s Fund (UNICEF), UNFPA, United Nations Office on Drugs and Crime (UNODC), the International Labor Organization (ILO), and United Nations Human High Commissioner for Refugees (UNHCR), through either legislative or policy reform, as well as other targeted technical assistance in areas within their respective mandates. Within the non-government and civil society stakeholders, specialist justice-sector international organizations such as the International Bar Association, the International Commission of Jurists, and the International Development Law Organization, the British Council, the Open Society Institute, and Namati now have dedicated presences and projects in Myanmar. Finland, Sweden, and the United Kingdom are also active in rule of law through their contributions to the UNDP’s programs. Others include a justice component as one part of broader democracy, humanitarian, development or peacebuilding programming, such as Mercy Corps and Action Aid. Donor interest in rule of law issues was already high pre-election, and is expected to increase post-election. The European Union’s My Justice program, for example, recently launched a four-year, 20 million program, the first year of which is an inception phase, and the Danish Embassy will launch a four-year, $10 million dedicated rule of law program by the end of 2016. General coordination among rule of law donors and programs is primarily through the monthly Rule of Law Coordination Meetings, chaired by UNDP and USAID. The standard meetings consist of round-the-table report outs of activities and provide opportunities for coordination. Donors and donor-funded programs regularly meet outside the ROL Coordination Meeting as well. JICA, UNDP, and USAID, for example, meet on a bi-monthly basis in Nay Pyi Taw to coordinate their UAGO and OSCU activities. At present, donor coordination between international development partners, notably UNDP and USAID-PRLP, and international NGOs such as IBA, Namati, ICJ, and IDLO, is also positive and well-coordinated.

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U.S. Agency for International Development 1300 Pennsylvania Avenue, NW Washington, DC 20523 Tel: (202) 712-0000 Fax: (202) 216-3524 www.usaid.gov

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