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 (Pyidaungsu Hluttaw 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