The Jacob Blaustein Institute for the Advancement of Human Rights (JBI), together with partners Perseus Strategies and New Perimeter, launched a new report presenting an in-depth assessment of rule of law reform needs in Burma. Key Burma experts, U.S. and other policymakers attended the launch at a meeting in Washington DC on March 5. As noted in The Irrawaddy and Trust Law, the discussion focused on reforming Burma’s Constitution, and the incorporation of international human rights standards and civil society participation in the rule of law reform process. In line with these recommendations, on March 20 the Burmese parliament agreed to create a commission to review the controversial 2008 Constitution.
Burma is transitioning from 50 years of military rule marked by rights abuses to a more democratic government. In the past two years, Burma has released Nobel Peace Prize Laureate and opposition leader Aung San Suu Kyi from house arrest and registered her National League for Democracy political party, which won 43 of 45 available seats in April 2012 parliamentary by-elections. Other reforms include the release of approximately 800 political prisoners (although many were conditionally released); decreased restrictions on the internet and media; the establishment of a new National Human Rights Commission; and signing of preliminary ceasefire agreements with several ethnic armed groups.
The Rule of Law Assessment Report (the “Assessment”) identifies needs and responses that would expedite the rule of law reform process required in Burma to ensure that transition continues. It presents an overview of initial and needed reforms, encouraging integration of universal human rights principles in the rule of law reform process, and providing guidance and recommendations to all those who will engage with local actors in Burma. This will allow international actors to help move the law reform process from the current state where promises are made by Burma to the international community to one where reforms are implemented in Burma both on paper and in practice.
Key Findings and Recommendations
The Assessment highlights initial law reforms, much-needed Constitutional reform, and how international treaty ratification would advance law reform. It recommends reforms regarding the 2008 Constitution, the role of the national Parliament including the Rule of Law and Tranquility Committee led by Aung San Suu Kyi, and the National Human Rights Commission. Some of these findings and recommendations are highlighted below:
Initial Law Reforms:
- While Burmese President Thein Sein and his allies in the government have initiated a series of reform efforts across an array of areas, there remains a large gap between public perception and the reality of the impact of reform efforts on the ground.
- There is a strong consensus across the political spectrum that advancing the rule of law and law reform efforts are a top priority, but the government, opposition, and other parties have different views as to the sequencing of specific efforts.
- The Burmese government has also mostly ceased enforcing several repressive laws that restrict freedom of expression and association, and vaguely defined national security laws that give the government overly broad authority to arbitrarily arrest individuals. As a matter of priority, the Parliament and Executive Branch should institutionalize this liberalization by reforming these laws and others not in compliance with international human rights standards to provide formal protections in the future.
- Law reform is being implemented from the top-down, but these efforts must be driven into government bureaucracies and down to the local level, and coupled with major grassroots efforts to educate people about their rights. Furthermore, many government institutions are fragile and the role of the military remains opaque.
Needed Constitutional Reform:
- For changes to be permanent and irreversible, constitutional reform is needed.
- Constitutional concerns include a provision making Aung San Suu Kyi and others with children bearing foreign nationality ineligible to be elected President, the military’s de facto right to veto any proposed Constitutional amendment, the absence of oversight of the military including its supremacy of rule during a state of emergency, immunity for all acts taken by members of the previous military governments, lack of judicial independence, limitations placed on ethnic minority rights, inadequate guarantees of fundamental rights and freedoms which include substantial care-outs for national security, among others.
National Parliament:
- The Parliament should obtain funding for building its capacity, including expert staff and its own independent legislative drafting capability, particularly for the Rule of Law and Tranquility Committee led by Aung San Suu Kyi.
- The government should amend the current laws prohibiting sharing of draft legislation and the Parliament should create a database of proposed legislation.
- The Parliament should provide open access to the public at large to its activities.
National Human Rights Commission:
- The government should adopt enabling legislation that empowers the National Human Rights Commission to take on duties in compliance with the Paris Principles, including provisions for independent appointments, broadening investigation and reporting powers, representing victims in courts, authority to determine compensation, and adequate funding for the Commission to carryout activities to insure its independence.
The Assessment also presents recommendations regarding the Union Attorney General’s Office, judiciary, criminal defense and legal aid, bar association, legal education, access to information, and Ministry of National Planning and Economic Development.
JBI supports rule of law reform in Burma that fully incorporates international human rights standards and participation of civil society and other stakeholders, which can serve as a catalyst for Burma to develop a form of democratic governance that promotes and protects human rights.
JBI remains concerned about ongoing human rights abuses in Burma and welcomes the adoption by consensus on March 19 of the UN Human Rights Council resolution, which welcomes the report of the UN Special Rapporteur on human rights in Burma; extends the Special Rapporteur’s mandated for one year; calls for the unconditional release of all political prisoners, an inclusive dialogue with ethnic minorities toward national reconciliation and accountability for past abuses, and full implementation of legislation to protect freedoms of expression, assembly, association and religion; and expresses deep concern about persisting human rights violations and hostilities in ethnic areas particularly Kachin and Arakan/Rakhine State.
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