Asian Legal Resource Centre urged U.N. Human Rights Council on Un-rule of law and corruption deny rights in Burma

By William Gomes
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Un-rule of law and systemic corruption go hand-in-hand to deny human rights in Burma, the Asian Legal Resource Centre has told a peak United Nations body.

Recently on Thursday ALRC submitted a five-page document to the U.N.

Human Rights Council in accordance with guidelines for review of member states' records under international law. ALRC said they had also submitted a 30-page annexe with summaries of 47 cases to support its major findings, and highlighted sections from the 2008 Constitution and some 19 laws.

According to the ALRC, contrary to the council's expectation that state parties develop the means to uphold international standards, Burma "lacks a normative framework to protect human rights".

The country, the Hong Kong-based regional body ALRC said “Burma has no independent and impartial judiciary. Its police force is militarized.

Gross human rights abuse is systemic. Avenues for effective redress are lacking,"

The centre describes the two major obstacles to implementation of human rights as an official perception "that the rule of law is a function of the executive and therefore that the role of the judiciary is to enforce policy rather than law" and systemic corruption.

ALRC also condemned the new constitution of Burma, which will come into effect after a semi-elected parliament sits, as a norm-less document that negates all rights which it purports to guarantee.

According to the ALRC, the U.N. human rights body has failed to grasp the extent to which human rights abuse in Burma has become institutionalised through the criminal justice institutions and for this reason among others it is not equipped to propose or pursue meaningful strategies to change conditions there.

ALRC cautioned against the council presuming or pretending that it can do anything significant to improve the situation in Burma without corresponding significant political change, and urges it to work closely with other parts of the U.N. system towards both ends.

ALRC `noted that its observations are based on almost a decade of detailed study of the situation in Burma, and on expert examination and analysis of hundreds of cases.

Main findings that ALRC submitted to U.N Human rights councils for the universal review of Burma are :

1. Burma is not a party to most international human rights treaties.

It has practically no domestic normative framework for the protection of human rights through the rule of law. Laws with limited provisions to protect rights are routinely ignored in practice and are formally negated through jurisprudence.

2. The preponderance of legislation in Burma is aimed not at the defence of human rights but at their denial. The State has retained and continues to use antiquated colonial-era and postcolonial statutes. Those include but are not limited to: Contempt of Courts Act, 1926, section 3; Emergency Provisions Act, 1950, section 5; Foreign Exchange Regulation Act, 1947, section 24(1); Immigration (Emergency Provisions) Act, 1947, section 13(1); Official Secrets Act, 1923, section 3(1); Penal Code, sections 124A, 153A, 186, 189, 211, 294, 295A, 332, 353, 505(b); Printers and Publishers Registration Law, 1962; the so-called State Protection Law, 1975; Tuition Law, 1984; and, Unlawful Associations Act, 1908, section 17(1). Since 1988, all laws have been passed as executive decrees, not through any legislative process. In this time, the laws that have been introduced to curtail human rights include: the so-called Anti-Subversion Law, 1996; Electronic Transactions Law, 2004; Organization Law, 1988; and, Television and Video Law, 1996.

3. The 2008 Constitution is in terms of human rights a norm-less constitution. Under its provisions, the armed forces are placed outside of judicial authority. The military, not the judiciary, is the constitution's guardian. The judiciary is separated from other branches of government only "to the extent possible". All rights are qualified with ambiguous language that permits exemptions under circumstances of the state's choosing. For instance, the right not to be held in custody for more than 24 hours before being brought before a magistrate, which already exists in the Criminal Procedure Code, is under the new constitution delimited by an exception for "matters on precautionary measures taken for the security of the Union or prevalence of law and order, peace and tranquillity in accord with the law in the interest of the public, or the matters permitted according to an existing law" (section 376). This provision effectively legalizes arbitrary detention of the sort that is already rife in Burma. Other provisions that purport to guarantee rights do so only to the extent permitted by other laws, and in so far as they do not threaten the security of the state or contravene undefined standards of public morality. The constitution allows for rights to be revoked at any time and for their suspension during a state of emergency. The cumulative effect of these qualifications is to render all guarantees of rights meaningless.

4. The police force in Burma operates as a paramilitary and intelligence agency under command of the armed forces. Policing functions are also shared among other parts of the state apparatus, including with executive councils at all levels that supervise and oversee other agencies, and with other local bodies, including the fire brigade and a government-organized mass group. At the same time, specialized agencies, in particular the Special Branch, operate as proxies for military intelligence, rather than as autonomous investigators of crime. Consequently, the characteristics of policing and prosecutions in Burma include: routine arbitrary arrest and detention; common use of torture and other forms of cruel and inhuman treatment, and frequent deaths in custody; coerced signing of documents that have no basis in law; baseless and duplicated charges; and fabricated cases.

5. As the courts are subordinate to the executive, they can neither function in accordance with the laws that they are purported to uphold nor in a manner that can defend, let alone implement human rights.

Some of their features include closed and unreported trials; procedurally-incorrect and evidence-less cases; denial of defendants'

rights and targeting of defence lawyers; and, lack of means for redress. Since 1962, the perception of successive governments in Burma has been that the role of the judiciary is not to protect rights but to enforce state policy. The rule of law is shorthand for the state's use of law and institutions of law to achieve whatever ends suit its purposes. It does not constitute a normative basis for the building of a regime of rights. Because this perception overrides specific qualities of the normative or institutional framework, it would be wrong to attribute to specific laws or agencies the authority to implement certain human rights. The authorit y of a law or institution is always delimited by a higher imperative, which means that the state party while passing laws, applying laws and establishing institutions to enforce laws does not actually feel beholden to those laws or institutions. Where its superior imperatives coincide with law, there is superficial coherence between executive policy and judicial activity. But where superior imperatives contradict law, they override it and the underlying incoherence in the system is manifest.

6. A major obstacle to the implementation of human rights in Burma is systemic corruption. Successive governments in Burma, including the current administration, have themselves acknowledged the incidence of corruption either directly or indirectly, including in the judiciary.

However, because this corruption is intimately linked to the un-rule of law that the government has formalised and institutionalised, it cannot be addressed in any meaningful way. On the contrary, anecdotal evidence points to its persistent increase with the privatization of state-owned enterprises and the increase in market-style economics.

7. As substantive change to the situation of human rights in Burma will depend upon substantive political change, at present the U.N.

Human Rights Council has very limited means to get involved in the implementing of measures to protect and uphold rights there. The Council should acknowledge these limitations rather than make unrealistic proposals and issue recommendations that will not be implemented for want of an enabling environment, or that will give a false appearance of progress.

8. Despite copious amounts of documentation narrating abuses of rights in Burma, the Council still has little detailed understanding of the institutional arrangements enabling abuse and the extent to which these are embedded in all parts of the state apparatus. It has practically no information on the endemic corruption that affects all institutions with which the Council is concerned when addressing questions of human rights implementation. The Council should consider how it can use the wider United Nations system to apprise itself of the facts and coordinate its activities with other parts of the system with a view towards substantive political change of the sort that must pre-empt any substantive change in the normative and institutional frameworks through which to implement human rights. Its strategy should take into account both initiatives on Burma in other peak bodies, including the General Assembly and the Security Council, as well as the work undertaken by a range of agencies within Burma.