Friday, August 22, 2014

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BURMA: UNODC agreement on the rule of law, a step in the right direction

August 22, 2014

The United Nations Office on Drugs and Crime (UNODC) has announced its agreement with the Burmese government to collaborate on strengthening the rule of law and addressing significant drug and crime threats. The agreement, the result of over a year of negotiations, will cover a period of three years (2014 – 2017). It has been reviewed and approved by President U Thien Sein and the Cabinet.

This agreement views crimes and problems relating to drugs within a larger framework. Often, drug use, farming, trafficking, and similar crimes are addressed singularly – separate from the problems relating to the rule of law and law enforcement. However, in the context of a country where the system of law enforcement has virtually collapsed, it is impossible to deal with drugs and related crimes without, at the same time, addressing failures in criminal justice and law enforcement.

As UNODC announced in a statement, it is recognized that “criminal activity in Myanmar is undermining development efforts, increasing human insecurity and threatening the peace process”. At the signing ceremony, Mr. Jeremy Douglas, UNODC regional representative for Southeast Asia and the Pacific, said, “By working together to improve law enforcement and criminal justice capacity, increase the availability of quality health services for drug users and offering sustainable economic alternatives for opium farmers and their families, we will be contributing to the economic and social development of the country."

UNODC now has an opportunity to assist the Burmese government on this all-important issue of criminal justice reforms, which would create the basis for a functional public justice system. The Asian Human Rights Commission has, for long, pointed to the nature of the system of administration of justice prevalent in Myanmar, which is, in fact, the opposite of a proper criminal justice system. If the UNODC is to succeed in implementing this agreement, it will have to face up to some of the most difficult problems relating to the dysfunctional nature of the Burmese court system.

Some of the more crucial problems are as follows:

A functional criminal justice system requires competence at the level of the police that need to record complaints of crimes from the people and conduct investigations. Competent prosecutors and judicial officers are also needed. Creating this kind of competence requires considerable effort to educate the police, prosecution, and judiciary on fundamental principles and practices of criminal justice.

What prevails at the moment is a system in which the police, prosecution, and judiciary merely carry out executive orders. Professional development of the police, prosecution, and judiciary would require each of these branches to have independence, in order to carry out their duties on the basis of law, rather than political exigencies as dictated by the executive. As UNODC is working with the government, it will be its duty to help the government develop policies compatible with the functioning of criminal justice.

Another essential area of concern is thorough reforms of all the procedures presently being followed that obstruct criminal justice. Although the British introduced some basic criminal justice procedures, these have been ignored during the period of military rule and, at the moment, there is not even a memory of procedural requirements guaranteeing the rights of all parties to litigation. UNODC should, therefore, redefine and redraft the basic procedural laws to be followed in courts.
Associated with the above is the requirement of adequate funding for all the functions of criminal justice. This implies adequate salaries for the police, prosecutors, and judicial officers. It also requires proper equipment for forensic work relating to criminal investigations, as well as other material resources, such as transport, communications, and the like.

In implementing the above, it will also be necessary to re-establish proper criteria and procedures for the recruitment, promotion, transfer, and dismissal for all the officials involved in the administration of justice. At the moment, severe forms of corruption mar all these aspects. Replacing corrupt practices with meritocratic measures is essential if a sound criminal justice system is to emerge. 

The task that UNODC has undertaken in this agreement with the government is challenging. It firstly calls for a close study of the system as it operates now, to illustrate how criminal justice is frustrated through the working of the system. By consulting with lawyers and others involved in the administration of justice, the UNODC could gather information on the existing system, which would help them develop recommendations for reforms. 

Criminal justice reform also depends on Burmese legal professionals becoming more competent. Long years of military control have deprived the legal profession from functioning on the basis of professional requirements. Providing opportunities for better education, coupled with actual changes in court procedures, can help improve practices within the legal profession.

The Asian Human Rights Commission, while congratulating the UNODC and the government for adopting a far-sighted approach in dealing with drugs and other crimes, calls upon lawyers and civil society organisations to extend their support to ensure successful implementation of this agreement.


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