A Letter to Myanmar’s Lawyers
Janelle Saffin MP (Member for Page, Parliament of Australia)
Burma’s lawyers are conspicuous by their absence from the public debate taking place on Burma’s political transition. The politicians, journalists, economists, and business people are all vocal, but we hear little from the lawyers. This is my personal plea to them to make their voices heard. There are many lawyers doing good work, including the Burma Lawyers’ Network, Farmers’ Affairs Group, Human Rights Defenders and Promoters, the National League for Democracy (NLD) Legal Committee, the President’s Legal Advisers, individual lawyers and more. But it is critical that the lawyers including law teachers and academics be heard.
At all other times of political transition in Burma’s history, lawyers have been front and centre, leading and calling for legal reforms, the promotion and protection of peoples’ rights and for the rule of law to be adhered to. They are needed now to actively play a leading role in the development and reform of the state’s legal, judicial and justice architecture.
The broader issues of law-making, legal reform, judicial reform, legal education, access to justice and how to inculcate the rule of law, are not appearing written large on the current reform agenda and now need to be.
Above all else the rule of law is the key to a successful democratic transition. This is something that lawyers can give real expression to. A lot of work has been done over the last decade on how to match the rule of law rhetoric to practice. There is a growing body of work and a large part is located within the United Nations including the Secretary General’s seminal statements (2005) and his guidance note on rule of law assistance. For simplicity I refer here to principles I used in my work on a Charter of Legal Reform in Burma done some thirteen years ago, but relevant today.
The minimalist rule of law principles:
1. The law should apply to government
2. The judiciary should be independent
3. The courts should be accessible; and that
4. The law should be “general in its application, equal in its operation and certain in its meaning”, [See http://www.rmit.edu.au/About/hot/TYPEV3/991106.html 17.7.2000]
These four principles can be used to examine both current laws and prospective laws for the minimum requirements as to whether or not the rule of law is not being contravened. However it is desirable to apply a more complete template of the rule of law principles, in accord with a broader articulation of them (See examples in endnotes Rule of Law Principles) 
Key international institutions such as the World Bank and the Asian Development Bank have recognized the need for legal and judicial reform to be essential for sustainable development and poverty reduction. Further they recognise that …sound legal frameworks are prerequisites for economic growth and social development…” 
The respective Hluttaws, the Pyidaungsu Hluttaw (National level legislature that incorporates the two Parliamentary houses with its own competence), the Amyotha Hluttaw (Chamber of Nationalities), the Pyithu Hluttaw (House of Representatives), and their associated Union bodies, the Judicial and Legislative Committees, the Studying, Examining and Reviewing Commission on Legal Affairs and Special Cases, and the President’s Legal Advisers and the Attorney-General Dr. Tun Shin, and the Chief Justice U Tun Tun Oo, are too silent on legal and judicial reform and review.
We understand the current demands on their time and the fact that everything is urgent, but the people need to hear their plans for legal, judicial and legislative reform. These plans need to address such matters as legal and judicial reform, structures for the legal professions including ongoing legal education and in law schools, their plans to encourage the rule of law across society and their plans on uplifting the constitution and constitutional reform.
I discussed some of these matters with the Speaker and Deputy Speaker of the respective Hluttaws (Parliamentary Chambers) and the Chairmen of Committees in both Hluttaws, specifically asking who writes the bills and the process for drafting. A good discussion ensued on the need to develop consistency and legal principles in law-making. I was told that each department initiates and drafts bills and that the Attorney-General’s Office does have a key role. I asked whether there was a plan to secure Hluttaw lawyers or Hluttaw counsel to start to get principles and consistency in law-making and independence. It was agreed that it was a sound idea. Over twenty laws have now passed the Hluttaw with some 400, I was told, ready for review. The need now is more urgent.
I also discussed the issue of the work with some members of the Studying, Examining and Reviewing Commission on Legal Affairs and Special Cases that have said that one of its roles was checking whether existing laws conform to the constitution. It seems that some roles still need to be clarified and defined, understandably given the recency, and I know that they have legal people on the Commission, but some of this work would be best situated with an independent legal reform and review commission. Members of Parliament cannot possibly be expected to do such work which requires some specialist legal expertise.
The Hluttaw heads and Chairmen of Committees did openly request technical assistance in parliamentary practice and procedures. I know that some of these issues are key recommendations in the Inter Parliamentary Union’s (IPU) recent Hluttaws assessment report. The report is before the Hluttaws now for their consideration. The Hluttaws have already accepted to institute a Hluttaw Library in keeping with Parliamentary practice and the technical help has begun.
The President’s too few competent legal advisers cannot possibly respond to the current demands upon them. Unlike other Presidential Advisors they said they have to spend all their time in Nay Pyi Taw, to get through the daily demands. The Chief Justice has been quiet on judicial reform, but it is most urgent. In the 1990’s the then Chief Justice U Aung Toe signed on to the Beijing Principles of Judicial Independence, although never adhered to, all agree that now is the time to do so.
Since 1988, the law making framework has been that of the military modus operandi, command and control. The laws themselves reflect this. They start with some sound objectives that then get strangled by the command and control mindset. The law-making and legal and judicial system is further characterised by an absence of transparency and accountability and a delegalisation of the country’s legal and judicial architecture. It will not be easy to shift overnight, but a reorientation is required.
The recent labour law was made with public consultation, the first since the election law in the late 80’s, and it was done with input from key institutions, including the ILO. This best practice does not appear to have been followed with the current media law initiative. The Information Minister would struggle to undertake such a process, as the whole purpose of his work has previously been to suppress openness and it is hard to do a 360 degree direction change without some expert advice and assistance.
I provided some private assistance to a number of lawyers who were asked to help with the media law initiative but the process of media reform lacks cohesion and order. 
Given the above and the challenges and opportunities now before Burma, the following questions, not an exhaustive list, need to be asked:
1. Where is the lawyers’ call for a law reform commission that could act independently and articulate a reform programme that contains short, medium and long term legal and judicial reforms?
2. Where is the lawyers’ call for an independent Bar Council and Lawyers Association so that lawyers can reclaim their independence as advocates within a structure that gives them a voice? 
3. Where is the lawyers’ call for certainty in the legal system to aid economic and financial development?
4. Where are the lawyers public statements calling for the immediate repeal of some of Burma’s most outmoded and draconian laws? (See in the endnotes an indicative and incomplete list I compiled over a decade ago, yet still relevant today) 
5. Where are the lawyers’ public statements about the rule of law roadmap that will lead society and the state to the rule of law?
6. Where are the lawyers calls to have licences restored for those who had them revoked for political purposes and for their reputations to be rehabilitated?
7. Where are the lawyers’ recommendations for improved electoral laws and practices that are independent with appeal rights in a court of law?
8. Where is the lawyers’ call for the Myanmar National Human Rights Commission to adopt the Paris Principles?
9. Where is the lawyers’ public advocacy to the Myanmar Human Rights Commission regarding human rights violations in Kachin State and Rakhine State?
10. Where are the lawyers’ calls for freedom of speech to be guaranteed by law including media and their input into the current media law debate?
11. Where is the lawyers’ call for restitution measures including affirmative educational and vocational training, for those who have criminal records because of political activity and other restorative or transitional justice measures?
12. Where is the lawyers’ call for the land seizures and forced labour to stop right now, and for restitution to be made?
13. Where is the lawyers’ call for the Parliament’s standing orders contained in seventeen (17) laws declared by the then SPDC to be read to comply with democratic parliamentary practice?
14. Where is the lawyers’ call for a proper process for the writing of laws, so that they accord with best parliamentary practice and the rule of law principles?
15. Where is the lawyers’ critique of the laws passed by the Hluttaw, now numbering some twenty, especially set against a rule of law framework?
16. Where are the lawyers’ calls and guidance in constitutional interpretation and the implementation of key parts of the constitution, notably Sections 446 and 447?
17. Where are the lawyers calls for the Hluttaw Judicial and Legislative Committees, and other such committees from the forty odd that exist, to comprehensively assess the country’s laws, rules, regulations, by-laws, notifications, orders, directives and procedures for compliance with the constitution according to Section 446 and 447, (These two sections provide great scope for legal reform supported by the constitution) and a debate on the proper articulation of these powers and where they should rightly belong?
18. Where is the lawyers’ call for constitutional reform? (The latter is needed, with a new constitution and as yet no constitutional settlement.)
19. Where are the lawyers’ commentaries and critique of the Constitutional Tribunal’s decisions? (They are making monumental decisions that are publicly available on their website. Such decisions need to be critiqued.)
20. Where are the lawyers calls for a debate to be had in the Hluttaws and beyond in the community on the discriminatory nature of the citizenship laws?
21. Where are the lawyers’ calls for a proper process to be followed regarding what is happening in Rakhine State that can address the immediate travesty and for a long term settlement of the vexed matters?
22. Where are the lawyers’ voices on the question of exiles returning home, some with sentences hanging over their heads? President Thein Sein has sincerely called for them to return and many want to but they need legal protection against prosecution and persecution. Public verbal assurances from the President are welcome but not compelling.
23. When is the Burma Lawyers’ Council, an exiled and still outlawed organisation, to be heard on the rule of law debate that is needed? They have been very vocal at times during the years of military oppression, but now seemingly silent on the parliamentary, legal and judicial systems and the inculcation of the rule of law. They are still, however, providing good legal education for lawyers and students with a focus on the rule of law. This work needs to be back in Burma.
24. Where are the business and commercial lawyers calling for the legal rules that provide certainty to the market and build a market-friendly regime? All the banking, financial and economic reforms in the world are only as good as the legal and judicial system. Laws are being made and changed but still are located within a broken legal and judicial system. (Professor Julio Faundez, noted expert on legal reform states the five basic attributes of market-friendly systems that are not present in modern day Myanmar.) 
The bottom line is that the lawyers can call loudly for a law reform commission that could guide the state to a rule of law architecture leading to legal and judicial reform. It is good for citizens and good for business. It provides certainty and fairness. I have been supporting this idea along with Myanmar lawyers for nearly two decades.
Legal reform is not new in Burma going back beyond King Mindon’s reign. In 1795 King Mindon undertook significant legal reform, introduced freedom of speech and financed the Yadanarbon Naypyidaw (The Mandalay Gazette); promulgating an eleven Article Act of the same nature, by issuing an order to his Ministers and Officers in which he said, “If I do wrong, write about me. If the Queens do wrong, write about them. If the Judges and Mayors do wrong, write about them. No one shall take action against the journalists for writing the truth. They shall go in and out of the palace freely.” U Hpo Hlaing, who worked for both Kings Mindon and Thibaw, served mainly in the post of Minister of the Interior and advised on Foreign Affairs, was another well known reformer who actively promoted democracy in Myanmar. 
Legal reform was undertaken in Burma under the military dictatorship (State Law and Order Restoration Council (SLORC) and the State Peace and Development Council (SPDC)), but the reform lacked a recognizable rationale and rule of law framework. They did get rid of some older and redundant laws, introduced some new laws, sometimes opening up a lacuna in law. SLORC had by1993 repealed over 150 laws and up until 1999 SLORC/SPDC had introduced 153 laws and 27 rules, bringing in the Law for the Repeal of Laws and the Law for the (Second Time) Repeal of Laws.
A legal ‘low hanging fruit’ area that is ripe for immediate repeal is the Emergency Provisions Act 1950, given the amount of commentary concerning the economy. Anyone offering comment on the economy needs to seriously consider Sections 5 (h) and (n) of the said Act, which criminalises negative comments about the economy. 
If the Parliament and/or the Government were able to effect its repeal it would give legal protection to or remove the threat of legal retaliation from the people who do comment on the economy, including the President’s Economic Advisers and Members of Parliament. Such changes would provide confidence to business and financial investors.
The current Attorney General Dr. Tun Shin back in 1999 had this to say about Burma’s legal system:
…The legal system of the Union of Myanmar is a unique system that belongs to the Common Law family. It has the roots in the Common Law Legal System. However, as in some countries one cannot say that it is a replica of the Common Law Legal System. On the other hand it is a unique combination of Common Law and Civil Law Legal Systems. The Myanmar Legal System is a system where certain mechanisms of these two legal systems are fused together for the sake of simplicity to make the understanding of law simple for the members of the legal profession and people who are connected with the law…
That was his position in the past. What is he saying now? I find it hard to understand that the Attorney General is not undertaking some sweeping internal reviews. Surely he must be doing so, given his extensive legal experience, and it is just that we are not yet hearing it.
I note that he has been appointed to a recent peace initiative body – a pressing work – but the country’s legal and judicial architecture is also pressing.
Advocate U Than Maung a well regarded lawyer in private practice and a former official of the Attorney General’s Office (OAG), in a 2001 article on Trademarks, still relevant today, said:
…Enactment alone however hardly fills the vacuum in IP field. Its by-laws such as rules, procedures and others necessary measures have to be followed up, so also establishing necessary infrastructures, training officials and staffs as well as educating the public who will deal with or relate to the subject matter. Such tremendous tasks shall have to be done not only ahead of the year 2005, but also later on and on…
He summed up the essence of legal reform and without him saying it directly, that it was sorely needed. U Than Maung nailed it; as we say, and went on to say that broad legal education was needed.
I understand that legal and judicial reform is challenging in the extreme. Everything is a priority, but the changes taking place need to be located within a rule of law framework. It will give strength to where the transition is at right now, on the cusp of irreversibility. It is irreversibility that will denote a successful transition process.
Many lawyers have long advocated for political and legal change, and have paid dearly, especially those from and associated with the National League for Democracy (NLD) legal committee and those who represented people charged with offences frequently criminal, but with their genesis in politics.
Some have sought the restoration of lawyers’ licences, revoked for political purposes, and some I am told are now getting them back, with the Chief Justice working quietly. Their voices and the Chief Justice’s need to be heard on this and many other restorative justice issues. It is not retribution but restoration. It is healing and nations need to heal as much as people.
Both National leaders, the peoples’ Daw Aung San Suu Kyi and the President U Thein Sein have called for the rule of law. Daw Aung San Suu Kyi’s call started over two decades ago and continues in her National League for Democracy platform and President Thein Sein in his recent address to the Parliament. It is time for the ‘rubber to hit the road’, as some say, in this area and that the legal and judicial reform to begin in earnest.
There are many lawyers, Burmese and foreign, interested in helping Burma move to a rule of law nation. Their shared interest can be pulled together into a legal and judicial reform project team. Their knowledge and experience should be drawn on to support those who will lead the rule of law work.
Burma is no different to many countries in that they have their share of lawyer jokes, but many are asking, as I too am asking, “Where are voices of the wonderful Burmese lawyers we all know?”
 RULE OF LAW PRINCIPLES (twelve)
1. There must be laws prohibiting and protecting against private violence and coercion, general lawlessness and anarchy.
2. The government must be bound (as far as possible) by the same laws that bind individuals.
3. The law must possess characteristics of certainty, generality and equality. Certainty requires that the law be prospective, open, clear and relatively stable. Laws must be of general application to all subjects. The must apply equally to all.
4. The law must be and remain reasonably in accordance with informed public opinion and general social values and there must be some mechanism (formal and informal) for ensuring that.
5. There must be institutions and procedures that are capable of expeditiously enforcing the law.
6. There must be effective procedures and institutions to ensure that government action is also in accordance with the law.
7. There must be an independent judiciary, so that it may be relied upon to apply the law.
8. A system of legal representation is required, preferably by an organized and independent legal profession.
9. The principles of “natural justice” (or procedural fairness) must be observed in all hearings.
10. The courts must be accessible, without long delays and high costs
11. Enforcement of the law must be impartial and honest.
12. There must be an enlightened public opinion— a public spirit or attitude favoring the application of these propositions. (This proposition has echoes of point number four in it. In addition, it is a requirement that the community be kept informed of the state of the law, social changes and trends requiring amendments to the law (or to the way in which it is enforced), and the need to proceed in a principled way at all times in the general public interest. The media inevitably play a large part in the fulfillment of this requirement – so freedom of the press, of information and of communications is vital.) [See the Southern Law Review Special Issue Restoring the Rule of Law in Volume 4 December 2000 Lismore NSW]
*This is a yet broader and popular articulation defined by the Conference on Security and Cooperation in Europe (CSCE) from the 1990s.
1. Free and fair democratic elections
2. A representative form of government in which the executive is accountable to the elected legislature or the electorate
3. The duty of the government and public authorities to comply with the constitution and to act in a manner consistent with law
4. A clear separation between the State and political parties
5. Military forces and the police will be under the control of, and accountable to, civil authorities
6. Human rights and fundamental freedoms will be guaranteed by law
7. Free access to the legislation adopted at the end of public procedure
8. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law
9. Everyone will have an effective means to redress against administrative decisions
10. The independence of judges and the impartial operation of the public judiciary service
11. Protection of the independence of the legal profession
12. Clear definition of powers in relation to prosecution in criminal procedure
13. Any person arrested or detained on a criminal charge will have the right to be brought promptly before the judge or other officer authorized by law to decide the lawfulness of his (sic) arrest of detention
14. The entitlement of everyone to a fair and public trial
15. the right of everyone to defend himself (sic) in court in person or through prompt legal assistance, to be given free if he (sic) does not have sufficient means to pay for legal assistance
16. No one will be charged with, tried for or convicted of any criminal offence unless the offense is provided for by law which defines the elements of the offense with clarity and precision
17. Everyone will be presumed innocent until proven guilty according to law
18. the participating states reaffirm that their domestic legislation will comply with international laws in the field of human rights, including guarantees for the freedom of information and communication, travel, thought, conscience and religion, right of peaceful assembly and demonstration, association, private property, etc. [See website http://www.rol.org/htmfiles/what.htm]
 The process through which laws and regulations are conceptualized, drafted, enacted, publicized and enforced is the foundation of a society governed by the rule of law. Legal reform is an ongoing and incremental process that involves the executive and legislative branches, law reform commissions, non-governmental organizations, and the public. For most countries, legal reform addresses new international standards, responds to social and economic, expands access to justice or improves court operations. Effective …coherent legal reform requires a comprehensive and sustainable approach that avoids importing “models” inconsistent with national legal …socio-economic norms. Effective legal reform also promotes opportunity, security, and empowerment for the world’s poor. [See the World Bank website at http://www.worldbank.org and in this site index go to “Law and Justice”, and also http://www1.worldbank.org/publicsector/legal/index.htm]
 I previously had carriage of a major Burmese media law project undertaken with the Burma Lawyers Council (BLC) in conjunction with InterNews and have a good body of work on this
 A meeting was held in Rangoon of the Burma Lawyers Network and they are working towards a more active legal programme and engagement.
 Preliminary List recommended for immediate repeal and/or review
- The Adaptation of Expression Law 1989 (which was used to change the country’s names, something so seminal that it would normally require a referendum)
- The State Protection Act 1975
- The Emergency Provisions Act 1950
- The Unlawful Associations Act 1908 as amended 1957
- Printers and Publishers Act 1962 (current work happening)
- Habitual Offenders Restriction of Movement & Bonding Act (Law 12/1962) which replaced the act of the same name of 1957
- Restriction and Bond Act 1961
- SS 109 and SS122 to 130 of the Penal Code and a Penal Code review
- The Official Secrets Act 1923
- Judicial Law No. 2/88 & Judiciary Law 2000
- The Computer Science Development Law 1996
- Television and Video Act 1996
- Regulations for Internet Use (Post and Telecommunications)
- Wireless Telegraph Act (Amendment Law No15/95)
- Burma Citizenship Law 1982 and SLORC amendment Law No 4/97
- Declarations No. 1/88, No. 2/88, No. 3/90, Order 5/96 and the plethora of directives, declarations, orders and the like to be comprehensively reviewed, in particular and in the general.
 These attributes are sorely missing in and investors, domestic and international need to be very cautious:
1. Rules known in advance
2. Rules actually in force
3. Availability of mechanisms for the application of the rules
4. Independent bodies to resolve conflicts over the interpretation of rules
5. procedures for amending the rules [Professor Julio Faundez School of Law, Warwick University j.faundez @warwick.ac.uk published article Legal Reform in Developing and Transition Countries-Making Haste Slowly 2000 (Section 6.2) in Law, Social Justice & Global Development Journal (LGD)
Some lawyers would not previously seek a simple order to advertise a bankruptcy notice, in compliance with the Bankruptcy Act of Burma, as they were scared of being prosecuted under this section of the Emergency Services Provisions Act. The Judges had the same fears and reservations.
 Section 5 Emergency Provisions Act (9th March 1950)
S. 5. Whoever does anything with any of the following intent; that is to say;-
(h) to make the public lose trust in the State’s economy, government loans, government securities, coins and legal tenders distributed wholly or partly in the country or to hamper operational or economic success carried out by the government in order to implement the restoration of law and order successfully; or
(n) or to … shall be punished with an imprisonment for a term which shall extend to 7 years or with fine or with both.
 See Charter of Legal Reform Scoping Project Janelle Saffin 2000 (BLC Website)
 1999 paper titled “Commercial Laws of Myanmar” given at a seminar in, Dr. Tun Shin was then Legal Advisor to the Ministry of National Planning and Economic Development, then Director-General of the Attorney-General’s Department and now the country’s Attorney General, hence my reference to his past comments on this matter.
 Office of the Attorney General’s regular publication Law Journal during the SPDC military ruling period
 Law Journal Vol III January 2001 Pl Central Workers’ Welfare Committee Office of the Attorney General