Sep 23, 2015
An opinion piece by Daniel Aguirre, ICJ International Legal Adviser based in Yangon, Myanmar.
A newly drafted investment law – much awaited by investors eager to access Myanmar’s market – has been completed and will be submitted to the Hluttaw (photo) at its next session.
The much-improved draft goes a long way toward protecting the rights of people and the environment in Myanmar from foreign investments that may create and aggravate human rights and environmental problems.
The most significant improvements to this draft of the national investment law are that it does not give foreign investors recourse to international investor-State dispute mechanisms (ISDMs) and includes key provisions protecting the government’s ‘right to regulate’ in favour of human rights and the environment.
Civil society organizations, including the ICJ, have advocated for these changes to prevent foreign investors from using international arbitration as a means to challenge public policy designed to protect human rights and the environment.
This draft law stands in sharp contrast with the bilateral investment treaties (BITs) that Myanmar has signed with a number of major foreign investors (for example, China, India, Japan, Philippines and Thailand), all of which include troubling provisions that can undermine the government’s ‘right to regulate’ in favour of the environment and human rights.
That is why Myanmar’s lawmakers in the Hluttaw must now ensure that they adopt the latest draft of the investment law without diminishing it.
They should recognize civil society’s calls for the promotion of responsible investment as well as the protection of the environment and human rights.
Investment Law is a major factor in Myanmar’s efforts to ensure sustainable development.
It is also a means by which to ensure that Myanmar will be able to discharge its human rights obligations.
The national investment law, if adopted in present form, is also very important because it should serve as the basis for future BIT negotiations, for instance with the European Union and the United States.
It is a credit to the Directorate of Investment and Companies Administration (DICA) that it stood up to pressure from both international and domestic investors greedily eyeing Myanmar’s abundant resources.
Instead, DICA undertook a consultative process in which civil society was able to voice their concerns about the previous draft of the investment law.
There were a number of consultations and the process was by no means perfect.
But the adoption of a consultation process is an important step in Myanmar – one unheard of a few years ago – and has resulted in a better law put forward. Unfortunately, the same process has not been adopted during the negotiation of Myanmar’s BITs.
Economic investment should contribute to the rule of law and human rights.
But in order for this to happen, Myanmar must align policies with a vision of development based on local and national aspirations, placing people, and their rights, at the centre of the process.
As such, investment law, both in the national and international contexts, must be part of an overall development strategy.
It should refer to the various legal regimes, such as international human rights law, environmental conservation and BITs, with which it will interact. DICA has done its part to produce a draft in consultation with the public.
The decisions to be made now in the Hluttaw will shape Myanmar’s economic development and influence the protection of human rights and the environment for decades to come.
The much-criticized previous draft gave priority to investment protection over human rights.
Individual foreign investors could use arbitral panels to defeat government regulations if they hurt their profits – possibly even if such regulations were in line with Myanmar’s constitutional obligation to protect human rights.
The new draft of the national law, by contrast, refers to responsible investment and the protection of the environment.
It also sets out general exceptions to the protections for investors, allowing the government to regulate in favour of the environment and health.
It clarifies that Myanmar’s international legal commitments will be considered in arbitration.
This signals the government’s intention to regulate in these areas in the future. This intention should also be reflected in Myanmar’s BITs and the country should renegotiate old treaties that do not protect its ‘right to regulate’.
Myanmar has recently signed, though not yet ratified, the International Covenant on Economic Social and Cultural Rights, signaling its willingness to put in place policies to progressively achieve healthcare, education and social security.
These rights are also protected in Myanmar’s constitution. It is these types of rights that require the public policy regulation threatened by BITs.
Civil society’s concerns over the lack of human rights or environmental safeguards in investment law are not idle fears: investment protection can generate costly disputes – some arbitral awards run into the billions of dollars.
In effect, investors’ interests become legally protected, while the people of Myanmar must rely on the underdeveloped national legal system that does not provide adequate access to justice.
There are a growing number of international examples where new laws and regulations passed by democratically elected governments to protect economic, social and cultural rights have been challenged by foreign investors through BITs because they would decrease their profits.
For example, Phillip Morris Asia, a tobacco company, is using an ISDM to legally challenge the Australian government over its plain packaging regulations, which were designed to curb cigarette consumption.
Investment law should provide certainty to investors and protect their interests from random or discriminatory change to government regulations or policies.
But in Myanmar a wide range of laws and policies is missing or in nascent stages of development.
Improperly prioritizing protection for investors would dissuade Myanmar from adopting policies, such as strict environmental protection, public health or human rights standards.
Myanmar must ensure that it retains a right to regulate in both its national investment law and its international agreements.
These powers must be used for legitimate public policy rather than discriminatory protectionism.
Photo credit: Htoo Tay Zar
Sep 21, 2015 | Advocacy, Non-legal submissions
Today, the ICJ and Thai Lawyers for Human Rights (TLHR) made a joint submission to the Human Rights Council’s Working Group on the Universal Periodic Review in advance of the Human Rights Council’s review of Thailand in April/May 2016.
In their submission, the ICJ and TLHR expressed concern about the following issues:
(1) the impact of the new legal and institutional framework, imposed since the May 2014 coup d’état, on human rights in Thailand;
(2) instances of suspected enforced disappearance and torture; and
(3) issues concerning international human rights instruments and mechanisms.
A copy of the submission can be found here:
THAILAND-UPR SUBMISSION FINAL AS LODGED-Advocacy-Non legal submission-2015-ENG (full text in PDF)
Sep 16, 2015 | News
Myanmar’s government must end the practice of appointing newly retired military officials as judicial officers to its courts and ensure that the judiciary carries out its functions as a separate branch and independent of the Executive, said the ICJ today.
At least 20 former military officers who have just recently resigned from the military were reportedly appointed as vice director generals to the country’s Supreme Court this month.
They will be performing administrative functions but according to section 310 of the Myanmar Constitution will be in line for senior judicial appointments at the state or regional level after 5 years or sooner if the President considers them to be ‘eminent jurists’.
“One of the fundamental aspects of an independent, impartial and accountable judiciary is the appointment of judges, through proper procedures, on the basis of their legal competencies,” said Sam Zarifi, ICJ’s Asia Director. “The process for appointing and promoting judges must be transparent and ensure judicial independence and impartiality.”
A group of leading members of the Myanmar bar launched a “yellow ribbon” campaign last Friday in Yangon to protest the practice of assigning military officers to serve as judicial officers.
“The process of selecting these officers and assessing their legal qualifications is totally opaque,” Zarifi added. “The lawyers wearing yellow ribbons are emphasizing the belief of people in Myanmar that strengthening the rule of law is essential to guaranteeing justice and the country’s political and economic development, so it’s important to improve the judiciary’s qualifications and increase public trust.”
The Supreme Court of Myanmar launched its Strategic Plan 2015-2016, citing “judicial independence and accountability” as one of its key strategy areas.
The UN Basic Principles on the Independence of the Judiciary provide that that “Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law.”
“The Myanmar judiciary is trying to shake off decades of interference from the Executive branch in order to assert its proper role as defender of the rights of people in Myanmar, and it can’t do so without a clear and transparent appointment and promotion process,” Zarifi said.
An exposition and analysis of international law and standards are available in English and Myanmar language in the ICJ’s authoritative Practitioners’ Guide on the Independence and Accountability of Judges, Lawyers and Prosecutors.
Contact:
Sam Zarifi, ICJ Regional Director for Asia and the Pacific, t: +66 807819002; e: sam.zarifi(a)icj.org
Vani Sathisan, ICJ International Legal Adviser for Myanmar, t: +95 9250800301; e: vani.sathisan(a)icj.org
Sep 14, 2015 | News
The ICJ expressed disappointment over the decision made today by the Malaysian Federal Court to refer human rights defender Lena Hendry for trial, after dismissing the constitutional challenge on section 6(1)(b) of the Film Censorship Act 2002.
The ICJ said this provision is being applied in a manner inconsistent with the right to freedom of expression, which includes the right to seek and impart information of all kinds.
“The decision by the Federal Court is incompatible with the commitment to the rule of law and respect for human rights which was expressed by Malaysia during its last Universal Periodic Review at the UN Human Rights Council in 2013,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
“Lena Hendry is clearly a human rights defender and Malaysia has the special duty not only to respect her right to freedom of expression, but to protect her exercise of this right through the exposure of human rights violations in Sri Lanka,” he added.
The constitutional challenge was brought by the lawyers of Lena Hendry who was charged under section 6(1)(b) of the Film Censorship Act 2002 for screening the film “No Fire Zone: the Killing Fields of Sri Lanka” on 3 July 2013.
Authorities allege that she violated section 6(1)(b) of the law for showing a film that had not been approved by the Board of Censors.
The lawyers of Lena Hendry are now preparing for the trial before the Magistrate’s Court.
The ICJ calls on the Government of Malaysia to drop all charges against Lena Hendry and to undertake steps to make its laws consistent with the country’s obligations and commitments under international law.
Background:
Section 6(1)(b) of the Film Censorship Act 2002 states that “No person shall circulate, exhibit, distribute, display, manufacture, produce, sell, or hire any film or film publicity material, which has not been approved by the Board [of Censors].”
On 14 September 2015, the Federal Court of Malaysia dismissed the constitutional challenge on Section 6(1)(b) of the Film Censorship Act 2002. The question posed to the Federal Court was: “Whether section 6(1)(b) of the Film Censorship Act 2002 read together with section 6(2)(a) violates Article 10 read together with Article 8(1) of the Federal Constitution and therefore should be struck down and void for unconstitutionality.”
The Federal Court answered the question in the negative and ordered that the case be sent back to the High Court. The High Court, in turn, will transfer the matter back to the Magistrate’s court for trial. The Magistrate’s Court is where the matter initially originated.
If convicted, under section 6(2)(a) Lena Hendry could be fined up to RM30,000 (approximately US$6,900) and/or sentenced to up to three years imprisonment.
The right to freedom of expression is guaranteed in the Federal Constitution of Malaysia under Section 10(1)(a), which states that “every citizen has the right to freedom of speech and expression.”
The Universal Declaration of Human Rights and the UN Declaration on Human Rights Defenders also affirm the duty of all states to respect and facilitate freedom of expression, particularly as regards information or opinions about human rights.
Contact:
Emerlynne Gil, Senior International Legal Adviser of ICJ for Southeast Asia, t: +66 840923575 ; e: emerlynne.gil(a)icj.org
Sep 14, 2015 | Advocacy, Non-legal submissions
In advance of the UN Human Rights Council’s adoption of the outcome of its review of the Maldives’ human rights record as part of the Universal Periodic Review (UPR) process, the ICJ has submitted a written statement.
It highlights the Maldives’ failure to accept and implement a number of member states’ UPR recommendations.
In particular, the ICJ pointed out the urgent need for Maldives to accept and implement recommendations regarding the following issues, among others:
- Strengthening the independence and impartiality of the judiciary;
- Strengthening the independence and impartiality of the Judicial Service Commission;
- Strengthening the National Human Rights Commission, in accordance with the Paris Principles;
- Strengthening women’s representation in the judicial profession;
- Immediately releasing former president Mohamed Nasheed and other political prisoners, and ensuring the fairness of any further legal proceedings in such cases; and
- Safeguarding freedom of expression and media, association and peaceful assembly by investigating cases of human rights abuse and violations against journalists, civil society and human rights defenders, and taking effective measures to prevent further abuses
The Council will consider member states’ UPR recommendations for the Maldives during its 30th session on 24 September 2015, ahead of which the Maldives government will be expected to formally respond and indicate which of the recommendations it will commit to implement.
