RULE OF LAW AND ACCESS TO JUSTICE 2015 Annual Report

Transcription

1 RULE OF LAW AND ACCESS TO JUSTICE 2015 Annual Report Output: Justice institutions equipped to develop and implement frameworks for justice sector reform that reflects the needs of diverse groups; especially women and vulnerable groups. Context: In 2015, justice sector institutions, lawyers and community leaders showed themselves better able to plan, coordinate institutional reforms, towards promoting rule of law and people s access to justice in Myanmar, and greater willingness and openness to tackling Myanmar s justice issues. However challenges still remain overall to the achievement of rule of law and human rights, and a coordinated strategy to address these is not yet in place. In the justice sector, both the Union Attorney General s Office and the Supreme Court of the Union have made progress in institutional reform strategies, putting both institutions in a better position to discuss and develop an overall justice sector reform strategy. The development of the Union Attorney General s Office Strategic Plan, which makes specific reference to international standards, rule of law and human rights, and sets priority actions around upholding fair trial standards and expanding legal assistance, is an indication of the improved planning capacity within the institution, and greater willingness to explore meaningful justice sector reform. While coordinated sector level planning has faltered due to a lack of clear political leadership and mandate, there have been selected examples in which various actors have come together, including through the Coordinating Body on Rule of Law Centers, joint training sessions, legislative development workshops, and regional roundtable discussions. The 2015 elections and the victory of the National League for Democracy, who have for several years prioritized rule of law reform and the achievement of an independent judiciary now represents a positive outlook for the future of coordinated reforms. The passage of the legal aid law is an important step towards improving the legal and institutional framework for access to justice, and an indication of greater openness to tackling access to justice issues, however there are a large number of areas in which new or revised laws are needed to update Myanmar s legal framework, and a lot depends on implementation. The legal aid law as it stands is aspirational; a lot remains to be done in order to establish and implement a nationally owned legal aid system including the collection of reliable data to inform realistic policy and allocation of a budget for system roll out. Public consultations were held on draft laws protecting vulnerable people (the legal aid, the anti- violence against women, and the child law): an important aspect of effective legislative drafting, and a step forward in protecting rights. However, the passage of the four protection of race and religion laws- the Monogamy Law, the Religious Conversion Law, Buddhist Women s Special Marriage Law, and Population Control Law- shows inconsistency in legislative development priorities, especially towards women s rights. From a legislative drafting perspective, the experience of the first Parliament has highlighted the importance of ensuring systematic and adequate consultation and public/expert input, and the challenges presented by the lack of a centralized expert legislative drafting office. Although the UAGO plays a key role in scrutinizing draft laws and coordinating between the executive and parliament, many new bills or amendments are prepared by private MPs or ministries that lack expert drafting capacity. As the second parliament and new government are formed, some important stocktaking could be valuable to capture lessons learned and streamline processes. 1

2 KEY ACTIVITIES TO DATE UNDP s assistance to justice sector institutions has been structured around the key areas of: 1) planning and coordination for a justice sector reform strategy that ensures access to justice for women and vulnerable groups; 2) improving government recognition of the need for adequate participation from those affected to ensure laws respond to public needs; and 3) equipping judicial officials and law officers with the skills and tools they need in order administer justice in accordance with international human rights standards, including promoting equality. Capacity for Coordinated and Participatory Justice Sector Policy and Planning: After a sustained process through much of 2015, the UAGO completed its first strategic plan, covering the period Led by a dedicated planning team with strong support from senior UAGO management, the plan secured strong buy-in through a highly consultative the development process, leading consultations with state/regional representatives, government clients, legal professionals, and development partners on the plans vision, mission and objectives. Draft Code of Ethics in the Judiciary UNDP continued its collaboration from 2014 with the International Commission of Jurists (ICJ) to support further progress in development of the OSCU s judicial ethics strategy. The OSCU established a judicial ethics committee and began drafting a new code of ethics, both of which were results from groundwork in In late November, UNDP and ICJ jointly convened a high level dialogue and workshop on judicial ethics. During this event, the OSCU Ethics Committee reviewed its new draft code of ethics. The draft code of ethics will be presented to the senior judges meeting in early 2016 and once finalized can be the subject of follow up technical assistance to develop accompanying training materials for all judicial officials. Legal Aid Law and Policy Advice on Legislative Development: Legal aid was a strong focus of UNDP technical assistance, with the introduction of a legal aid bill to Parliament. In close collaboration with the UAGO and UNODC, UNDP convened a consultation workshop in March This workshop brought together key justice actors and parliamentary representatives, along with international legal aid experts, to review the Bill and provide necessary input. UNDP led the preparation of a UN Country Team comprehensive analysis of the Bill which was shared with the Bills Committee and other key counterparts for consideration before the Bill was finalized and forwarded for Cabinet approval. Activities promoting gender equality and women s rights, cross-cutting all activities. Local level roundtables and community forums on sexual and gender based violence, domestic violence and legal aid, attended by justice actors as well as community members (male and female) allowed participants to identify together local justice priorities and provide recommendations for effective community engagement on these issues. Access to Justice Mapping (disaggregated by sex) asks about perceptions of gender roles, experience of disputes including sexual assault, and how disputes are settled and why that avenue was chosen. Prevention of Violence Against Women law UNDP provided technical inputs. Legislative Drafting Handbook makes strong provision for the consultation with stakeholders, emphasizing the need to ensure that vulnerable groups and women are part of the legislative development process. Rule of Law Trainings to government have encouraged participants analysis of gender and women s in the Constitution (2008). Legal Assistance to Victims of Sexual and Gender Based Violence and Domestic Violence gives women support to seek justice; the grant seeks to provide support to ensure due process in the courts. Rule of Law Centre training increases awareness of equality under the law and human rights; with focus on vulnerable groups, especially women and children; with sessions designed to learn about women s rights-related issues in Myanmar and explore available Myanmar and international laws in place to address these issues. 2

3 UNDP also contributed to the UN Country Team analysis of the Race and Religion package of laws and to the Prevention of Violence against Women Law, and provided input to the revisions of the Child Law and Suppression of Prostitution Law, focusing primarily on compliance with international human rights standards. The participation of the law officers from the Advocate General s Office (AGO) in Mandalay was essential in complementing the extensive work currently being done on the drafting of the law on the Prevention of Violence Against Women and was aimed at ensuring more awareness at the UAGO ahead of the implementation of the law. Handbook for Legislative Drafting: UNDP provided technical assistance for the development of a practical legislative drafting and vetting handbook. The handbook was drafted by a core group of legislative drafters from the UAGO and other parts of government. The process was guided by a joint questionnaire of over 20 ministries across government in 2014, which revealed low levels of experience and a clear demand for specialized guidance materials and training in legislative development. The Handbook includes a strong emphasis on consultation at all stages of the legislative drafting process and highlights processes by which to ensure that laws are accessible to the public and respond to public needs. It will form the basis of common guidance across government in 2016 and will be the source for development of training materials to ensure coherence and common approaches amongst those involved in legislative development. The handbook is expected to be published in the second quarter of Increased Legal Awareness, including Rule of Law Centres In 2015, following the independent evaluation of the pilot phase of the Rule of Law Centers project, UNDP established three additional centers in Mandalay, Taunggyi and Myitkyina. The fourth center was opened in Yangon in January These centers are running full training programs and delivering training courses and community outreach activities to legal professionals, justice sector actors, community representatives and the general public. To date, 152 people, including a core group of national trainers, have been trained. UNDP held regular roundtables with justice actors, law practitioners and members of the public: discussion topics included sexual and gender-based violence and domestic violence. These are being complemented by a micro-capital grant to Legal Clinic Myanmar for provision of legal assistance services in Mandalay Region for victims of sexual and gender based violence. The Rule of Law team s Rule of Law in Public Administration module was taught in several senior executive courses for the Union Civil Service Board, and a further version of the Rule of Law Training Centre curricula was taught in the Parliament s Learning Centre, to increase understanding of rights and of rule of law principles in the civil service and amongst Parliamentary staff. Capacity of Trainers and Training Institutes UNDP and IDLO are supporting and mentoring the training departments of the UAGO and OSCU in the establishment of capacity development plans and training program curriculum reviews to support the training needs of judicial officers, law officers and institutional staff- work which started towards the end of the year. In late 2015, UNDP conducted a survey of the OSCU trainees and trainers involved in the recruitment training, to gather feedback on training methods and content, and UNDP and the IDLO conducted a review of training assistance to date that identified remaining gaps in the institutional needs assessments and which will guide future mentoring efforts. ICT for Planning and Development: With the UAGO and OSCU now experienced in internal planning processes, In December 2015 an initial first step was taken towards sector-wide coordination and planning tools, through a meeting on common approaches to using ICT tools for justice sector statistical development. Awareness among justice institutions of the importance of clear indicators and data sources to inform policy and monitor progress has been built in the process. UNDP continues to assist the institutions to identify and manage data that is essential for planning and analysis of institutional work. In 2015, UNDP provided technical assistance to the UAGO and OSCU on coordinated justice sector ICT strategies as part of justice sector reform, through an international expert on ICT strategies for justice and government systems. The support involved a review of the ICT systems 3

4 currently in place, and provided guidance on developing an ICT strategy that serves the longer term needs of the justice sector, including serving as a public accountability tool and for supporting judicial independence. Clinical Legal Education: In 2015, partnership continued with BABSEA CLE for the development implementation and of clinical legal education (CLE) curriculum and programs at 17 Myanmar universities. These law departments are engaged in developing CLE programs and applying the use of CLE methods in their doctrinal law courses. Most of the law departments have developed one or more different type of CLE program models, including community teachings, externships, in-house consultation clinics and mock trials. Twelve (12) Myanmar law teachers completed their placement at the BABSEA CLE International Training Centre/Externship Clinic in Chiang Mai, Thailand; a 3 month experience which developed their skills and capacities in a variety of essential CLE skills and methods including mock trials, CLE English, community teaching, proposal writing and organizational skills. Research in Rakhine: Following approvals from the government and state/regional authorities, UNDP was able to embark on the first phase of the mapping of formal and informal justice systems in Rakhine in 2015 was carried out in Sittwe, Rathedaung, Mrauk U, Thandwe, and Kyaukphyu. The findings can inform UNDP s programming and provide an evidence base for discussion with justice counterparts, especially enhancing understanding of the challenges that women face in accessing justice; and how respondents handle disputes related to domestic violence and sexual and gender based violence. RESULTS REPORTING Rule of Law Output Indicators Annual Targets Progress Towards Targets Number of mid-level officials Fifteen, through at least five from justice institutions (the mentoring sessions to Supreme Court and the support (i) curriculum Attorney General Office) development on fair trail trained to develop and principles and (ii) teaching deliver training programs to skills. meet the needs of justice period. sector reform. Number of university Law Departments that include clinical legal education in their curricula. Percentage of trainees (involving justice institutions and law departments) reporting the relevance of training for practice use. Four university law departments 60% of justice actors trained by UNDP and law departments reporting relevance of training for practical use. Not Achieved. Training departments of the UAGO and OSCU benefit from mentoring on curriculum development, but no training of trainers on fair trial standards conducted during the reporting Training of trainers programs in 2016 were dependent on capacity development plans which are yet to be produced and approved. Exceeded. 17 universities are applying Clinical Legal Education teaching modalities and principles. 16 university law departments have signed Memorandums of Understanding on full integration into curricula. Exceeded. 72% of 25 training of training recipients, 87% of 57 civil society representatives reported improved skills gains as a result of Rule of Law Centers and Clinical Legal Education programs, noting relevance of training. All 12 Myanmar law teachers who went through the CLE training program have reported improvement in their capacity in a variety of essential CLE skills and 4

5 Number of actions taken by Justice institutions to promote consultative and legislative participatory development. Use of new approaches to raise legal awareness of vulnerable groups in targeted areas Number of examples in which justice sector actors have responded to the priority justice needs of vulnerable people (e.g. action in specific cases or development of protocols/strategies) Number of justice sector policies/plans initiated to improve coordination on crosscutting justice concerns. methods, such as mock trials, CLE English, community teaching, proposal writing, and organizational skills. Two consultations. Exceeded. 4 actions: 3 national consultations held on draft laws (legal aid, prevention of violence against women, child law), and a handbook for legislative development drafted that makes provision for public participation in future drafting. Handbook to be published in early 2016 and will form basis for the development of training materials One or more of the following approaches utilized: mobile clinics, multiple reinforcement, small-group training, and community-based support groups; and at least totaling six times per target area per year. Two examples of justice sector actor responses. Exceeded. Small group training and community forums used to raise legal awareness. 4 local level roundtables held to discuss draft laws and women's rights issues; 2 Rule of Law Centers trained academics and civil society in Shan, Mandalay and Kachin on justice issues over a 6 month period, holding mock trials and community discussion sessions. Exceeded. While UNDP did not drive these processes, UNDP provided input to the government s drafts of three laws addressing justice needs (Legal Aid, Prevention of Violence Against Women, and the Child Law). The latter two are pending finalization. In Shan State and Mandalay Region, justice officials (including the Police Force and Department of Social Welfare) discussed domestic violence and sexual and gender based violence with communities, and gained insight on how to better respond to the needs of vulnerable groups. One policy/plan initiated. Achieved. UAGO Strategic Plan developed through participatory process; the Plan has been finalized and will be launched and widely disseminated in January There is now a growing commitment to and understanding of the need for better justice sector data collection and analysis. UAGO and the OSCU met jointly with the Central Statistics Office and representatives of other justice sector actors to discuss a coordinated justice sector ICT strategy for case information management, and the benefits of 5

6 Justice sector institutions capacity development plans produced and steps toward implementation undertaken One capacity development plan from the second justice institution. measuring improvements to justice and the rule of law. Not achieved. UAGO focus in 2015 was on development of Strategic Plan which emphasizes importance of reviewing and strengthening institutional training curricula. Development of capacity development plan was dependent on approval of Strategic Plan; which came through late in Technical assistance capacity development mission completed at UAGO and OSCU training departments to measure progress and provide guidance for development of capacity development plans. KEY RESULTS Justice institutions have accumulated good experience in reform planning and strategizing, and are now both better able, and more willing, to take steps towards sector wide coordination and planning. The Union Attorney General s Office Strategic Plan (2015) notes that the UAGO will be proactive in sector-wide justice sector reform development, and includes clear objectives, actions, and indicators for increasing justice sector coordination and the development of a justice sector reform strategy. This is all the more significant given the high level of leadership and ownership within the Office for the plan, from Union to State and Region level. The planning teams responsible for leading Strategic Plan development, especially in the Union Attorney General s Office which took a consultative approach to Plan formulation but also to an extent in the Office of the Supreme Court of the Union, can use their experience in the development of a coordinated justice sector strategy. However, as the UAGO Strategic Plan notes, our history as an institution has helped us build leadership and management appropriate to the mandate we were given. New expectations require entirely different knowledge, skills and outlooks, - this year, the UAGO for the first time presented an outline of a training plan for 2016, along with the opening of the new UAGO Training Centre, which will provide a basis for coordinated international support to skills development, including on leadership and change management. There is some limited evidence within justice institutions of willingness to promote human rights as part of justice sector reform. The Union Attorney General s Office contains commitments for greater rights protection in the conduct of prosecutions and legislative development, particularly emphasizing fair trials, ethics, legal aid, and increasing public awareness (mentioning children and youth, as well as adults). Ethics and fairness are common elements in both the UAGO and OSCU plans, and there has been some progress on both fronts: to date, 200 law officers in Mandalay, Bago We will protect and support the rights and responsibilities of individuals so that Myanmar s development as a democratic nation is based on justice, good governance and integrity. UAGO Strategic Plan (2015-9), Vision. and Yangon have been exposed to training on fair trial standards by the UAGO, with a curriculum first developed by UNDP, and the OSCU has developed draft code for judicial ethics. Neither the UAGO nor the OSCU Strategic Plans contain specific provisions for gender and women s rights as important underpinnings for the achievement of rule of law. 6

7 Specific measures to enhance gender and gender equality within the justice sector have been limited, although justice actor s participation the passage of the legal aid law and the drafting of the prevention of violence against women law, and the child law, indicate a willingness to improve access to justice for the poor, including women. Justice actors have shown increasing willingness to enhance their understanding of justice issues on the groundfor example, engaging in UNDP s highly sensitive study on how people access justice in the formal and informal systems in Rakhine. This will better enable them to understand and promote rights protections, including for women, in future laws and reform strategies. The process for developing the legal aid law, which included public consultations and inputs from people and institutions with technical expertise (including the UN), is a step in the right direction, and the legislative drafting Handbook demonstrates an appreciation of participation and accountability in legislative development, which UNDP sees as among the principles underpinning a human rights based approach. CROSS OUTPUT LINKAGES In partnership with the Public Administration Responsiveness Output, developed a Rule of Law in Public Administration module for Union Civil Service Board training; an equivalent module is being developed for the Parliamentary Learning Center Collaboration with Public Administration Responsiveness Output on public confidence and integrity measures; Close coordination on inputs to the Bills Committee and Rule of Law Committee Collaboration with the Social Cohesion and Governance Output on dialogue skills training with a view to building trust between civil society and government and creating spaces for dialogue in Shan and Mandalay Worked closely with the Public Administration Responsiveness (PAR) Output on the UAGO Strategic Plan: the Chief Technical Advisor provided input to the UAGO Strategic Plan to ensure that recommendations were consistent with the Framework for Administrative Reform; particularly with regard to the permanent secretary office structures In collaboration with the PAR Output, convened a discussion on administrative law with the Presidents Office and the UAGO to gain insights and inputs to an options paper Collaboration with Parliament to deliver training to Hluttaw staff on rule of law principles and to provide inputs to the development of a legislative drafting handbook with UAGO PARTNERS Donors: Australia, Denmark, Finland, Sweden, UK DFID Implementing Partners: IDLO: UAGO and OSCU Training of Trainers, Rule of Law Centers Project BABSEA CLE: Clinical legal education to law departments at Myanmar universities Other Partners: UNODC: Security sector and legal aid reform UNFPA: Women s access to justice/ Sexual and gender-based violence International Commission of Jurists: Judicial ethics and accountability JICA: Judicial planning and training 7

8 USAID/DAI: Case management systems at the OSCU, Rule of Law Centers Pilot Project (in kind assistance) Legal Clinic Myanmar: Women s Access to Justice in Mandalay BUDGET Total 2015 Budget as per Approved Work Plan: USD$ 3,367,058 Total Expenditure as of 31 December 2015: USD$ 3,135,717 LESSONS LEARNED AND CHALLENGES As a result of the November 2015 elections, project implementation slowed significantly during the third quarter as government approval processes lengthened. UNDP continued to plan ahead and pre-empt delays by ensuring that concept papers and write ups for different levels of decision makers in the institution were prepared and submitted well in advance of the start date of activities: in times of political uncertainty, even more advance preparation is required. Often times, despite discussions, negotiations and eventual approvals regarding an activity, approvals have been rescinded as activities are just about to start. This results in a major setback in progress against delivery and may appear to be a waste of time and resources. The lack of decentralized decision-making remains a challenge. UNDP faced the challenge of being unable to implement activities at state/regional level without explicit approval from Nay Pyi Taw. Although UNDP consults senior level management in Nay Pyi Taw, who grant the approval for activities to move forward, authorities at local level are hesitant to proceed without written guarantees and explicit permission from the Union level authorities. LOOKING AHEAD The incoming government has already identified rule of law and judicial reform as a major priority. This opens the possibilities for more significant progress on both structural and operational reforms, including in the areas of legal aid and judicial independence and accountability. UNDP will continue to play its valued coordination role not only within and between the justice institutions, but amongst development partners, civil society organizations and other justice sector actors. In 2016, UNDP will continue working with partners to enable them to develop an overall approach to justice sector reform, to implement existing strategic plans, and to have a more inclusive and participatory approach to policymaking- stepping up efforts to promote gender equality, which is an element missing from current plans. UNDP will also work towards improving public trust and accountability in the justice system by building capacities on fair trails and ethics; working with selected pilot courts to develop ways to inform people about their procedures and laws and to improve case management (which will increase access to accurate justice sector data); and providing assistance towards the implementation of legal aid law as a means to support access to justice. In 2016, UNDP will promote better rule of law and human rights awareness at local level delivered through the Rule of Law Centers (UNDP and IDLO are working to prepare options for the future phase of this, including linkages with the parliaments at state and region level, for the consideration of the managing body); specific partnerships with the national rural women s network on issues such as women s rights and sexual and gender-based violence; the mapping of justice service delivery in Shan, Rakhine and Kachin States. UNDP will continue collaboration with universities to enhance legal education and skills. 8