Current and Future Legal Aid System in Myanmar

Presented byU Kyaw SanDirector General Union Attorney General’s Office

In Myanmar Court Manual (1949 G-Circular No. 17), Para 457 (MCM)– Court Procedures Para 458 _ Free of Charge for certified copy of documents In the Socialist Area, Section 89 (g) of the Law Relating to the

Rights and Duties of Township People’s Council Executive Board

Refers to Section 492 (2) of the Code of Criminal Procedure and MCM Para 457

Also refers Notification No. 5/1976 of the State People’s Council, Para 50

Attorney General Law 2001 (Section 9(j))2

Current Legal Aid System

CURRENT LEGAL BASIC OF THE CURRENT LEGAL AID SYSTEM

The Attorney-General of the Union Law 2010 Hiring a lawyer to appear for the accused in poverty who

is accused of a criminal offence punishable with death (Section 36 (l))

The Union Attorney General Rules 2001 (Rule 79) Afford to hire a defence lawyer Punishable with death due to poverty at the expenses of government

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LEGAL BASIC OF EXPENSES FOR DOCK BRIEF LAWYERS

Requisition Order for travel expenses and daily allowance for dock brief lawyers (1978, 1980,1982, 1983, 1985, 1987)

Notifications of stipulated expenses rate for dock brief lawyers (No.1/1993 and No. 1/2013)

According to Requisition Order 1978, the Council of People’s Attorney gave expenses for travelling and daily allowance.

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Stipulated cases are as follows (Rule 79); (1) original cases of offence punishable with death sentence (2) offence in which child or youth is alleged with offence

punishable with death sentence (3) appeal submitted by the Office of the Union Attorney

General Under section 417 of the Code of Criminal Procedure Against the death sentence if convicted (4) revision (5) confirmation on death sentences heard by the Supreme

Court of the Union Under section 374 of the Criminal Procedure Code

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Contd:

(6) enquiry heard by the Supreme Court of the Union According to section 375 of the Code of Criminal Procedure (7) miscellaneous application heard by the Supreme Court of

the Union, Special Bench (or) miscellaneous application by the accused on the death sentence

(8) special appeal heard by the Supreme Court of the Union, Special Appeal Branch (or) special appeal by the accused upon the death sentence

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Contd:

PROCEDURES FOR CURRENT LEGAL AID SYSTEM

The accused with offence punishable with death submits the application to the relevant Court (Rule 79)

Mentions that he cannot afford to hire a lawyer due to poverty The Court shall notify To the Office of the Union Attorney General and relevant Law

Office Shall hire a defence lawyer for the accused in poverty At the expense of the government

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(Rule 80) The Office of the Union Attorney General and the various levels of Law Office

Shall prepare the list of the lawyers according to the relevant region

Mentioned cases in Rule 79 Shall be arranged to be conducted alternatively Shall issue the Law Officer Prosecution Form 6 To the alternative dock brief lawyer To allow conducting in the case Normally only one dock brief lawyer for each accused in a case

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Contd:

In a case of many accused Shall hire only one lawyer for the accused with same line of

defence If different, Shall hire separate lawyers for each accused

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Contd:

Fees entitled to (Rule 82) Obtain fee for the effective hearing dates, including the date of

delivering judgment ( under budget heading 0301) If the lawyer is from other region, To obtain travelling allowances ( under budget heading 0304) According to the rates of the Travelling Allowance Manual As prescribed for the lawyers hired by the government Conduct the case to the end Effective hearing dates (Rule 83) Be deemed to include the dates adjourned by the Court Not for the default of the lawyers but for any other cause 10

Contd:

Taking necessary action on the dock-brief lawyer The State, Region, District and Township Law Offices - Shall submit to the Office of the Union Attorney General To take necessary action on dock-brief lawyer Be assigned duty to conduct for the accused in poverty For taking necessary action for the violation of lawyers ethic

under sub-rule 81 If intentionally fails to conduct the case to the end according to

rule 82 of sub-rule (c)

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Contd:

CHALLENGES OF CURRENT LEGAL AID SYSTEM IN MYANMAR

Myanmar only supports for suspects punishable with capital punishment, Need to consider pretrial stage

Needs to consider legal aid system covered for all serious criminal cases

Needs legal aid law for accountable, sustainable, affordable and accessible

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TO SET UP EFFECTIVE LEGAL AID SYSTEM IN MYANMAR

Taking into consideration of the following; Principle 1 of UN Guideline _ Right to legal aid 2008 Constitution section 347 and 375 Myanmar has political will to set up effective legal aid system Since 24-25 January 2013, UAGO and UNDP hold Joint

Seminar on Promoting Justice Sector Development in New Democracy

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CONTD:

Principle 2 of UN Guideline _ Responsibilities of the State Since 1949 G-Circular No.17 refers to MCM Article 457 Section 36 (l) of the Attorney General of the Union Law 2010 Notifications of stipulated expenses rate for dock brief lawyers

(No.1/1993 and No. 1/2013), Budget Headings 0301 and 0304 Principle 3 of UN Guideline _ Legal aid for persons suspected of or

charged with a criminal offence Present system provides Capital Punishment only (Section 36 (l) and

Rule 79) To be considered in the draft law and expand gradually depend on the

Budget If financing from INGO and NGO, the Draft Law establishes the

financial management body for accountable and sustainable of legal aid

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CONTD:

Principle 4 of the UN Guideline - Legal aid for victims of crime

If INGO or NGO financing amount to cover for victims, the Draft Law should be considered to establish the management body to implement for victims

Principle 5 - Legal aid for witnesses It should be considered whether it is in line with our present

legal practice or not.

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CONTD:

Principle 6 - Non-discrimination Our legal principle has no discrimination Principle 7 - Prompt and effective provision of

legal aid In present system, on the first day of the accused

before the court, the court decided to hire the lawyer for him and inform to relevant law office, if the accused cannot afford to hire lawyer by himself

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CONTD:

Principle 8 - Right to be informed This principle is not mentioned in the Criminal

Procedure yet Myanmar Police Force to be considered and discuss on it Principle 9 - Remedies and safeguard At our present situation under the Para 457 of MCM,

relevant court does not start to hearing without defence lawyer on such capital punishment case

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CONTD: Principle 10 - Equity in access to legal aid Myanmar has political will to provide equity not only in criminal cases

but also in civil cases for poor people due to reduction of poverty But limited government budget depend on economic growth of State For the sustainable of legal aid, government should provide the budget

as a backbone If the economic develops, harmonizing with GDP, legal aid gradually

will increase the offences certain specified punishment To be considered together funding from INGO and NGO are much

covered to increase the offences certain specified punishment Principle 11 - Legal aid in the best interests of the child For the interest of justice, regarding the alleged capital punishment

offence, government provides the legal aid, to be considered legal aid body to provides child offender

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CONTD: Principle 12 - Independence and protection of legal aid

providers The present principle and practice has independence and in

accordance with the immunities of legal practitioners act except misconduct

Principle 13 - Competence and accountability of legal aid providers

The current situation under the Bar Council Act and the Legal Practitioners Act allow to practice: There are two categories of lawyer: Advocate and Higher Grade Pleader

The legal aid before the Court can only apply those lawyers

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CONTD:

Principle 14 – Partnerships Present practice had already been recognized for the

contribution of lawyers’ association To be considered in the Draft Law in respect of universities,

civil society and other groups and institutions

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CURRENT STATE FUNDED FOR DOCK BRIEF CASES

(2014-2015 FISCAL YEAR)

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CONTD:

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TO CONSIDER NATIONAL BUDGET FOR THE DRAFT LAW

Present legal aid provides capital punishment cases only Now is going to expand minimum punishable at least 10 years

imprisonment cases Approximately 5248 ( including Capital punishment cases)

(1-4-2014 to 28-2-2015) Estimated total cost for 5248X 24000= 125,952,000 kyats

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NEW LEGAL AID LAW

New legal aid law should have 4 objectives (accountable, sustainable, affordable and accessible)

Establish legal aid body as a monitoring mechanism Budget management ( open ended financial burden) Monitoring the lawyers To be in line with the current legal aid system as provided in

respective laws

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CONTD:

It must be cost and effective It must be efficient Quality Service of Lawyers National budget and international assistance Accountable, sustainable, affordable and accessible Gradually forward step by step

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RECOMMENDATIONS OF NATIONAL LEGAL AID WORKSHOP IN MYANMAR

(ON 24TH AND 25TH MARCH 2015)

UAGO, UNDP and UNODC jointly organized command as action points (31points under the

four headings). Four Headings Legal Aid Body Quality Assurance Beneficiaries Legal Aid Providers and Types of Services

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Sustainable as

backbone

Government Provides the Budget

for offenders

at least ten years and

upwards to capital

punishment, gradually expended

downwards cases

Fill up the gap in, out

of government provides

cases

INGOs + NGOs

fundingto legal aid

body or CSO,

Lawyers Group

The Union Level Legal Aid Body

Regions and States Level

Legal Aid Committees

District Level Legal Aid

Committees

Township Level Legal Aid

Committees

accountability

accountability

accountability

Service Provide

r

Service Provide

r

Service Provide

r

Accessible Mechanism of Legal Aid Body and Committees

accountability

Affordable

Service Provide

r

LEGAL AID SERVICE PROVIDER

Private Lawyers listed at legal aid body Pro Bono Lawyers individual or group listed

at legal aid body or concerned committee Lawyers group which are accredited by

legal aid body funding by INGOs and NGOs They can conduct independently but

accountable to concerned legal body or committee

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THANK YOU