Current and Future Legal Aid System in Myanmar Presented by U Kyaw San Director 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

C URRENT L EGAL B ASIC OF THE C URRENT L EGAL A ID S YSTEM 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 3

L EGAL B ASIC OF E XPENSES FOR D OCK B RIEF L AWYERS 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. 4

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 5 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 6 Contd:

P ROCEDURES 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 7

(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 8 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 9 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) 11 Contd:

C HALLENGES OF C URRENT L EGAL A ID S YSTEM IN M YANMAR 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 12

T O SET UP EFFECTIVE LEGAL AID SYSTEM IN M YANMAR 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 January 2013, UAGO and UNDP hold Joint Seminar on Promoting Justice Sector Development in New Democracy 13

C ONTD : 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 14

C ONTD : 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. 15

C ONTD : 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 16

C ONTD : 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 17

C ONTD : 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 18

C ONTD : 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 19

C ONTD : 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 20

C URRENT S TATE F UNDED FOR DOCK BRIEF CASES ( FISCAL YEAR ) 399 criminal cases Total number of cases 9,576,000 kyats Total amount of provided funding Illegal Drugs Cases (90 cases) Murder Cases (307 cases) Armed Act Cases (2 cases) Kinds of funded cases 21

C ONTD : 45 districts Total funded districts 12 mentions 2000 kyats per mention Total average of mentions kyats Average funded for per case 22

T O CONSIDER N ATIONAL B UDGET FOR THE D RAFT L AW 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) ( to ) Estimated total cost for 5248X 24000= 125,952,000 kyats 23

N EW L EGAL A ID L AW 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 24

C ONTD :  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 25

R ECOMMENDATIONS OF N ATIONAL L EGAL A ID W ORKSHOP IN M YANMAR ( ON 24 TH AND 25 TH M ARCH 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 26

27 Sustainable as backbone Government Provides the Budget for offenders at least ten years and upwards to capital punishment, gradually expended downwards cases 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 funding to legal aid body or CSO, Lawyers Group Fill up the gap in, out of government provides cases INGOs + NGOs funding to 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 Service Provider Accessible Mechanism of Legal Aid Body and Committees accountability Affordable Service Provider

L EGAL A ID S ERVICE P ROVIDER 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 28

29 THANK YOU