By Khin Cho Ohn (The Office of the Union Attorney-General)
Rule of law is the fundamental foundation which will enhance peace, development, flourishing democracy, public security, and safeguarding fundamental rights for the interest of the State and people.
As for the Union Government, implementations to restore rule of law and to enhance the socio-economic lives of the people are being made, as a top priority.
Law enforcement officers, who are serving at the Office of the Union Attorney-General, are involved in the three organs of power — the legislative power, the administrative power and the judicial power of the state, while taking part in the process of the justice sector reform in the country.
Each country has practised different types of legal systems based on the provisions of local laws, procedures and ratification of international human rights treaties. But fair judicial standard and relevant rights are included in the international human rights treaties, and they are designated to safeguard the fundamental rights of relevant persons involved in the process of criminal investigation and administering justice.
In order to support the prevalence of the rule of law for the State, the Office of the Union Attorney-General has published a book on Fair Trial Standards for the benefit of law officers, so that they can be able to handle the cases effectively by studying and applying the said standards. Law officers should have integrity, impartiality, propriety, equality, competence, due dignity, responsibility and accountability in every case as they are legal servants of the State.
This book includes international standards, internal laws and judicial procedures, the 2008 State Constitution, the provisions in local laws, law reports, Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and 12 points of judicial standard, together with international standards of fairness.
Regarding the first point of “Equality Before the Law and Equal Protection of Law”, section 347 of the 2008 Constitution of Myanmar has prescribed that the union shall guarantee any person who is entitled to enjoy equal rights and equal protection before the law. Thus the book says it is needed for everyone to enjoy their rights regardless of race, religion, culture, social standing, gender and differences in wealth.
Regarding the second point, Article 43 of the 2008 Constitution of Myanmar states, “No penal law shall be enacted to provide retrospective effect”. Moreover it says that the purpose of this article was to restore rule of law in the country.
With regards to the phrase “presumption of innocence and the benefit of the doubt”, which states that guilt has not been proven and the accused person can then enjoy the presumption of innocence, just like everybody else, including persons who have not been accused of any crimes. No guilt can be presumed until the charges have been accused of any crime.
Regarding Article 11 of the Universal Declaration of Human Rights, everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have all the guarantees necessary for their defense. Moreover, no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
On the fourth point of human dignity, Article 44 of the 2008 Constitution of Myanmar states, “No penalty shall be prescribed that violates human dignity.”
Regarding the fifth point of “protection against the unlawful detention”, it says that the detention or arrest can be carried out lawfully, aiming to restore rule of law without violating one’s rights, according to the laws.
Law enforcement officers have to make sure that they understand and abide by the prescribed laws.
On the sixth point of “right to remain silent”; it states that people detained or arrested have a right to remain silent. The purpose of the right of remaining silent is to prevent people from hurting their cases by helping the police. As a general rule, when people choose to remain completely or partially silent, this cannot be interpreted as a sign that they are guilty. People detained or arrested but who know about and underst and their right to remain silent can speak to the police if they want to.
Regarding the seventh point of “right to speak to a lawyer”, Article 375 of the 2008 Constitution of Myanmar states, “An accused shall have the right to defence in accord with the law.” It means that the right to speak to a lawyer is a fundamental right and it allows people detained or arrested to discuss their rights and responsibilities with a lawyer.
The eighth point of “right to interpretation, right to translation, legal interpreting, and interpreting assistance”, means that in some cases, language is one of the vital communication tools, and a suspect has a right to effectively exercise their rights so that they might obtain information on their legal position. That requires the assistance of an interpreter or translator. Moreover, interpreters and translators play a crucial role in safeguarding a fair trial.
The ninth point of “freedom and impartiality of judges” states that for a free, good and fair standard for judicial ethics, it is a policy of free legal system of a country as well as an essential principal of the rule of law. The freedom of the judge can be referred to as judicial freedom.
The tenth point of “the right to public hearing” states that all persons shall be equal before the courts and tribunals. The hearing and judgment must be made in public.
Also a public hearing is a special type of public meeting for the purpose of governing body accepting public comment and testimony on local legislation.
The eleventh point of “the right of accused person in criminal proceeding” also states that an accused person must have the right to have effective participation in a criminal trial. He or she is entitled to be physically present to give evidence in person and be legally represented.
The twelfth point of “avoiding delayed judgment without sufficient reasons” states that the procedures for lodging judicial systems should be completed more quickly within a proper timeframe as a sign of fair justice system. The need for a time limit for delivering the judgment plays a pivotal role to improve the performance of the judicial system.
On the Office of the Union Attorney-General has been making all-out efforts to safeguard the fundamental rights of the individual citizen, and thus published a book on Fair Trial Standards, with the aim of empowering the capacity building of the law enforcement officers, enhancing judicial empowerment and strengthening the rule of law in the Union.
Translated by Win Ko Ko Aung