The availability and provision of quality legal education and continuing education is essential to ensuring that legal professionals are competent and able to play their essential role in contributing to ensuring respect for the rule of law, the protection and promotion of human rights and the fair administration of justice.
The Basic Principles on the Independence of the Judiciary provide that persons selected for judicial office must have “appropriate training or qualifications in law”.{{176}} Furthermore, the Singhvi Declaration places a duty on judges to “keep themselves informed about international conventions and other instruments establishing human rights norms”.{{177}} The Bangalore Principles of Judicial Conduct add that “a judge shall take reasonable steps to maintain and enhance the judge’s knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control”.{{178}}
The Guidelines on the Role of Prosecutors likewise specify they shall be individuals “with appropriate training and qualifications”.{{179}} States must ensure that they meet this criterion and that prosecutors be made aware of the ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law.{{180}} Prosecutors have a duty to “keep themselves well-informed and abreast of legal developments”.{{181}}
The Basic Principles on the Role of Lawyers place a duty on governments, professional associations of lawyers and educational institutions to ensure that lawyers have appropriate education and training and are aware of lawyers’ ethical duties and of human rights and fundamental freedoms recognized by national and international law.{{182}} Further, they should take special measures to provide opportunities and ensure needs-appropriate training for law students from groups whose needs for legal services are not consistently met, particularly including those who have distinct cultures, traditions or languages or have been the victims of past discrimination.{{183}} Legal education must be open to all persons with requisite qualifications and no one shall be denied such opportunity by reason of race, colour, sex, religion, political or other opinion, national, linguistic or social origin, property, income, birth or status.{{184}}
The UN Special Rapporteur on the independence of judges and lawyers has recommended that magistrates, judges, prosecutors, public defenders and lawyers should be requested to take courses on international human rights law. She also recommended that on-going legal education should be mandatory at all levels.{{185}} The Singhvi Declaration states that “continuing legal education shall be available to judges”.{{186}}
Legal education in Myanmar is undermined by, among other factors, low admissions standards, corruption, poor curriculum and methods of instruction, and English-language examination requirements. Graduates are generally considered to be ill prepared to practice law after completing their studies.
Problems related to ensuring the independence of the legal profession in Myanmar begin in law school. Myanmar’s education system deteriorated greatly during decades of military rule. Legal education in particular suffered after 1974, and again after the 1988 pro-democracy uprising. Law is considered as one of the less desirable fields of study, and therefore attracts students with lower academic qualifications.
Lawyers, including legal academics, who spoke with the ICJ were unanimous in their characterization of legal education in the country as very poor. Specific factors include low entry requirements for students, unqualified law faculty professors, a narrow and much out-dated curriculum and inadequate connections with educational institutions in other countries. There is little confidence in the preparedness of law graduates to practice their profession effectively.
For many years, Yangon University’s law school was the only law school in the country. There are now 11 institutions that provide some form of legal education. Some lawyers believe previous governments acted explicitly to downgrade and discredit the legal profession. One fact frequently cited in support of this allegation is the extremely low entry requirements for law programmes, which vary yearly and among universities, and whose minimum scores are pegged to admissions targets set by the Ministry of Education. Students, lawyers, and legal instructors agreed, however, that the entrance scores are consistently the lowest among all professional schools.{{187}}
A major factor in the lowering of such requirements is the high level of enrolment in the distance-learning education programme initiated in the mid-1970s for students pursuing law degrees. {{188}} Today, this programme operates under two Universities of Distance Education (UDE) in Yangon and Mandalay, and is the most popular method of obtaining a law degree in Myanmar. Qualifications for enrolment in the programme are minimal, and lawyers and legal faculty hold it in very low regard. With minimal contact between students and faculty, students prepare for English language examinations through pre-test ‘intensive courses’ in which they are provided with the questions that will be asked on exams.{{189}}
The language of the law curriculum and examinations is a major point of criticism among lawyers. Since at least the mid-1990s, the official language of legal instruction and examination has been English; previously it was the Myanmar language.{{190}} However, few law students have adequate proficiency in the language, making comprehension of the lectures and materials extremely limited. Lecturers often resort to explaining English language curriculum in the Myanmar language, despite being responsible for preparing students for written tests that are administered in English. Recent law school graduates describe rote memorization of English language questions and answers from review materials provided in advance or during study sessions with professors, without comprehending the content of questions and answers.
Although President Thein Sein and Aung San Suu Kyi have spoken out about the need for educational initiatives and the government has increased funding for education, progress in revitalizing the country’s schools and universities has been slow. One exception is the supplementary training programme provided to newly hired government lawyers, which impart basic legal knowledge and skills.
[[176]]176. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 10.”]Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.[/expand][[176]]
[[177]]177. Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 40.”]Judges shall keep themselves informed about international conventions and other instruments establishing human rights norms, and shall seek to implement them as far as feasible, within the limits set by their national constitutions and laws.[/expand] See Bangalore Principles of Judicial Conduct, [expand title=”Value 6:”]Competence and diligence are prerequisites to the due performance of judicial office. [/expand] Competence and diligence, [expand title=”6.4.”]A judge shall keep himself or herself informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.[/expand][[177]]
[[178]]178. See Bangalore Principles of Judicial Conduct, [expand title=”Value 6:”]Competence and diligence are prerequisites to the due performance of judicial office.[/expand] Competence and diligence, [expand title=”6.3.”]A judge shall take reasonable steps to maintain and enhance the judge’s knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges.[/expand][[178]]
[[179]]179. UN Guidelines on the Role of Prosecutors, [expand title=”Guideline 1.”]Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications.[/expand][[179]]
[[180]]180. UN Guidelines on the Role of Prosecutors, [expand title=”Guideline 2(b).”]States shall ensure that… (b) Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law. [/expand][[180]]
[[181]]181. International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, [expand title=”Article 1.”]Prosecutors shall: at all times maintain the honour and dignity of their profession; always conduct themselves professionally, in accordance with the law and the rules and ethics of their profession; at all times exercise the highest standards of integrity and care; keep themselves well-informed and abreast of relevant legal developments; strive to be, and to be seen to be, consistent, independent and impartial; always protect an accused person’s right to a fair trial, and in particular ensure that evidence favourable to the accused is disclosed in accordance with the law or the requirements of a fair trial; always serve and protect the public interest; respect, protect and uphold the universal concept of human dignity and human rights.[/expand][[181]]
[[182]]182. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 9.”]Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law. [/expand] See International Bar Association (IBA), Standards for the Independence of the Legal Profession, [expand title=”Standards 2-4.”]
2. Legal education shall be open to all persons with requisite qualifications and no one shall be denied such opportunity by reason of race, colour, sex, religion, political or other opinion, national or social origin, property, birth, status or physical disability.
3. Legal education shall be designed to promote knowledge and understanding of the role and the skills required in practising as a lawyer, including awareness of the legal and ethical duties of a lawyer and of the human rights and fundamental freedoms recognised within the given jurisdiction and by international law.
4. Programmes of legal education shall have regard to the social responsibilities of the lawyer, including co-operation in providing legal services to the needy and the promotion and defence of legal rights of whatever nature whether economic, social, cultural, civil and political and specially rights of such nature in the process of development.[/expand][[182]]
[[183]]183. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 11.”]In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups.[/expand][[183]]
[[184]]184. Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 77.”]Legal education and entry into the legal profession shall be open to all persons with requisite qualifications and no one shall be denied such opportunity by reason of race, colour, sex, religion, political or other opinion, national, linguistic or social origin, property, income, birth or status.[/expand][[184]]
[[185]]185. Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers, Advance report on the global thematic study on human rights education and training of legal professionals, UN Doc. A/HRC/20/20 (2012), [expand title=”para. 112.”]Magistrates, judges, prosecutors, public defenders and lawyers should be requested to take courses on international human rights law. Ongoing legal education should be mandatory for judges, magistrates, prosecutors, public legal defenders and lawyers at all levels. Law and political and social sciences students could also be encouraged to follow such courses during their education.[/expand][[185]]
[[186]]186. Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 12.”]Continuing education shall be available to judges.[/expand][[186]]
[[187]]187. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), p. 31-32.[[187]]
[[188]]188. Myint Zan, Legal Education in Burma since the 1960s, unedited electronic version of articles that appeared in The Journal of Burma Studies, p. 14. (Last accessed 20 March 2014).[[188]]
[[189]]189. Ibid., p. 19.[[189]]
[[190]]190. Ibid., p. 7.[[190]]
