Development Engagement Document Denmark-Myanmar Country Programme 2016 - 2020 Thematic Programme: Peace, Rule of Law and Human Rights - Ministry ...
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Ministry of Foreign Affairs of Denmark
Embassy of Denmark, Myanmar
Development Engagement Document
Denmark-Myanmar Country Programme 2016 – 2020
Thematic Programme: Peace, Rule of Law and Human Rights
Support for Rule of Law and Human Rights
August 2016Table of content
1. Introduction.................................................................................................................................................... 3
2. Background..................................................................................................................................................... 3
2.1. Human rights in Myanmar........................................................................................................................ 3
2.2 The Supreme Court of the Union and the Union Attorney General’s Office ............................................. 4
2.3 Legal education and research ..................................................................................................................... 5
2.4 Lawyers and CSOs .................................................................................................................................... 6
2.5 Justification ............................................................................................................................................... 6
2.6 Lessons learned ......................................................................................................................................... 7
3. Development Engagement Objective .............................................................................................................. 8
4. Expected outcome .......................................................................................................................................... 8
5. Theory of change and support strategy............................................................................................................ 9
5.1. Theory of change ..................................................................................................................................... 9
5.2 Assumptions ........................................................................................................................................... 10
5.3 Approach to capacity development ......................................................................................................... 11
5.4 Synergies ................................................................................................................................................. 12
5.5 Implementation approach ....................................................................................................................... 12
6. Outputs and key areas of activity ................................................................................................................... 14
6.1 Human rights education .......................................................................................................................... 14
6.1.1 Human rights education established at two universities..................................................................... 14
6.1.2 Access to human rights knowledge through human rights resource centers ...................................... 15
6.1.3 Enhanced access to justice through university legal aid clinics .......................................................... 16
6.1.4 Evidence-based policy discourse on human rights, rule of law and justice sector reform ................... 16
6.2 CSO and lawyer capacity to advance and apply human rights .................................................................. 17
6.2.1 Capacity of CSOs to monitor and document human rights violations and advocate for effective
responses .................................................................................................................................................. 17
6.2.2 Capacity of lawyers’ network to advance human rights through litigation ......................................... 18
6.2.3 Capacity in independent bar association to advise lawyers on human rights ...................................... 19
6.3 Judicial and UAGO capacity on judicial ethics and human rights............................................................. 19
6.3.1 Judicial capacity to incorporate human rights law and standards in its decisions and assert its
independence ............................................................................................................................................ 19
6.3.2. Capacity at UAGO to incorporate human rights in decisions and legal drafting ............................... 20
7. Results framework ........................................................................................................................................ 20
8. Risk Management.......................................................................................................................................... 22
9. Indicative budget .......................................................................................................................................... 24
110. Management arrangements .......................................................................................................................... 24
11. Financial Management ................................................................................................................................ 25
12. Monitoring, Reviews and Evaluation ........................................................................................................... 25
Annex I: Overview of results chain .................................................................................................................. 27
Annex II: Terms of Reference for Steering Committees.................................................................................... 28
Annex III: Dialogue Forum on Rule of Law Reform ........................................................................................ 31
21. Introduction
The present Development Engagement Document outlines the objectives, expected outcome
and outputs, implementation strategy and mechanisms as well as planned management ar-
rangements for Denmark’s support to Rule of Law and Human Rights in 2016-2020. The de-
velopment engagement is part of the thematic programme on Peace, Rule of Law and Human
Rights under the Danish Country Programme for Myanmar 2016-2020.
According to Danish procurement regulations, this development engagement will be subject to
an international competitive tender for the implementing partner. The successful implementing
partner will have extensive knowledge and experience on capacity development in human
rights, rule of law and justice sector issues in developing country contexts in general and prefer-
ably hands on experiences from Myanmar.
Parties
The Embassy of Denmark in Myanmar and [name of implementing partner]
Documentation
“The Documentation” refers to the implementing partner’s documentation, including technical
and financial tender proposal.
2. Background
2.1. Human rights in Myanmar
There is broad support for the concept of rule of law1 within Myanmar society and strong pub-
lic demand for rule of law and human rights. Both national actors and international observers
recognize that Myanmar currently lacks a legal and judicial system adhering to fundamental rule
of law principles, capable of delivering justice and contributing to protection of human rights.
There is, however, no broad based and deep rooted consensus on what rule of law entails.
Over the past five years there have been several significant improvements with regard to civil
and political rights in Myanmar. Political prisoners have been released, pre-publication censor-
ship has been lifted and successful parliamentary elections have been held. The military is posi-
tively accepting this transition, but still maintains major constitutionally assigned influence in
both parliament and government. A number of long-standing human rights challenges remain
and new challenges have emerged in recent years and Myanmar continues to maintain a rank in
the bottom of global assessments of adherence to rule of law. Currently, it is ranked 92 out of
102 countries in the World Justice Project Rule of Law Index 2015. Furthermore, Myanmar is
still not party to a number of key human rights conventions including the International Con-
vention on Civil and Political Rights.
The recent Universal Periodic Review of Myanmar in November 2015 made a number of rec-
ommendations of which Myanmar accepted 124, rejected (noted) 69 and postponed 88 rec-
1 This document uses the definition of rule law put forward by the United Nations Secretary-General: “A principle of governance in
which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promul-
gated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It
requires as well measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law,
fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and
procedural and legal transparency.”
3ommendations to a Human Rights Council meeting on 31 March 2016. Among those accepted
are a recommendation to ratify the International Convention on Economic, Social and Cultural
rights (ICESCR) and grant the Myanmar Human Rights Commission, which in its current form
is not independent, autonomy and independence in accordance with the co-called Paris Princi-
ples. Myanmar postponed recommendations to ratify the International Convention on Civil
and Political Rights.
The National League for Democracy (NLD) which won a landslide victory in the November
2015 elections and now leads the new government of Myanmar has made human rights and
rule of law cornerstones of its political platform. State Counsellor, Minister for Foreign Affairs
and Minister of the President’s Office, Daw Aung San Suu Kyi, has personally, including as
former Chairperson of the Committee on Rule of Law and Tranquillity of the parliament’s low-
er house, championed for rule of law in Myanmar. As chairperson of the Committee on Rule of
Law and Tranquillity, she has also been instrumental in the establishment of Rule of Law Cen-
tres, with development partner support, which provides training and raises awareness about
rule of law, legal ethics and local justice issues currently in four cities in Myanmar.
The NLD’s Election Manifesto makes a system of government that will fairly and justly defend
the people a key priority. According to the manifesto, this will include among others the estab-
lishment of a judicial system that is fair and unbiased and supported by the rule of law; the rev-
ocation of legislation that harms the freedom and security that people should have by right;
ensuring that the judiciary can stand independently and on an equal footing with the legislative
and executive branches, free from the influence and control of the executive branch and with
independent authority to oversee and supervise the subordinate courts; open judicial proceed-
ings; independent judicial authority for judges and a presumption of innocence for the accused.
These priorities have also been emphasized by the President and the State Counsellor.
It is expected that the transition will bring about positive changes to the human rights and rule
of law situation in Myanmar, but they will take time and cannot be expected overnight. Imme-
diate positive developments are the release of several hundred political prisoners and the efforts
of parliament to review a large number of repressive laws. The transition will likely bring about
new opportunities for more elaborate development partner engagement on rule of law and hu-
man rights with the government of Myanmar and the judiciary, CSOs, universities and lawyers
than what was foreseeable at the time of formulation of this development engagement, but the
pace of such new opportunities are at this stage unknown. Justice sector reform is a long-term
undertaking and Myanmar is in need of system wide reforms. Reform would need to include, as
also recognised in the NLD Manifesto, a modernization of the body of laws in force, including
eventually the Constitution, a major overhaul of the country’s legal education system and fun-
damental changes relating to the culture, structure and resources of the police, prosecution sys-
tem, judiciary, prison system and other justice sector institutions. The problem of corruption
among justice sector institutions needs to be addressed and the judiciary enabled to assert its
independence from the executive branches of government, the armed forces and private sector
actors.
2.2 The Supreme Court of the Union and the Union Attorney General’s Office
The Supreme Court of the Union of Myanmar and the Union Attorney General’s Office will
play decisive roles in any attempt to implement justice sector reforms as they must themselves
reform and adapt. The Supreme Court of the Union has adopted a Judiciary Strategic Plan
42015-2017, “Advancing Justice Together” which focuses on promoting the rule of law; enhance
reliability and public trust in the judicial system; adjudicate cases fairly and speedily in accord-
ance with the law and upgrade the integrity of the courts. The Union Attorney General’s Office
(UAGO) launched its new “Strategic Plan for 2015-2019, Moving Forward to Rule of Law” in
January 2016. The plan makes the mission of UAGO one of advancing the rule of law; con-
ducting fair trials in criminal and civil cases and being active in justice sector reform based on
goals of protecting the legal rights of individuals; inspiring public trust and confidence in the
justice system and taking an active role in justice sector reform. The strategy emphasizes that
training is a critical issue for its staff, and underscores that university legal education in Myan-
mar needs further improvement, something that the NLD leader has also stressed.
While the plans have many good intentions such as protecting public access to justice, enhanc-
ing judicial independence and accountability and ensuring the integrity of the judiciary, they will
be hard to implement without a major change in their capacity and ability to apply key princi-
ples of rule of law and human rights and as such their preparedness to be able to play positive
roles in the changes that can be expected when the new government takes office.
Support to the justice “sector” and the promotion of human rights has over the past few years
seen increasing support by a number of international actors. Key actors working with Myan-
mar’s formal justice sector institutions include JICA, UNDP and USAID in a wider number of
areas, including strategic planning, pilots on court development, commercial/investment law
etc. None of these actors have, however, been focusing exclusively on human rights. They have
been assisting in the development of the Supreme Court of the Union and UAGO strategic
plans and they support various training activities and exchanges of experiences. As a core fun-
der of UNDP’s country programme 2014-2017, Denmark is already a partner to many of these
efforts. Some key international NGOs are also providing support in the field of rule of law,
including to the Supreme Court of the Union and UAGO. They include the International De-
velopment Law Organization, IDLO, the International Commission of Jurists, ICJ, and the
Raoul Wallenberg Institute of Human Rights and Humanitarian Law. Denmark has supported
the work of the International Commission of Jurists with the Supreme Court of the Union and
UAGO. There are also several international actors assisting in the drafting of new legislation.
2.3 Legal education and research
Legal studies have traditionally had low status and the quality of the legal education has been
poor and marked by understaffed law departments, low capacity among law professors, an out-
dated curriculum and an absence of modern teaching methodologies and reasonably equipped
libraries. Legal education is conducted through rote learning of legal facts and definitions with
little legal analysis or practice as part of the courses. Law departments are typically run by a few
professors, including the head professor responsible for all administration, and several lecturers
and tutors. Members of faculty appear eager to improve the level of legal education, but are
currently burdened with a heavy teaching load and few resources. Compounding the problem is
the fact that English continues to be used as the language of legal education, with the exception
of a few newly introduced law courses, despite the low levels of English proficiency of the ma-
jority of professors, lecturers and students and the fact that law is practiced exclusively in My-
anmar with all legal proceedings conducted in Myanmar.
Since the mid-1970s the most common method of obtaining a law degree has been through
distance-learning education programmes. Legal studies steadily declined after the then govern-
5ment closed the University of Yangon for several years, including most of the 1990s, to prevent
student activists from assembling, which included the country’s premier law school. In general,
the exposure of university teachers and students to international human rights law has been
minimal or non-existent. Generally, the legal education system has failed to prepare students
for a life as practitioners and has given them little exposure to the legal challenges facing disad-
vantaged segments of the population. The research capabilities of professors and lecturers are
similarly limited as are their exposure to international research methodologies.
While the law faculties at Yangon and Mandalay universities have extensive international coop-
eration and support, law faculties at other universities receive little attention, including Dagon
and East Yangon universities which both offer law programs at LLB and LLM level. Both have
expressed their keen interested in collaborating with the Embassy of Denmark on human rights
education.
2.4 Lawyers and CSOs
A serious justice sector reform in Myanmar will require, among other things, initiatives to
strengthen people’s access to justice, enhance the capacity of private sector lawyers, and revamp
the system under which the legal profession is regulated. Myanmar has no officially regulated or
government supported legal aid system, apart from legal representation being given to defend-
ants facing the death penalty. Currently, legal aid is mainly provided by internationally support-
ed NGOs and by private law firms and lawyers working on a pro-bono basis. Myanmar lawyers
have had no capacity to use strategic litigation as a means of safeguarding human rights and
promoting a legal and judicial reform agenda. Lawyers have also long been barred from organ-
ising themselves in an independent bar association which can promote the profession, its integ-
rity and interests. However, this recently changed with the launch of the Independent Lawyers’
Association of Myanmar, ILAM, on 19 January 2016 with the participation of the NLD chair-
person. The establishment of ILAM is still in its early stages and the association has yet to de-
velop and establish codes of conduct and procedures to transform itself into an independent
bar association which can uphold the legal profession, its integrity, ethics and norms.
Broader demand side initiatives involving civil society organizations with well-developed advo-
cacy skills and broad representation among the population are essential if justice sector reform
initiatives are to be successfully geared towards addressing the needs of the general population
and more marginalized communities. The opportunities for CSOs to contribute to law and pol-
icy making have increased significantly in recent years, but their capacity to do so is limited and
needs to be effectively enhanced. While there is a concentration of strong and well-established
CSOs working on human rights and rule of law issues in the Yangon region, CSOs based out-
side of Yangon generally have much more limited capacity and access to outside support.
2.5 Justification
If lawyers are to be able to effectively contribute to protection of human rights and a justice
system grounded in the principles of rule of law, the legal education as well as the ability and
capacity of lawyers to use the legal system to advance human rights must be enhanced, a func-
tioning legal aid system must be put in place and a national self-governing body, like the new
independent bar association, with the role of promoting and regulating the profession must be
effectively implemented.
6If civil society actors are to have capacity to promote and protect human rights and increase
pressure for justice sector reforms, they need training and guidance from experienced human
rights workers on human rights related monitoring, documentation and national and interna-
tional advocacy. If the demand side initiatives of lawyers, human rights defenders and other
civil society actors should yield intended results, the capacity of state institutions to engage with
issues of human rights and reforms must be developed. Two institutions that in this regard will
be essential are the Supreme Court of the Union and UAGO. They need, however, staff, judges
and legislative drafters with excellent knowledge of human rights standards.
Unless the general absence of well-educated jurists is addressed, most efforts aimed at tackling
existing justice system deficiencies will be hampered. A legal education system capable of
providing students with the knowledge and skills needed to contribute to a society grounded in
the principles of human rights and rule of law requires, among other things, that professors and
lecturers at law faculties have skills and research capacity in international human rights, rule of
law and mainstreaming of human rights in the legal education, as well as in more modern teach-
ing methodologies than at present. Teachers need to have first-hand experience of legal and
human rights research and both teachers and students need to have access to human rights lit-
erature and databases, including in their own language. Closer cooperation between law schools
and legal practitioners and the establishment of university managed legal aid clinics through
which law students can apply knowledge learned and provide disadvantaged individuals and
groups with legal advice will contribute to enhancing the professional capacity of law graduates
in practicing law and at protecting and promoting human rights.
In the absence of a national justice sector reform plan to which development partners can align
and in the current transition context the most meaningful approach for supporting the promo-
tion of rule of law and human rights in Myanmar is one that (i) aims at contributing to change
in institutions and stakeholders of strategic importance by promoting increased application of
and respect for human rights standards and the rule of law; (ii) works with a cross section of
important rights holders and duty bearers to build capacity and promote a comprehensive jus-
tice sector reform debate in order to contributing meaningfully to the implementation of a
broader reform agenda; and (iii) complements what other development partners are focusing
on, not least by a strong focus on human rights.
This development engagement’s approach will therefore be to contribute to building up the
capacity, which is currently missing among these key duty bearers and rights holders - the Of-
fice of the Union Supreme Court, the Union Attorney General’s Office (UAGO), law depart-
ments, lawyers’ and CSO networks – to apply and advance rule of law and human rights. It is
designed to address these interlinked needs for core capacities to apply and advance interna-
tional human rights among rights holders and duty bearers and foster links and synergies be-
tween activities. This will also promote a stronger platform for an evidence based justice sector
reform discourse which today is missing and which is key to success of any future justice sector
reform. The development engagement will remain responsive to the plans of the new govern-
ment for reforms in the justice sector.
2.6 Lessons learned
A lesson learned from initiatives aimed at strengthening legal and judicial system in other coun-
tries is that there is no automatic link between legal and judicial reform programmes and in-
creased respect for, and fulfilment of, human rights. Efforts to strengthen state justice institu-
7tions may instead be used to enhance oppression, strengthen those in power, and undermine
empowerment of people living in poverty. In order to ensure that support does not increase the
justice system’s potential to supress rights and dissent it is essential that any donor support to
the sector has a very specific reform and human rights focus. It is also essential that any sup-
port provided and the contexts in which activities are implemented are regularly and critically
assessed.
Another lesson learned, including from legal and judicial reform programmes around the world,
is that comprehensive justice sector reform not only requires broad based support to the prin-
ciple of rule of law, but also to the direction and course of the actual reform agenda. While
there have been some studies carried out on the functioning of the Myanmar justice system,
there is generally little data available upon which to develop a reform strategy and little in-
formed discussion on the content and sequencing of such a strategy. There is an immediate
need for systematic data collection and action research which can provide a better understand-
ing of how the justice system is currently functioning and how identified bottle necks and other
weaknesses can be addressed. It is also key that there is a functioning platform where research
findings, experiences and opinions of relevance from a legal and judicial reform perspective can
be shared and discussed in a way that feeds into the process of designing reform plans and ac-
tivities.
3. Development Engagement Objective
This engagement is part of the thematic programme on Peace, Rule of Law and Human Rights
under the Denmark-Myanmar Country Programme 2016-2020 which has as its overall aim to
promote peace, rule of law and human rights. The objective of Denmark’s support to rule of
law and human rights through this development engagement is to contribute to increased ap-
plication of and respect for international human rights standards and rule of law in My-
anmar’s justice system, which will ultimately be measured by international indices on adher-
ence to rule of law.
The objective will be promoted by addressing the key justice sector actors outlined in section 2
above with a focus on human rights education and research at universities, stronger lawyer and
CSO networks to advance human rights through litigation and advocacy, and enhanced capaci-
ty of formal justice sector actors to apply human rights law and judicial and procedural ethics in
its decisions and functions. The Embassy of Denmark in Myanmar will base the actual support
on progress attained in the implementation of the engagement as described in this document
and in the Country Programme Document. Progress will be measured through the implement-
ing partner’s monitoring framework.
4. Expected outcome
The overall objective will be promoted through the following outcome:
Two universities, CSO and Lawyer networks, the Judiciary and the Union Attorney
General’s Office apply and advance international human rights standards and rule of
law.
8The outcome aims to be reached thorough the collaborative efforts of the implementing part-
ner and the beneficiary stakeholders who have all committed to cooperating with the Embassy
of Denmark towards this end.
5. Theory of change and support strategy
5.1. Theory of change
If the Myanmar justice system is to be able to uphold the rule of law and safeguard human
rights, significant reforms are needed, problems of corruption and undue interference have to
be tackled and the capacity of those who work within and in relation to justice system institu-
tions has to be enhanced. While the challenges are many and the problems deep-rooted, the
existing commitment to rule of law and human rights of the new government as well as the
demand for justice among civil society actors and the general public creates an environment in
which the process of promoting the long term goal of a reformed justice sector can be moved
forward.
The theory of change which underpins this engagement is focused on how Denmark based on
its core priority of supporting democracy and human rights in partner countries can best sup-
port an increased application of and respect for international human rights standards and rule
of law in Myanmar’s justice system. In the current context of - positive – transition any pro-
gress in justice sector reform can only be gradual and the needed major legislative changes to
the key challenges facing the Myanmar justice sector is yet to be addressed. Such reform and
reform plans require time to mature and it requires capacities among both duty bearers and
rights holders on rule of law and human rights. As such, rule of law reform in Myanmar is in its
infancy and the legal education system and profession as well as formal justice sector actors
have yet to gain the capacity needed to function in the reformed justice system that is the vision
of the new government. Denmark’s support to rule of law and human rights will therefore fo-
cus on building up the capacity among key duty bearers and rights holders to apply and advance
rule of law and international human rights standards which is needed for these stakeholders to
play their part in any justice sector reform efforts.
Any meaningful reforms require that Myanmar develops a cadre of well-educated lawyers with
knowledge and skills relevant for practical application. By supporting the law departments at
Dagon and East Yangon universities in providing high quality academic human rights educa-
tion, Denmark will contribute to establish a growing pool of law graduates that have under-
standing and knowledge about rule of law and human rights and are able to promote human
rights and rule of law and apply human rights in their work, including in litigation. Additionally,
the fact that the majority of law academics and students are women also indicates the potential
for strengthening women’s roles and participation in an emerging national human rights system
in the country. By assisting law students to apply their knowledge in practice through legal aid
clinics which assists disadvantaged groups, they will be sensitised to the needs and challenges of
the poor and the effect that rule of law will have on their ability to claim their rights. The ideas,
knowledge and experiences generated in establishing the human rights education courses, in-
cluding the teaching methodologies, may also serve as an inspiration for reforming legal educa-
tion practices more generally at the targeted universities and beyond.
9By building the capacity of networks of civil society organizations to monitor, document and
advocate for human rights and remedies to violations, not least in regard to land issues in geo-
graphical areas currently underserved, the development engagement will contribute to giving
voice to the grievances of ordinary people and their demand for remedy.
Practicing lawyers in Myanmar have had limited capacity in and opportunities for using litiga-
tion as a way of promoting social change and advancement of human rights. While it will take
time to develop their capacity to effectively use such as strategy, the development engagement
will through support to the development of capacity of lawyers to use international law and
standards and emerging national laws to advance human rights in Myanmar through strategic
litigation contribute to building up a network of professional lawyers who can be among the
first professional champions to demand human rights and justice in the court systems while
also engaging in a future multi-stakeholder discourse on justice sector reform. In light of the
recent establishment of the Independent Lawyers’ Association of Myanmar, Denmark will sup-
port efforts to establish a more sustainable platform for the professional training of and sup-
port to lawyers on human rights issues within the framework of this association.
Considering the central position the UAGO has in the law making process, it can be an essen-
tial actor in promoting and realizing an effective and regular consultative law making process.
By supporting UAGO to enhance its capacity to apply and advance human rights standards, the
development engagement will contribute to enabling the institution to incorporate human
rights in its legislative work and decisions and eventually contribute to safeguarding such rights.
The Supreme Court of the Union’s legislative mandate is directly linked to the functioning of
the judiciary. While there is a general need to put in place a framework that promotes judicial
independence, an instrument expected to be of particular importance is the code of judicial
ethics. Through support to building up capacity in judges and judicial officers on human rights
and supporting the effective implementation of a judicial code of ethics, the engagement will
contribute to enabling the institution to exert its independence and promote in it a growing
understanding of judicial ethics, rule of law and human rights.
Denmark’s support will target a selected number of reform and human rights related initiatives
relating to State institutions and will, in combination with support provided by other key De-
velopment Partners, aim to serve as a catalyst for change and capacity development more wide-
ly within these institutions. A broad and evidence-based discourse on the functioning of the
justice system will be supported as such a discourse is essential for the development of a much
needed comprehensive justice sector reform agenda guided by the principles of human rights
and the rule of law. Through its human rights focused support to the range of key justice sector
actors, the Danish engagement, will place its partners in a position to effectively contribute to a
justice sector reform agenda.
The major contribution pathways of the development engagement are illustrated in the figure in
annex I.
5.2 Assumptions
The main assumptions behind the above theory of change are:
The on-going process of political and economic transformation and reform continues
under the new government.
10The new government cooperates with international development partners on support to
its justice sector reform plans.
Universities are ensured the professional space and capacity to collaborate on human
rights education and legal aid.
The Office of the Union Supreme Court and UAGO maintain their commitment to col-
laborate in the areas identified and accepts the implementing partner tendered for.
The Government and development partners continue to apply the principles of the Nay
Pyi Taw Accord for effective development cooperation by ensuring coordination and
harmonization of support to rule of law and human rights initiatives, not least in regard
to collaboration with the Supreme Court and UAGO.
Those trained actively use and apply new knowledge.
The implementing partner will have proven experience in working on rule of law and
human rights and in partnership with supply and demand side actors on human rights,
preferably in Myanmar.
The implementing partner is able to recruit Myanmar legal experts or legal experts with
proficiency in Myanmar to help advance the engagement’s approach to capacity building
5.3 Approach to capacity development
Generally, Denmark’s engagement will be grounded in an understanding of the long term na-
ture of any fundamental justice sector reforms. It will also be characterized by a commitment to
support, in line with a human rights based approach to development, capacity strengthening of
both rights holders and duty bearers, as well as by the intention of promoting the development
of a reform agenda with a strong human rights focus. Denmark will ensure alignment with the
priorities of the new government and other national partners and for harmonization and close
coordination with initiatives supported by other development partners.
A primary element of the development engagement is capacity development of supply and de-
mand side justice sector actors. While different support will be applied for the different institu-
tions and other stakeholders benefitting from the development engagement, a sustained capaci-
ty development approach that relies largely on mentoring, training of trainers and institutionali-
zation of training capacity will as far as possible be applied. Many capacity building initiatives
which have been undertaken with formal justice sector actors in Myanmar has so far relied on
one-off workshops with foreign experts and study trips with no evidence of any tangible im-
provements in the delivery of justice. While international expertise may be valuable for high
level discussions with senior government and justice sector officials, domestic trainers who
speak Myanmar and understand the context will be more appropriate trainers for low and mid-
dle ranking staff, law students etc. Therefore rather than relying primarily on international ex-
perts only, support will focus on building the capacity of trainers in e.g. the UAGO and the
Office of the Union Supreme Court and among CSOs and lawyers. This entails that the imple-
menting partner will need at least a semi-presence in Nay Pyi Taw and ability to provide ongo-
ing, even daily, support to Dagon and East Yangon universities.
International and national legal and human rights specialists – including lawyers, prosecutors,
judges, academics and human rights workers – will provide on the job training and advice for
key actors in targeted institutions and for other stakeholders. They will also, when appropriate,
provide lectures and organize seminars and workshops. Although the vast majority of all capac-
ity building activities will be carried out in Myanmar, it will still be important to expose benefi-
11ciaries to international experiences and practices, including through external expertise brought
in, scholarships and joint research initiatives with non-Myanmar scholars.
Well recognized core principles for effective institutional capacity development will be consist-
ently applied and issues such as local ownership, building on existing capacity and adapting the
support to local conditions will be integral elements. A participatory approach will be applied
which involves targeted institutions and individual beneficiaries in all aspects of capacity build-
ing, from identification of prioritized interventions to development of teaching methodologies
and follow up. At the same time the development engagement will promote the introduction of
capacity building initiatives and approaches that are new or not well developed in the Myanmar
context, but that that have been successfully applied in other parts of the world.
Support will be provided to the development of appropriate institutional arrangements for con-
tinued capacity building in order to ensure sustainability. Assistance will also be given to the
development of training plans and materials, and to purchases of books and others resources
required for effective capacity building of key actors and for ensuring that these actors in turn
have the resources required for enhancing the capacity of others.
5.4 Synergies
There are a number of intended and potential linkages and synergies between the development
engagement’s outputs, which jointly contribute to achieving the outcome. While it may take
time before strong links of cooperation are developed, some interactions already exist between
key actors with whom the development engagement is concerned. The engagement will build
on these. Practicing lawyers will be encouraged to enhance their cooperation with the universi-
ties, help introduce practical elements in the legal education and offer internship opportunities
for students. Together with paralegal organizations and other civil society groups they will help
expose law students to the legal and practical realities of disadvantaged and marginalized groups
and provide members of these groups improved access to justice through university legal aid
clinics.
The joint research initiatives, as well as the efforts to promote a broad evidence-based reform
discourse, including analysis and action research are also expected to contribute to increased
interaction between different justice sector actors. Furthermore, international resource persons
brought in to assist with one aspect of the engagement, e.g. supporting formal justice sector
actions, are expected to be able to also contribute to others, e.g. support to human rights edu-
cation at universities.
5.5 Implementation approach
Day to day responsibility for management and implementation of the development engagement
will rest with an Implementing Partner, who will be contracted through an open competitive
tender process, in line with Danish tender regulations, for the duration of the engagement. The
Office of the Union Supreme Court and the Union Attorney General’s Office will be invited to
sit on the tender committee selecting the successful implementing partner institution.
The implementing partner will be the direct partner to this development engagement and to the
Embassy of Denmark. Recruitment will be done in line with the rules and regulations of the
Danish Public Procurement Law which entered into force on 1 January 2016 and sets out the
12procedures for the award of public works contracts, public supply contracts and public service
contracts.
The Implementing Partner will be responsible for the direct support to the different stakehold-
ers as well as be entirely responsible for financial management. All inputs in the form of train-
ing, capacity building, technical advice, capital investments etc. will be delivered directly by the
implementing partner. The Implementing Partner should have:
Extensive knowledge and experience of human rights and justice sector issues in devel-
oping country contexts in general and preferably in Myanmar;
Experience from working with key justice sector stakeholders;
Strong experience in managing international development cooperation pro-
grammes/projects;
Access to an extensive pool of international and national human rights and justice sector
specialists with training and mentoring experience and expertise on issues of academic
education in the field of human rights, management of human rights libraries, strategic
human rights litigation, legislative drafting, judicial ethics and human rights monitoring,
documentation and advocacy.
The Implementing Partner should be able to identify and engage staff with development and
subject matter expertise to act as advisors to the Myanmar stakeholders. At universities, the
general English proficiency among professors, lecturers and students are generally low even if
English formally is the language of the legal education. The implementing partner will need to
have access to or ability to recruit Myanmar speaking legal experts as well as skilled legal inter-
preters. In addition, staff members need to have solid experience of international development
cooperation, capacity strengthening, institutional development and the practical and theoretical
aspects of human rights. The implementing partner may be one institution or represent a con-
sortium of more than one institution or organisation which can offer the required capacities
and expertise to successfully implement the development engagement.
It is expected that the first six months of implementation will focus on establishing the required
procedures and systems for implementation. During the first 6 months of the start-up period
the implementing partner will be expected to develop working procedures and plans with the
identified national stakeholders, based as far as possible on their own plans, which should in-
clude a framework for planning and monitoring.
During the initial start-up period, planned activities to be carried under the different outputs
should be established in an annual work plan. Such plans are subject to approval by the relevant
Steering Committee.
Formal review meetings with each partner(s) should be carried out every six months in order to
compare progress in relation to plan. Minutes from these meetings should be recorded by the
Implementing Partner.
The Implementing Partner will be expected to establish at least a semi-permanent presence in
Nay Pyi Taw in order to be able to provide the needed support and ongoing dialogue with
counterparts in the capital. It will also be expected to have ability to provide uninterrupted sup-
port to the two universities in the Yangon area through a team of dedicated full time interna-
tional and national legal advisors with strong academic and research backgrounds.
13While the Implementing Partner has final responsibility for all financial and narrative reporting
to the Embassy of Denmark, an annual progress report should for each output as far as possi-
ble be prepared jointly by the Implementing Partner and the concerned national counterpart.
Considering the absence of a comprehensive and broadly supported legal and judicial reform
agenda, as well as the uncertain socio-political environment in which the engagement will be
implemented, it will be necessary to ensure that the engagement is characterized by a reasonable
level of flexibility and that financial, activity, output and results framework adjustments are al-
lowed for when necessary to meet challenges and take advantage of opportunities that may like-
ly emerge during the duration of the engagement, not least the new government’s plans in the
area.
Throughout implementation the Implementing Partner will base its planning and dialogue with
national stakeholders on a human rights based approach to development which implies that the
following four principles shall be applied in all phases of the engagement: non-discrimination,
participation and inclusion, transparency and accountability.
Inputs of partners to the engagement will be the time of staff to collaborate and take part in
capacity building initiatives and plan and carry out initiatives with support from the Implement-
ing Partner. For the two universities another input will be allocated space in the university cen-
tral libraries for to host the human rights resources centers.
6. Outputs and key areas of activity
In order to fulfil the engagement outcome, the below mentioned outputs which contribute to
achieving the identified outcome have been defined.
6.1 Human rights education
6.1.1 Human rights education established at two universities
Apart from Yangon and Mandalay universities, no other law schools in Myanmar have benefit-
ted from systematic international support to raise capacity in human rights. The law depart-
ments at Dagon and East Yangon universities are keenly interested in advancing their capacity
in rule of law and human rights and have confirmed their commitment to launch human rights
education with Danish support. Both are committed to giving human rights courses, either as
optional or compulsory courses (at LLB and LLM level) depending on the future requirements
of the nationally established curriculum. However, they lack capacity in teaching the subject and
have no lecturers with a research background in international human rights law.
The development engagement will address these shortcomings by contributing to ensuring that
the universities have the capacity to teach human rights law using modern teaching methodolo-
gies and by ensuring that they have the capacity to consider and incorporate relevant human
rights aspects in all parts of the legal education at LLB and LLM level. Assistance will primarily
be provided through a mentoring approach, in which experienced international and local aca-
demics assist and work in close cooperation with faculty at the two law departments.
The following activities are foreseen at Dagon and East Yangon universities:
Training of and ongoing advice to the law departments at Dagon and East Yangon Uni-
versities on mainstreaming of human rights and on international human rights law.
14Introduction of new teaching methodologies focusing on case studies, analysis, and crit-
ical thinking
Joint research initiatives – involving Myanmar and foreign academics – that can contrib-
ute to generating new evidence on rule of law and human rights in the Myanmar con-
text, an increased understanding of the current functioning of the justice system and to
an informed discourse necessary for the development of a sound legal and judicial re-
form strategy.
A limited number of scholarships to faculty members for studying human rights at uni-
versities abroad, preferably in the region or in Denmark.
The systematic introduction of human rights courses at LLB and LLM level
Guest lectures by Danish, international and regional researchers
6.1.2 Access to human rights knowledge through human rights resource centers
Access to human rights resources in the form of literature and articles is essential for a high
quality human rights education for students. Both Dagon and Yangon have central university
libraries that are reasonably well-staffed and located in appropriate buildings with considerable
vacant space. However, they have a limited number of legal text books, which are often photo-
copied by students. There are few human rights resources and internet access is a general chal-
lenge.
While the Dagon university library has access to electronic libraries and databases, East Yangon
University has no such electronic resources. Rather than supporting the establishment of hu-
man rights resource centers in the two law departments, the engagement will aim to support the
establishment of human rights resources centers at the central libraries of the two universities,
which will ensure that more students have easy access to literature and documentation provid-
ed. It will also promote the inclusion of human rights education by other departments than the
law department, such as e.g. the political science department.
The centers would have human rights literature and legal resources as well as a number of
computer stations with internet access. It would be overseen by a university librarian trained to
service the human rights resource centers. The development of such centers would support the
initiatives to raise the level of education particularly at the LLM level. Unlike the current situa-
tion where students are only tested on the contents of their text books, incorporating new
methodologies would require that they use additional academic sources, as well as the internet.
This in turn would promote the use of such a center which would be a new concept to the legal
education in Myanmar.
Activities will be carried out in close coordination with other development partners supporting
human rights education at other universities and activities will include:
Training of librarians at Dagon and East Yangon universities
Support in the establishment, including with literature, IT and inventory, as well as the
management and use of a human rights library
Translation of key literature on human rights law to Myanmar
Extra-curricular guest lectures and other events at the human rights resource centers
targeting all university students
156.1.3 Enhanced access to justice through university legal aid clinics
Legal education in Myanmar has traditionally failed to provide law students with practical expe-
riences and to expose them to the legal challenges of the poor. Legal theory is the primary fo-
cus of university legal education and there is little in the current law curriculum and teaching
methodologies that prepare law students for the real-life practice of law. It is only upon gradua-
tion from an LLM degree that law students are exposed to law practice through one mandatory
year of Chambers. Qualifications for lawyers to practice and oversight systems were suspended
many years ago, including a bar exam for lawyers.
The introduction of legal aid clinics within the universities and various community outreach
would bridge the gap between theory and practice that would both serve the surrounding
community, as well as teach students hands-on skills relating to real life cases and an under-
standing of the justice needs post-graduation. Through the legal aid clinics, law students will on
an on-going basis and under supervision or assistance of teaching staff, practicing lawyers and
paralegals offer legal information and guidance to members of the surrounding disadvantaged
communities. This would also complement the introduction of new teaching methodologies
through human rights mainstreaming, allowing students to be exposed to new approaches to
learning.
The legal aid clinics would be set up on university campuses, with designated clinic hours and a
room to receive clients assuring privacy and confidentiality. Students would meet with clients,
conduct case preparatory work and support the work of pro bono lawyers who would directly
handle cases. As students gain more legal knowledge, confidence and practical experience, they
themselves could provide legal advice for clients under the supervision of professors. This
could form part of a credited course subject for the student with tutorial classes based on the
cases received. Over time, it could be considered to have the clinics located directly in the local
community rather than the universities to be in closer proximity to users. The clinics will sensi-
tize the law students and help foster a professional understanding of the situation and legal and
human rights challenges for disadvantaged communities. In order to effectively contribute to
bridge the gap between theory and practice the support will also link lawyers and paralegals to
the law school clinics and the legal education.
Ongoing advice will be given to faculty and students at Dagon and East Yangon universities on
the establishment and operations of the clinics. Activities will include:
Incorporation of practice elements into all law courses using existing curriculum
Training of faculty and students at Dagon and East Yangon university law departments
on the role and management of legal aid clinics.
Establishment of university legal aid clinics with designated hours of operation
Guest lectures by national legal practitioners
6.1.4 Evidence-based policy discourse on human rights, rule of law and justice sector
reform
Even though there is commitment to reform of the legal and judicial system, a broad evidence
based discourse on the functioning of the justice system and on reform strategies and priorities
generally is missing. A major reason for this is a relative absence of reliable information about
the actual functioning of the system and about its deficiencies and its bottle necks. The devel-
opment engagement will therefore also support lawyers, CSOs, academics and justice officials
16in generating data and information about the system. A broad evidence-based discourse on jus-
tice sector reform priorities and strategies will be facilitated through support for action re-
search, dissemination of research findings and the establishment of platforms for exchange of
ideas.
The aim is to support the emergence of a broad evidence-based discourse on human rights and
rule of law issues that can feed into the legal and judicial reform process. In collaboration with
other actors, assistance and advice may also be provided in the development of a reform agen-
da through a consultative and participatory process involving broad segments of society. This
output will draw on and be closely linked to the joint research initiatives planned under above
and may include analysis of existing and draft legislation. Activities will include:
Support to lawyers, CSOs, human rights groups, law schools and justice sector institu-
tions to carry out action research and legal framework analysis of relevance for justice
sector reform, e.g. in the form of small research grants, technical support etc.
The establishment of a web platform with a relevant domestic organization to share
views, experiences, reports and research findings etc.
Conferences/seminars/debates on aspects of justice sector reform.
6.2 CSO and lawyer capacity to advance and apply human rights
6.2.1 Capacity of CSOs to monitor and document human rights violations and advocate
for effective responses
The development engagement will support the development of capacity of CSO networks
which work on human rights related issues to monitor and document human rights violations
and advocate for effective responses to these violations. The engagement will build capacity of
CSOs in areas where such support is limited and, building on previous Danish support, pri-
marily focus on enhancing the capacity of CSOs concerned with land-related human rights is-
sues in communities surrounding the so-called Special Economic Zones.
Capacity building will be offered through workshops and training sessions and experienced in-
ternational specialists may in selected cases also provide case specific advice and assistance. Fo-
cus will be on building capacity among CSOs, including in training others, in human rights re-
lated monitoring, documentation and advocacy. Support will be provided to advocacy efforts at
the national level and efforts aiming at developing one or several CSO networks that can serve
as permanent platforms for trainings, exchanges of experiences and joint advocacy will also be
supported.
The support will increase capacity of CSOs to identify the needs of their communities, especial-
ly those communities located in remote, at-risk areas, and to assist their communities in de-
manding enforcement of these rights at the local and national levels. This will also provide the
CSOs with greater ability to assess government laws and policies with regard to their impact on
local communities and their rights which will in turn encourage public participation of CSOs
and their empowerment to demand access to justice. The CSO will be offered support, training
and advice by experienced national and international experts on human rights issues of particu-
lar concern to them and on the development and implementation of strategies to affect change.
Activities will include:
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