Constitutional Change in Myanmar: The Role of Courts in Authoritarian Regimes
Seminar date: Tuesday 6 October 2015
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Seminar abstract: National elections are due to be held in Myanmar in November 2015. This follows in the wake of several years of significant political reforms. The transition since 2011 from complete military rule to a quasi-civilian government has taken place within the framework of the Constitution of 2008. Yet this intensive period of legal reform has not seen major changes to the role and structure of the judiciary. This raises the issue of the future role of the courts in contributing to constitutional and democratic change in Myanmar
One shift that has taken place is the reintroduction of the Supreme Court’s jurisdiction to hear cases from citizens to challenge administrative decisions. In this seminar, I focus on the constitutional writs, as set out in the Constitution of 2008, and its potential as an avenue for citizens to bring cases against government officials to the courts. I question whether the Constitution, as a document drafted over a period of 20 years in a process controlled and directed by the military regime, can take on new meanings and significance for its citizens. To address this, I examine the development and foundation of constitutional writs in Myanmar during the period of parliamentary democracy (1948-1962), identify its common law foundations and the emphasis on the protection of individual rights. I then turn to the implications of the reintroduction in 2011 of the constitutional writs, after decades of socialist and then military rule. Several hundred writ applications have been lodged with the Supreme Court in the past five years, yet few cases have actually been decided on issues of rights protected in the Constitution. Through this presentation, I demonstrate that administrative law is one test of the progress, nature and shape of constitutionalism in authoritarian regimes. The Supreme Court primarily acts to keep the lower courts, rather than the executive, in line; yet there remains potential for the Court to build constitutionalism through writs applications in the future.