Myanmar is one of the most recent countries in the world to have established a Constitutional Tribunal. Yet the operation of the Tribunal flies in the face of assumptions common to global constitutionalism. At present, external factors such as globalised judicial networks or comparative concepts of rights-based review have had little influence in Myanmar. Instead, the operation of the Tribunal can be explained by two main internal factors and the actions, or inaction, of elite political actors. I demonstrate this by analysing the Constitutional Tribunal under President Thein Sein (2011-2012; 2013-2016) and then the National League for Democracy government (2016-). In this talk I focus on the issue of the right to vote and citizenship to illustrate when and why elites (both democrats and dictators) use the Tribunal. Although the global community largely perceived the 2015 elections to be free and fair, in fact the decision of the Tribunal combined with the actions of Parliament contributed to the mass disenfranchisement of over one million people (many of whom are Rohingya). In this respect, the Tribunal has reinforced a limited nationalist understanding of the 2008 Constitution. As a monumental shift has taken place from direct military rule to military-led constitutionalism in Myanmar, I offer an important and timely reflection on the implications of the role of the Tribunal as a forum for constitutional dialogue between military dictators and democratically elected representatives. This talk is based on a forthcoming article in the International Journal of Constitutional Law (2018).
Date: 18 April 2018
Location: Melbourne Law School
Hosted by the Asian Law Centre and the Centre for Statelessness, University of Melbourne