Seminar on Law in a Changing Myanmar

The UNSW Network for Interdisciplinary Studies of Law invites you to attend an evening seminar on ‘ Law in a Changing Myanmar”


The guest speakers are Professor Nu Nu Yi and Professor Tin Htay Ei, who are visiting UNSW from 2-5 March 2015.


Professor Nu Nu Yi is Pro-Rector and former Head of Department of Law, University of Mandalay. Her expertise lies in intellectual property, business law and customary law. 


Professor Tin Htay Ei was until 2014 Head of Department of Law, University of Mandalay, and is currently Professor in the Department of Law at the Yangon University of Distance Education. Her primary areas of expertise are international environmental law and customary law. 


Event date: Tuesday, 3 March 2015
Location: Dean’s Board Room, 2nd Floor
UNSW LAW SCHOOL, Kensington, Sydney
Time: 5.30 – 8pmPlease rsvp to Martin Krygier (m.krygier@unsw.edu.au) know ahead of time.

UNSW Engagement in Myanmar/Burma

Since moving to UNSW, I have been interested to learn more about the various initiatives related to Myanmar that the Law Faculty has ongoing. There are three main areas: the Australia-Myanmar Constitutional Democracy Project; legal education; and the Diplomacy Training Program.

Australia Myanmar Constitutional Democracy ProjectIn 2013, the Australia-Myanmar Constitutional Democracy Workshop was established and originally directed by Professor Wojciech Sadurski of the University of Sydney, in cooperation with a network of scholars from UNSW, ANU and NUS. Professor Martin Kruyger and Professor Adam Czarnota of UNSW participated with other academics in a workshop held in Yangon in May 2013. The workshop was sponsored by the Australian embassy, Rotary International, Konrad Adenauer Foundation and the respective universities. The workshop was attended by a wide range of civil society organisations, lawyers, judges, and politicians. See report on proceedings here, and media release here and here.
InFebruary 2014, Martin Krygier and Theunis Roux organised a forum on constitutional reform in Myanmar ‘Stumbling Towards Democracy?’ at UNSW Law school. Guest speakers included U Htay Oo, National League for Democracy (NLD); U Thein Than Oo, Myanmar Lawyers Network; and Janelle Saffin, lawyer and former federal MP. See here.
In 2014, Martin Krygier and Theunis Roux took over as facilitators of the Australia Myanmar Constitutional Democracy Project, in collaboration with the networks of academics from Sydney, ANU and NUS centrally involved. In November 2014, workshops were held in Yangon and Naypyidaw. It was sponsored by Australian embassy, Rotary International, Konrad Adenauer Foundation. See report on proceedings here, and here. There are plans for this project to continue and the project (thanks to the hard work of Catherine Renshaw, Martin Krygier and Theunis Roux) has received a grant that will support the Australian-Myanmar Constitutional Democracy Project in 2015-2016.

Legal EducationIn 2014, UNSW Law School signed an MOU with Mandalay Law Department. This was the initiative of Professor Carolyn Penfold and Professor Brendon Edgeworth, who visited the Law Department at Mandalay University last year.
In late February 2015, several law professors from the Law Department at Mandalay University will visit the UNSW Law School.

Diplomacy Training Program (DTP)The Diplomacy Training Program is a unique initiative that is affiliated with the UNSW Law School and has a strong history of capacity building in the region. In May 2014, the Diplomacy Training Program (DTP), led by Patrick Earle,  held its first human rights training program in Yangon, Myanmar. Australia’s Ambassador to Myanmar, Bronte Moules, hosted a reception for the participants and for DTP’s alumni. U Win Mra, the chairperson of the Myanmar Human Rights Commission participated in the closing ceremony and the awarding of UNSW certificates. See here for more information.
In November 2014,the 24th Annual Regional Human Rights and Peoples’ Diplomacy TrainingProgram was held in Kathmandu, Nepal in partnership with INSEC, and some participants from Myanmar attended the program.

Further collaboration with partners from Myanmar is anticipated for 2015.

University of Mandalay, 2013

Campaigns for Constitutional Reform in Myanmar

Sometimes its useful to look back in order to move forward. Last year while on field research I observed some of the rallies for constitutional amendment in Myanmar. This is my reflection on one of them.


The morning was humid, the traffic crowded, crawling by. I arrived in a beat-up taxi at Bo Sein Hman sports ground in Tamwe Township, Yangon. The rally was due to start at 8:30am, and the sports ground was already crammed full of people when I arrived. They must have arrived very early, as people were already sitting on the ground, huddled close together, knee to knee. The crowd were a mixed group of people, young and old and in-between, with the odd journalist and foreigner here and there. I wondered if members of the Special Investigation Branch were also here, probably.


The sports ground sloped down to one end where a large platform had been erected. The crowd all faced the large platform, and behind the platform was an enormous sign proclaiming the reason for the demonstration: the National League for Democracy (NLD) and the 88 Generation had joined forces to call on the government to amend section 436 of the Constitution. Section 436 contains the amendment procedure to change the 2008 Constitution. This has to be one of the most constitutionally literate people in the world, I thought to myself. In how many other countries (apart from the US) would this many people know or care about the amendment provision of their Constitution?


The gates to the ground were closed by the time I arrived, so people had spilled out onto the surrounding dirt roads, peering through the iron fence. To the left of the grounds a number of small food stalls had popped up. The food vendors were clustered around some card tables where people handed out NLD pamphlets and fliers, and encouraged people to sign the petition to amend the Constitution. Many people in the crowd proudly displayed their political allegiance by wearing NLD paraphernalia – t-shirts, headbands, and arm bands. At the road to the back of the grounds, some people had climbed trees while others stood on the back of a ute parked on the side road, in an attempt to get the best view of the stage. To the right side of the stage, a particularly large group of people had gathered, because that spot offered the best vantage point from which to see the stage. Some young NLD volunteers who wore security badges formed a human chain around the crowd in an attempt to keep people off the road and allow the traffic to get through. The traffic crawled by slowly but patiently, car fumes choking the early air morning.


On stage sat the Lady, Daw Aung San Suu Kyi, member of parliament and the NLD. With her sat U Tin Oo, founder of the NLD, and Min Ko Naing, 88 Generation leader. All three had been political prisoners for their pro-democracy activities during the post-1988 military period. While Daw Aung San Suu Kyi was clearly the favourite, the crowd listened with the same rapture and respect for all speakers. I wondered how many rallies this was now for Daw Aung San Suu Kyi – from the weekly talks that she gave outside her gate in the early 1990s, to the talks she has given around the country when released from country arrest, particularly since 2010.


One of the most unusual aspects of the rally was the silence that prevailed when the speeches were being made. The atmosphere was surreal. There were thousands of people around me, and yet I could not see anyone talking or whispering to each other, nor was anyone on their phone.


Some media reports later estimated the event to have drawn a crowd as big as 20,000 people. Even though it was still early morning, the heat was oppressive and stifling, yet few people moved. All eyes were glued to the stage, as if their life depended on the words of the speakers. At times when one of the speakers made a particularly impassioned plea on the necessity of constitutional amendment, the crowd would cheer and applaud, but then it would inevitably fall respectfully silent again. It was perhaps the most orderly and controlled rally that I have ever been to, a far cry from the government’s claim that such a rally could necessitate a state of emergency.

Constitutional amendment rally in May 2014

I reflect more on this incident in a forthcoming chapter ‘Emergency Powers in Times of Transition: Between the Constitution and the Criminal Procedure Code in Myanmar’, in Andrew Harding (ed) (forthcoming) Constitutional Change and Law Reform in Myanmar. Hart Publishing

Looking back

At the start of a New Year, its always useful to look back to see where we have been and where we have directed our efforts. I have been fortunate to be involved in various initiatives in Myanmar over the past few years, but particularly while I was at National University of Singapore (2012-2014). Here is a recap on events 


October 2012: Workshop on Directions and Determinants in Law Reform in Myanmar – held at NUS, organised by Professor Andrew Harding. Harding has summarised the discussions from this workshop in a chapter Law, Society and Transition in Myanmar.


Semester 1, 2012:Asian Legal Studies Colloquium (2012), I contributed to two ofProf Andrew Harding’s classes on the legal system of Myanmar.


April 2013: Roundtable on Human Rights and Responsible Business in Myanmar, I gave an update on the legal system at a roundtable organised by Melbourne Law School.


May 2013:Australia-Myanmar Constitutional Law Workshop, – I gave a talk on emergency powers and the relationship between the military and the Constitution. The workshop was facilitated by the Sydney Law School in Yangon.


May 2013: Training Assessment Workshop for the Union Attorney General’s Office, Naypyidaw. This was a preliminary workshop with a range of donors, law schools and law officers from the AG’s office about the future training needs of the Attorney General’s Office. Dr Melissa Crouch attended on behalf of CALS.


June 2013:Annual ATLAS Agora June 2013, Prof Andrew Harding and I gave a seminar on legal reform in Myanmar held at the Law Faculty, NUS.


August 2013: Ministry of Law (Singapore) delegation to University of Yangon and Mandalay University Law Departments. I represented NUS on this trip. The focus was on legal education and possible future cooperation between NUS and the two Law Departments in Myanmar. [MOUs were signed in early 2014]


October 2013: Seminar on ‘Prospects and Challenges for Constitutional Reform in Myanmar’, which I gave at the Asian Law Centre, Melbourne Law School, University of Melbourne.
October 2013: Rule of Law in Asia LLM course: I taught in the Masters course at the Melbourne Law School, the University of Melbourne. The class was on ‘The Rule of Law in Myanmar’.


January – April 2014 (sem 2): Transition and the Rule of Law in Myanmar elective, I taught anew elective course for LLB/LLM/PhD students at the Law Faculty, NUS.


January 2014:Workshop on Islam, Law and the State in Myanmar, which I organised. The edited volume Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging is forthcoming.


February 2014:Workshop on Constitutionalism and Law Reform in Myanmar, was held at NUS, organised by Professor Andrew Harding, which I also assisted with. I gave a talk on The Constitutional Writs in Myanmar.


April 2014: Seminar at UNSW: I gave a talk on Constitutionalism in Transition: The Writs as a Litmus Test for Law Reform in Myanmar, at the Law Faculty, University of New South Wales, Sydney.


June 2014: Workshop on Legal Education with Myanmar Japan Legal Resource Centre and the University of Yangon, Yangon. I attended on behalf of National University of Singapore.


July 2014: Law Department Review as part of the Social Science Curriculum Working Group Meeting, hosted by the Open Society Foundation, the University of Yangon and Mandalay University, Yangon.


1-3 August 2014: Bi-annual Burma Studies Group Conference: This was an inter-disciplinary academic event organised in collaboration with the Faculty of Arts and Social Sciences, the Lee Kwan Yew School of Public Policy, and the Law Faculty, the National University of Singapore. The panel I organised was on Religion, Identity and Politics in Myanmar.


August 2014:USAID/Promoting the Rule of Law Project – I participated in a project on Administrative Justice in Myanmar. This including giving a lecture at Mandalay University Law Department.


October 2014:Parliamentary Resource Centre, Naypyidaw: I gave a talk on Administrative Law at the National Democratic Institute in Naypyidaw to Members of Parliament. I also gave a talk in Yangon to lawyers and civil society.


November 2014Australia-Myanmar Constitutional Democracy Workshop. I contributed to a panel on The Rule of Law, focusing specifically on the issues for the rule of law that are raised in a state of emergency.

It has been a dynamic and fascinating experience. Now I have moved to UNSW, I am becoming involved in initiatives here. I’ll post more on these soon.

Workshop on the Indonesian Constitutional Court

For those in Sydney, a workshop on the Indonesian Constitutional Court will be held today and tomorrow. Details below:
Workshop on “The Constitutional Court & Democracy in Indonesia: Judging the First Decade”


11-12 December 2014
Sydney
Presented by the Gilbert + Tobin Centre of Public Law, UNSW Law Faculty and Centre for Asian and Pacific Law, Sydney law School

Draft Program
11 December, UNSW Faculty of Law

4-5.30pm           
Opening Plenary (Law School Theatre) – Panel Discussion with
Prof. Dr. Jimly Asshiddiqie, SH, founding Chief Justice of the Constitutional Court
Prof. Dr. Denny Indrayana, SH, former Deputy Minister for Justice

Chairs:  Professor Rosalind Dixon and A/Prof Simon Butt

5.30-7pm           
Opening Reception – UNSW Staff Seminar Room, Level 2

12 December, University of Sydney Faculty of Law

Venue: Sydney Law School, Room 446

Welcome

9.30-9:40am     Dean’s Welcome (Professor Joellen Riley)

9:40-10am         Introducing participants and conference themes (A/P Simon Butt)

10-11.30am       Workshop Session 1: The Court, the Constitution & Democratic Consolidation
Fritz Siregar (UNSW), The Creation & Consolidation of the Constitutional Court
Dr Stefanus Hendrianto (Santa Clara), ‘Who are We Now? Political Liberalism and the Indonesian Constitutional Court’
Commentators:  Prof. Dr. Denny Indrayana, Mark Tushnet (Harvard Law)
Chair: Professor Rosalind Dixon (UNSW)


11.30-11.45am     
Morning Tea
11.45-1.15pm 
Workshop Session 2: The Constitutional Court, Islam & Democracy                                                                                                   
Dr Melissa Crouch, Islam and the Constitutional Court
Dr Nadirsyah Hosen (Wollongong) The Constitutional Court & ‘Islamic’ Judges
Commentators:   Prof. Dr. Jimly Asshiddiqie, SH, Simon Butt (Sydney)
Chair:    Dr Lucas Lixinski (UNSW)
1.15-2.00pm     
Lunch
2.00-3.30pm     
Workshop Session 3 Case Studies
Professor Tim Lindsey(Melbourne), Hatta, Art 33 and the Constitutional Court
Dr Arskal Salim (UWS), Piety and Penalty in the Practice of Charity in Indonesia: A Judicial Review of Law 23 of 2011 on Zakat
Commentators:               Pan Faiz (UQ), Joel Harrison (Macqaurie)
Chair:                                  Professor Theunis Roux (UNSW)

Court in Indramayu, West Java, 2010.

Remembering the work of the late Professor Andrew Huxley

Remembering the work of the late Professor Andrew Huxley


It is with sadness I heard this week of the passing of Professor Andrew Huxley of the School of Oriental and African Studies (SOAS) London. I had never met Professor Huxley, but I did have email correspondence with him in relation to his recent contribution ‘Is Burmese Law Buddhist?’.[1]


He was also kind enough to read and comment on some of my own work via email, even though he had never met me. I was extremely grateful for his generous comments and feedback. I want to use this post to reflect back on some of his publications that have made a significant contribution to the study of law in Myanmar/Burma.
Professor Huxley spent part of his academic career expanding our understanding of Burmese Buddhist law and locating it in the context of the literature on Buddhist law in Southeast Asia.[2] For readers looking for a concise overview of the literature on Burmese Buddhist law published from the 1980s to 2001, his review offers an excellent introduction.[3]


Professor Huxley highlighted the way in which the dhammathats are evidence of the important role that law played under the kings, and that it was not the British who first introduced the rule of law in Burma.[4] He argued that Burmese Buddhist law is relevant and needs to be understood by historians, Pali scholars and lawyers, because it remains the source of personal law for most Buddhists in Myanmar. His work has advocated for the view that the legal system that existed in Burma prior to colonialism was well-developed. 
Professor Huxley addressed the works of prominent colonial figures, such as John Jardine (1844–1919) who held the position of Judicial Commissioner of British Burma and is well-known for his Notes on Buddhist Law (1882–83); and Em Forchhammer (1851–90), a Government Archaeologist of British Burma who wrote The Jardine Prize: An Essay 1885. For example, on Forchhammer, Professor Huxley questioned his argument that the dhammathat literature of 1880s was derived from a single Mon work, and suggests instead that Mon influence varied depending on place and overtime.[5]


Professor Huxley provided an insightful overview of government policies towards religion and towards the sangha in particular,[6] which is accessible to readers from a common law background with its comparative approach to the conceptualization of religion and the state in England and Burma. He identified three shared concerns: who can oversee religious organisations, which texts are recognised as authoritative, and how the state deals with non-conformists. He highlighted the way in which Buddhist ecclesiastical law was applied in the courts from annexation up until 1918, but after that time declined as judges demonstrated a preference for dhammathat over vinaya. Overall, he demonstrated the way in which the position of the sangha has changed dramatically since independence when the sangha and the vinaya were encouraged and recognised, to the other extreme of excessive legislative control over the sangha.


Professor Huxley often wrote as a comparative law scholar, as evident in his comparison of sixteenth-century Burmese legalism with Western European approaches to law and kingship.[7]


Professor Huxley’s most recent chapter was written at the time of his retirement and constitutes a reflection on the broader socio-political and legal changes that took place after independence and are now taking place at the sixty-fifth anniversary of the country, combined with detailed discussion of the dhammathats.[8] He argued that prior to 1885, Burmese law was distinctly Buddhist; however this year marked not only the end of Burmese rule and the beginning of colonialism across the country, but also the replacement of codified Burmese law with case law. A unique feature of Professor Huxley’s work is the way in which he deftly speaks across legal cultures and families, drawing parallels and contrasts with common and civil law contexts, as well as both Western and Asian legal traditions.


Here is a link to a list of Professor Huxley’s work, which he sent to me several months ago. His work will remain a legacy for scholars of Burmese Buddhist law and Myanmar legal studies generally.
This article is taken from a broader literature review of Myanmar law that can be accessed here.

This article was first posted at New Mandala, 8 December 2014.


[1] Andrew Huxley (2014) ‘Is Burmese Law Buddhist?’ in Melissa Crouch and Tim Lindsey (eds) Law, Society and Transition in Myanmar. Hart Publishing.
[2] For his guide to legal literature on Buddhist law in Southeast Asia, see Andrew Huxley (1997) Studying Theravada Legal Literature, 20 J. Int’l Ass’n Buddhist Stud. 63.
[3] Andrew Huxley (2001), Pre-Colonial Burmese Law: Conical Hat and Shoulder Bag, 25 Int’l Inst. Asian Stud. Online News. available at http://www.iias.nl/iiasn/25/theme/25T7.html.
[4] Andrew Huxley (1997) The Importance of the Dhammathats in Burmese Law and Culture, 1 J. Burma Stud. 1, 15.
[5] Andrew Huxley, Thai, Mon & Burmese Dhammathats: Who Influenced Whom?, in Andrew Huxley (1996) Thai Law: Buddhist Law Essays on the Legal History of Thailand, Laos and Burma 81, 105-09.
[6] Andrew Huxley (2001) Positivists and Buddhists: The Rise and Fall of Anglo-Burmese Ecclesiastical Law, 143 L. Soc. Inquiry 113.
[7] Andrew Huxley (2012) Lord Kyaw Thu’s Precedent: A Sixteenth-Century Burmese Law Reportin Paul Dresch & Hannah Skoda (ed) Legalism, Anthropology and History 309-10.
[8] Andrew Huxley (2014) ‘Is Burmese Law Buddhist?’ in Melissa Crouch and Tim Lindsey (eds) Law, Society and Transition in Myanmar. Hart Publishing.

Australia-Myanmar Constitutional Workshop

On 26-27 November 2014, the Australia-Myanmar Constitutional Democracy Workshop was held at Sedona Hotel in Yangon. Building on the constitutional law workshop held in 2013, this workshop had a particular focus on constitutional principles and institutions. The workshop was hosted by the University of New South Wales, and also included academics from NUS, ANU, Canada and Germany. The workshop was attended by a range of lawyers, legal professionals and NGOs in Yangon. 

I contributed to a panel on the separation of powers, and focused specifically on states of emergency. The constitutional power of the executive to declare a state of emergency continues to present a challenge to the rule of law around the world. For example, in 2014, states of emergency were declared by the governments in Liberia, Sierra Leone and Nigeria respectively, in response to the serious health risk presented by the Ebola virus. Other states of emergency are more controversial and have been declared in response to internal unrest. For example, in August 2014, the Governor of Missouri (United States) declared a state of emergency in the city of Ferguson, after the shooting of an unarmed black teenager by the police led to peaceful protests that at times resulting in vandalism. 

I emphasised that while each emergency may be unique to the local context, they raise similar questions about the limits on this power; the definition of an emergency; and the role of the military. In Myanmar, over the past two years, we have already seen at least nine separate orders issued under section 144 of the Criminal Procedure Code by the General Administration Department that have imposed restrictions on freedom of movement and association. I suggested that this should raise issues of concern because section 144 is supposed to be a judicial power, not an executive power; the General Administration Department is under the Minister of Home Affairs, who is selected by the Commander-in-Chief; and an order under section 144 seems to be a precondition to a constitutional state of emergency. I concluded by suggesting that while the constitutional powers to declare a state of emergency are still of serious concern, that the more immediate issue is the exercise of similar powers under section 144.

Reality check on Islam, Buddhism in Myanmar

Reality check on Islam, Buddhism in Myanmar


The West has been wondering what has gone wrong with Buddhism in Myanmar since 2012 and the violence primarily by Buddhists against Muslims. Yet I want to suggest that this is the wrong question, and that the West needs to take a look in the mirror. The West’s skewed view of Buddhism as a ‘peaceful’ religion, combined with the stereotypical view of Islam as inherently ‘violent’, are a core part of the problem.


Over the past month several reports and a barrage of media reports have surfaced in an attempt to explain the violence against Muslims in Myanmar. Yet implicitly such reports often promote the ‘real’ teachings of Buddhism as a ‘peaceful’ religion, and this adds to the Western stereotype of Islam as somehow ‘violent’.


Let me illustrate this by taking a different perspective to some of the issued raised by Contesting Buddhist Narratives. This report priorities understanding Buddhist fears and concerns, represented in the irrational ranting of the monk (and former convicted criminal) U Wirathu, who is mentioned or quoted from at least 25 times in the report. Yes, we need to understand all aspects of the conflict, but we have paid so little attention to Muslim communities in Myanmar, and this lack of information continues to fuel stereotypes about both Buddhism and Islam. This obscures Muslims’ concerns and fails to acknowledge that Muslims have serious fears too.


The basic premise of the report is that one key way forward is to use Buddhist narratives of non-violence. This is one option, but what about other alternatives, such as secularism? There is very clear precedent for this in Myanmar. General Aung San, the revered martyr and national independence hero, was a secularist. For example, in the drafting of the 1947 Constitution, he insisted that Burma should be a secular state. It was only after his assassination (when he died alongside his colleague and Muslim cabinet member, U Razak) that the provision in the draft constitution on religion was revised to give Buddhism a ‘special position’ (this was actually based on the Irish Constitution and its recognition of Catholicism). Things of course turned from bad to worse in 1961 when U Nu passed a constitutional amendment to make Buddhism the state religion, and the coup of 1962 followed soon after. Collective popular memory in Myanmar of General Aung San seems to have conveniently forgotten that he stood for secularism.


The strength of the report is its knowledge of Buddhism, yet it devotes just one paragraph to representing Muslim views. I understand the report does not claim to focus on understanding Muslims, but that’s precisely my point. Why do Buddhists who are promoting violence deserve our understanding, and Muslims who have suffered the consequences do not? This lack of focus on Muslims has led to many misunderstandings, not least the fact that the West equates Muslims in Myanmar with the term ‘Rohingya’. There is little appreciation of the diversity within the Muslim communities in Myanmar, nor is there any acknowledgement that most Muslims in Myanmar are probably not (or do not self-identify as) Rohingya. The concerns of Muslims in Rakhine State are acute and need to be addressed, but we can’t continue to ignore the fact that Muslim communities can be found right across Myanmar and that they have been severely affected by this violence.


The report also hints at the need to reform Islamic education, although it rightly acknowledges that efforts to promote tolerance in religious-based schools should take place in all religions. But let’s interrogate this view that somehow Islamic education institutions in Myanmar are partly blame (which is also what the Rakhine Commission Report indicated). Using Islamic education institutions as a convenient scapegoat indicates both an ignorance about these institutions, and a failure to remember the past. For example, prior to 1962 there were top schools run by Muslims (and there were also Muslim children who attended top Christian schools) and these institutions provided a broad education, alongside an Islamic education. When Ne Win took over in 1962, Islamic schools, like all other religious schools, were at risk of nationalisation. And many of these Islamic schools were nationalised. Some, however, that were able to convince Ne Win’s regime that they would only teach a narrow Islamic studies curriculum were allowed to continue to function as madrasas. So I think we need to keep past government policies in mind, before we go pointing the blame at Islamic education institutions.

Mosque in Mandalay, photo taken by M Crouch

The report does provide some interesting examples of how Buddhists are participating in inter-religious dialogue. But it fails to mention that some Muslims have been doing this for decades in Myanmar. There has been a very distinct movement in Myanmar for a very long time of Muslims who have bent over backwards to fit in, to tolerate Buddhism and its traditions, and to show that they belong to Myanmar too. These ‘Burmese Muslims’ have insisted on using Burmese language (rather than Arabic or Urdu) as the language of instruction in Islamic schools. These Burmese Muslims have insisted that their women should be free to wear Burmese dress if they choose (which is more revealing than traditional Islamic teachings allow). I am not saying Muslims should have to identify as ‘Burmese’ or compromise their religion in this way; of course if they chose to retain their Indian or Chinese or Shan identity alongside their Muslim identity, they should be allowed to too.


We need to put aside this preoccupation with proving that Buddhism is an inherently peaceful religion while remaining ambiguously silent on Islam. Western media and scholarship needs to intentionally work to dispel the assumptions that Islam is bad and Buddhism is good, that Islam is violent and Buddhism is non-violent, that a monk in a saffron robe is peaceful, but that a man with a beard and wearing a skull cap is violent. These dichotomies are false and contribute to the tensions.


It is time that the West takes a serious reality check on how it views Islam and Buddhism. While the violence and discrimination against Muslims is a reflection on Myanmar, the response of the West is a reflection of persistent stereotypes in the West about Islam and Buddhism.

This article first appeared in New Mandala on 17 November 2014.

Writs but no Weapons? Administrative Justice in Myanmar

Writs but no Weapons? A Stocktake on Administrative Justice in Myanmar


The former Chief Justice Ba U of the Supreme Court of Burma once described the constitutional writs as ‘weapons’. The early years of independence in Burma were a time of significant judicial activism, when the Supreme Court did not hesitate to strike down executive decisions that were beyond the powers of decision-makers or that infringed on the rights of citizens. It also did not hesitate to grant applications for habeas corpus in situations of unlawful detention.
A year ago, I wrote about the striking developments that had taken place in terms of the constitutional writs in Myanmar, a country in which citizens had virtually no opportunities to bring complaints against the government to court from the 1970s to 2011.


A significant number of cases continue to be lodged with the Union Supreme Court of Myanmar, and over 500 applications have been lodge since 2011. This means that there have been far more writ cases lodged with the current Supreme Court (2011-) than there were with the previous Supreme Court (1948-1962) during the period of parliamentary period.


Several of these writ cases have been reported in the Myanmar Law Reports, which is a government-run annual publication that publishes a small number of Supreme Court decisions per year. While only six cases have been reported so far, all of these cases were unsuccessful.

There are three key features evident from these cases. First, all the cases concern the decisions of a lower court. While this is one possible function of the writs, it does suggest that the main role of the Supreme Court at present is to supervise decisions of lower courts, rather than decisions of the executive.


Second, all cases concerned general procedural issues unrelated to substantive administrative law issues. For example, some court documents were incorrectly signed, or cases breached the time limitation under the Limitation Act 1909.


The third feature of these cases is that the decisions do exhibit a basic understanding of the constitutional writs as common law remedies. There is an evident understanding of the concept of jurisdiction and the need for the court to consider whether a government agency has acted beyond its jurisdiction.


Although no reported cases were unsuccessful, the media published the decision of a successful writ application in 2013 that related to an economics professor from East Yangon University who had been unfairly dismissed. The applicant was successful in this case and this decision was welcomed by the legal profession.


Yet the growing number of writ cases has attracted the attention of the Union Parliament, and this has led to debate over the last two years about how the Supreme Court should handle these cases. In mid-2014, these parliamentary debates resulted in the passage of the Law relating to the Writs Procedure, which sets out the details of the court procedure in these cases. In particular, it requires that a bench of three judges must consider every writ application, and that the Chief Justice must sit as one of the judges on every case.
Finally, in my previous post I highlighted an unreported case that was heard by the Supreme Court and concerned the application of habeas corpus of a woman from Kachin State who disappeared three years ago. The woman, Sumlut Roi Ja, was arrested on the pretext that she was affiliated with an illegal organisation (an ethnic army), yet she has not been seen by her family since. The Supreme Court dismissed the case on the basis that the military said they did not have her in their custody. 
Recently, some civil society groups have refused to recognise the decision of the Union Supreme Court and have called on the government to conduct an inquiry into the disappearance of Sumlut Roi Ja. The unresolved fate of Sumlut Roi Ja is a sobre reminder that it is still the weapons of the military, rather than the independence of the courts, that prevail in Myanmar.

Citation: This article first appeared as Melissa Crouch (2014) ‘Writs but no Weapons: A Stocktake of Administrative Justice in Myanmar‘ Int’l J. Const. L. Blog, 12 November.