Transition and the Rule of Law in Myanmar

This semester, I am offering an elective course on ‘Transition and the Rule of Law in Myanmar‘, at the Law Faculty, NUS.

Here is a brief outline of the course. This subject will provide an introduction to the legal system of Myanmar/Burma in the context of the dynamic transition since 2011 from military rule to a quasi-civilian government. It will consider the legal framework and legal institutions in Myanmar in light of the literature on legal transplants and rule of law reform in transitional and developing states. The focus will be on understanding the Myanmar legal system in its social, political and historical context. The subject will include discussions on the constitution; the role of the legislature; the courts; human rights; business and economic reforms; and institutional reform. 

For students considering taking the course, the mode of assessment for this course is 80% research essay, 10% class presentation and 10% class participation. If you are a student at NUS and are having trouble accessing the IVLE, please contact me.

Law, Society and Transition in Myanmar

Edited by Melissa Crouch and Tim Lindsey, 2014 Hart Publishing


This is the first edited volume to address the dynamics of the legal system of Myanmar/Burma in the context of the transition to democracy. It includes contributions from leading scholars in the field on a range of key legal issues now facing Myanmar, such as judicial independence, constitutional law, human rights and institutional reform. It features chapters on the legal history of Myanmar; electoral reform; the role of the judiciary; economic reforms; and the state of company law. It also includes chapters that draw on the experiences of other countries to contextualise Myanmar’s law reform process in comparative setting, including Myanmar’s participation in regional bodies such as ASEAN. This topical book comes at a critical juncture in Myanmar’s legal development and will be an invaluable resource for students and academics seeking greater understanding of the legal system of Myanmar. It will also be vital reading for a wide range of government, business and civil society organisations seeking to re-engage with Myanmar, as it navigates the challenges of transition towards democracy and the rule of law. Note: this book is also available for purchase in Myanmar from the Myanmar Book Centre, and Monument Books in Yangon. 

“With chapters contributed by renowned legal experts and specialists on Myanmar, it explains how law is understood in Myanmar and how it works in practise” “…this volume will serve as a good reference work for scholars interested in Myanmar by highlighting the importance of legal reform in its nascent transition.” U Chit Win, PhD candidate at ANU; Deputy Director from the Ministry of Foreign Affairs in Naypyidaw; in Australian Journal of Administrative Law (2015) 22: 199-200 UNSW Newsletter, Uniken Winter 2015 review Reviewed by Moe Thuzar (2016), Contemporary Southeast AsiaReviewed by Mahdev Mohan (2015), Asian Journal of Comparative Law.

Australian Journal of Asian Law Edition 14(2)

Edition 14(2) of the Australian Journal of Asian Law is now available on SSRN
It includes the following articles:

The Internal Logic Behind the Evolution of Company Law in China – Do Legal Origins Matter?
Andrew Godwin

Excusing Notice Under Singapore’s Statutory Derivative Action
Alan K. Koh

The Fiduciary Doctrine as a New Pathway: An Alternative Approach to Analysing Native Customary Rights in Sarawak
Hang Wu Tang

Case Note: Named or Unnamed? The Importance of Anonymity: In the Matter of BU (Applicant/Appellant): Civil Appeal No 103 of 2012 (Hong Kong)
Charles KN Lam

The Standard of Medical Care in Malaysia: The Case for Legislative Reform
Joseph Lee

Legislative Update: Recent Amendments to South Korean Criminal Law: Confronting Child Sexual Abuse

Hyungsoon Park
The Criminalisation of People Smuggling: The Dynamics of Judicial Discretion in Indonesia
Antje Missbach and Melissa Crouch

In our paper on people smuggling, we analyse the way in which Indonesian judges have defied the legislature and sought to retain judicial discretion in sentencing practises for people smuggling cases, at times handing down a prison sentence less than the five year minimum. While this creates legal uncertainty and does not promote the rule of law, it has meant that an accused has a greater chance of the circumstances of their case being taken into consideration at the sentencing stage of a trial for the offence of people smuggling. This is important, given that most people who are brought to court are small actors in contrast to the bigger networks of people smugglers. This provides a comparative point of reflection on sentencing practises for people smuggling, given that Australia’s High Court recently upheld mandatory sentencing for people smuggling offences, despite the fact that judges and human rights organisations have spoken out against the mandatory minimum sentence.

Indonesia on use of the word ‘Allah’

In the latest development in the Malaysian court case on the use of the word ‘Allah’, the Court of Appeal overturned the decision of the lower court and decided that non-Muslims could not use the word ‘Allah’.

From a comparative perspective, Indonesia provides a different example on this issue. As I discuss in chapter 6 of my book on Law and Religion in Indonesia, the use of the word ‘Allah’ has not been a cause of controversy between Muslims and Christians in Indonesia. Instead, there have been discussions and debates within the Christian community itself about whether it is more appropriate to use the term ‘Allah’, ‘Tuhan’ or ‘Yahweh’ for God. 
For example, in 2007, the Indonesian Bible Society was brought to court by an individual who disagreed with the use of the word ‘Allah’. The applicant attempted to argue that the Indonesian Bible Society should translate the word for God in the Indonesian translation of the bibles it prints using the term ‘Tuhan’ rather than the term ‘Allah’. Given the lack of any clear legal basis or argument for the applicant’s claim, the case was dismissed by the court.

New Reports on Myanmar Law

There have been a number of new reports on Myanmar’s legal and political system.
report on the legal profession was recently released by the International Commission of Jurists. The substantive aspect of the report can be seen as building on the broader assessment of the legal system by the International Bar Association in 2012
There has been a new report assessing legislative activity in Myanmar, released by International Crisis Group.
There have also been a range of reports by other organisations on more specific aspects of the legal system, such as a report on the right to peaceful assembly by Article 19, and a report on state and region governance by the Asia Foundation and MDRI.
Finally, the Konrad Adenauer Stiftung has just published a journal edition on ‘Myanmar in Transition’, available online.

Aung San Suu Kyi and my neighbours

In late November 2013, Daw Aung San Suu Kyi made her first visit to Australia, much to the delight of the Burmese community in Australia. For many of my Burmese friends there, this is a reunion that has been long awaited. One of my former neighbours, Ko Aibar, was recently interviewed by the ABC about his experience as a bodyguard for Daw Suu, his participation in the democracy struggle, and his life since moving to Australia, including the establishment by friends of the Free Burma cafe. [the ABC video can be viewed here]


I first met Ko Aibar in 2009 when he arrived in Melbourne through Australia’s humanitarian refugee program, from Thailand-Burma border. I knew little of his background until one day when I was invited to his daughter’s birthday party. As I sat in his home eating mohinga (a popular Burmese noodle dish with fish), his wife brought out a photo album of their wedding. I was surprised to find among the photos a picture of Ko Aibar and his wife with Daw Suu, who had attended his wedding. From there, I learnt of his involvement with the National League for Democracy in the 1990s, his time in prison for his political activity, and his later journey to Thailand and his work with the Assistance Association for Political Prisoners.


While the ABC report does not portray the full extent of the challenges Ko Aibar and others like him have been through, it does a wonderful job of capturing how much Daw Suu’s visit means to the Burmese community of Melbourne, summed up in the beaming smile on his face.

Myanmar’s Constitutional Transition is the Military’s Call

Myanmar’s democracy icon and member of parliament Daw Aung San Suu Kyi is currently visiting Australia. This historic trip is just one reflection of the broader political and legal changes currently taking place in Myanmar.
Since 2011 – under the framework of the 2008 Constitution – Myanmar has begun a transition to a quasi-civilian government. One result of its opening is that it has become the new “law and development” frontier of Asia. Many international agencies, NGOs and embassies have increased their presence and activities in Myanmar, including Australia.


Even so, there is a lingering sense of uncertainty that stems from the Constitution, which could allow for the military to take over at any time. Such political fragility has affected Australia’s engagement with Myanmar in the past. For example, a human rights training workshop funded by Australia was cut short in 2003 because of deteriorating political conditions under military rule, which followed an attempted attack on Aung San Suu Kyi.


Until the 2008 Constitution is amended, all local efforts to build the rule of law, including those supported by international partners, work under the uncertainty cast by the legal framework. An opportunity for amendment to the Constitution was initiated in February 2013 when Myanmar’s president Thein Sein announced that a committee to review the Constitution would be established, which was approved by the Union Parliament in July.

The committee is responsible for proposing constitutional amendments to promote peace, national unity and democratic reforms in Myanmar. This has created a welcome window for constitutional reform.


This constitutional amendment process is key to the 2015 elections, and will in part determine whether the elections are free and fair. A wide range of issues may be under discussion, such as the requirements for president, which could potentially exclude Aung San Suu Kyi from being nominated by the presidential electoral college.


Whether this amendment process will result in substantive reforms partly depends on how different the political environment is now compared to the former constitution drafting process.


Time limit

The first difference is that the current process has a time limitation. The committee is required to submit its report by the end of January 2014. In contrast, the drafting of the Constitution dragged out from 1993 to 2007, although from 1996 to 2004 the drafting process was suspended altogether.
While the current review only allows a narrow window for consultation and discussion, at least it potentially provides time for any proposed changes to be voted on by parliament, and at a national referendum, before the 2015 election.


Participants

The present committee consists of 109 members, with proportional representation of members of parliament. Most are from the military backed-Union Solidarity and Development Party (USDP), the military, or ethnic-based parties, and were elected in the 2010 election, which was not considered to be free and fair.
The committee also includes seven National League for Democracy (NLD) members, who were elected in the 2012 by-election, which was considered to be free and fair.
In comparison, the previous National Convention in the 1990s initially included over 700 participants, but these were selected by the military. Less than 100 of the 485 elected MPs from the 1990 election were allowed to participate, although none were ever allowed to take office. NLD members who initially participated later withdrew in protest.
While the number of freely elected members was higher, the political atmosphere is in stark contrast to what it is currently.


Public discussion and consultation

In 1996, the military issued a law that specifically criminalised any criticism of the drafting process or attempts to draft an alternative constitution, attracting a prison term of up to 20 years. In contrast, public discussion of the current constitutional amendment process is not a criminal offence.
A constitutional amendment requires at least 75% approval of the Myanmar parliament, 25% of which is currently occupied by the military. EPA/Nyein Chan Naing
In addition, there has been frequent media coverage on constitutional and legal reforms now taking place. This is partly due to the significant media reforms that have been introduced.
Another difference is that the drafting process in the 1990s did not involve any public consultation. The core of the draft constitution had largely been scripted from the beginning, although there was some discussion among participants on its substance. In contrast, the current committee issued an official public call for submissions in October, which potentially allows some room for public engagement.


Potential for reform?

Even if the committee does recommend significant constitutional changes, any proposal for constitutional amendment requires at least 75% approval of parliament, and more than 50% of all eligible voters at a national referendum. This is a huge hurdle, and requires the full agreement of the military, who occupy 25% of the seats in parliament.
While on her visit to Australia, Aung San Suu Kyi will no doubt call for the rule of law and constitutional reform. However, this is one call that only the military can answer.

This article first appeared in The Conversation, 27 November 2013.