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.

Myanmar’s State/Region Governments

One positive development given the political changes in Myanmar since 2011 is that empirical research is now possible to a much greater extent than in the past. One recent example of this is an empirical study on state and region governments conducted by a team of researchers from MDRI-CESD in partnership with the Asia Foundation. The report, entitled State and Region Governments in Myanmar, addresses a previously unknown topic in terms of how local governance and administration works, and how, if at all, this has changed in the post-2011 era.  
The report is based on research conducted in four of the seven states and two of the seven regions, namely Karen, Mon, Shan and Chin State, and Tanintharyi and Ayeyarwady Region. The research included interviews with over 70 officials in these areas. The report is rich in details and thorough in scope. Here is a snapshot of a few key points that the report makes:


The Composition of State and Region Governments

First, the report emphasis that state/region governments are very recent developments in Myanmar, and most have not passed any laws to date (although note this month’s Law Gazette appears to suggest that this will soon change with the proposal of several state/region laws).In terms of representation, the figures on women in local governance are low, with only 4 women cabinet ministers across all states/regions (p 56).The disjuncture between state/region departments and ministerial portfolios is striking. As the report highlights: ‘While there are state and region ministers, there are, as yet, no state and region ministries for them to lead’ (p 26). They explain that the reason for this is because ‘they are pre-existing departments within the centralised ministerial structure of Myanmar that have been nominally placed under state/region authority’ (p 25).

The General Administration Department

The report provides vital information on the central role of the General Administration Department, which was established in 1988 when the military took over as part of its strategy to control all levels of governance and administration. The report describes the GAD as ‘the bureaucratic core of the subnational state structure’ (p 33), and emphasises the pivotal role that it plays in terms of village administration.

Courts

On the state/region courts, the report finds that general attitudes towards the judiciary and the courts was ‘highly dismissive’ (p 62).

Importance of Townships

The report briefly refers to the importance of townships in terms of the role township officials play in terms of land registration, taxation, birth registration and so on (p 9). It appears that township governance will be the topic of a future report.
One caveat is that the report only focuses on official state government, although the report does admit that it is limited in its scope because it essentially does not consider legal pluralism, that is, whether there are any existing forms of customary law or other governance structures beyond the state (p 7).

Overall, this report provides an excellent starting point for empirical research on local governance and begins to fill the gaps in our understanding of the form and shape of local governance in Myanmar.

Indonesian Court rejects Blasphemy Court Case

In April 2013, the Indonesian Constitutional Court rejected a challenge to the constitutionality of the Blasphemy Law (although the court decision was only made publicly available in September 2013). As I argued previously, this was the most likely outcome, given the weak constitutional nature of the arguments raised and the failed challenge to the Blasphemy Law in 2010 (‘Case 1’).


The Court dismissed the case (‘Case 2’) in less than 10 pages of reasoning in the 148 page decision. The Court characterised the applicant’s case as revolving around three key arguments.


The first argument was that there is no definition of what constitutes an act of blasphemy done ‘in public’, as required by the Blasphemy Law. On this point, the Court found the phrase ‘in public’ to be sufficiently certain, because it is used in other provisions of the Criminal Code and Indonesian commentary on these provisions is well-established. This highlights that the real issue is not the formal meaning of the phrase ‘in public’, but the way it is being interpreted, or misinterpreted, by local courts in practise.
Second, the applicants argued that the definition of what constitutes ‘blasphemy’ was uncertain. Indirectly, the Court responded by asserting that the scope of the Blasphemy Law and its interpretation was the responsibility of the general courts. It emphasised that the law was needed to maintain social order (a prominent theme in the Court’s previous judgement). It further held that it did not need to address the issue of what constitutes blasphemy because ‘This issue represents a problem concerning the implementation of the law and not a constitutional problem.’


The third main argument of the applicants was that no institution has been given the authority to decide what amounts to blasphemy. From the beginning, the Court emphasised that it could not hear the legality of the conviction of the applicants for blasphemy, which is correct, but only constitutional law issues. The Court cited Case 1 in which it noted that the teachings of a religion are to be decided internally by that religion. The question of interpretation, the Court held, ‘represents a problem of practice, not a constitutional problem’. While this may be the case, its response did not clarify the question of who has the authority to determine whether an act amounts to ‘blasphemy’.


The brief response of the Court in this case therefore ceded no ground to the applicants. Further, the bench chose to repeat some of the statements the Court made in Case 1, rather than offer any new reasoning on the subject. This is despite the fact that only five out of nine judges were on the bench in Case 1 (and one of these was the judge who had dissented in Case 1).

The Court cited Case 1 for the proposition that the Blasphemy Law does not limit religious freedom, but only limits behaviour that degrades or misuses the teachings of a religion followed in Indonesia. It also cited Case 1 to emphasise that other interpretations were allowed to exist, but that a person could not intentionally degrade them in public. It further quoted the concern expressed by the Court in Case 1 that if the Blasphemy Law was abolished, there would be social conflict.


Some of the direct quotations taken from Case 1, however, do not directly correspond to the new arguments that the applicants raise in Case 2. Case 2 was clearly accepted on the basis that the applicants put new arguments to the Court, which therefore required a new response and set of reasoning from the Court. This appears to indicate that the Court relied heavily on the reasoning in Case 1 and did not feel that it could depart from it or add to it.
The Court went on to consider whether the Blasphemy Law was still needed or not, conducting a brief normative assessment rather than an inquiry into the constitutionality of the arguments made.


The Court decision suggests that the creative and strategic approach taken by the litigants in this case failed to make a difference to the ultimate outcome of the case. Yet one wonders if the outcome may have been different if Case 2 had not been brought in the shadow of Case 1.


At any rate, the Constitutional Court is now making headlines for all the wrong reasons, with the Chief Justice of the Constitutional Court, Akil Mochtar, arrested on charges of corruption. Although it relates to a local election case, it also casts a question mark over all cases presided over or decided by Akil Mochtar,[i] including the Blasphemy Law Case 2.

This article first appeared in the International Journal of Constitutional Law Blog, 23 Oct, available here.

Notes

[i] While the Blasphemy Law Case 2 was not actually heard while Akil Mochtar presided as Chief Justice, but rather under the former Chief Justice Mahfud MD, the court decision in Case 2 is actually signed by Akil Mochtar. 

‘Need to know Indonesia’

On the ABC Encounter program this week Margaret Coffey presents a discussion on ‘need-to-know’ Indonesia, with a particular emphasis on the realities of Islam in Indonesia. This is in response to the recent report on ‘Australian Attitudes towards Indonesia’. The program aired on 12 Oct 5pm (Melb time), see here for more details. It also aired on 15 Oct as ‘Do you know enough about Indonesia?’

Legal and Economic Reforms in Myanmar

This week’s Asian Law Centre Occasional Seminar to be held on Thursday 10 October 2013 at 5:30PM is on Legal and Economic Reforms in Maynmar.

The key speaker is Dr Sean Turnell who is an Associate Professor in Economics at Macquarie University in Sydney, and is the author of numerous publications on Burma, including his book on Burma’s monetary and financial history, Fiery Dragons: Banks, Moneylenders and Microfinance in Burma.
Dr Turnell will form a panel on recent reforms in Myanmar with Dr Melissa Crouch, who is a Research Fellow at the Centre for Asian Legal Studies, the Law Faculty, the National University of Singapore.

More details are available from the flier here.

Constitutional Design in the Muslim World

The Law School at Northwestern University are running a Colloquium Series on Constitutional Design in the Muslim World in 2013-2014. The colloquium is convened by Professor Erin Delaney and Professor Kristen Stilt, and will feature work from scholars on jurisdictions as diverse as Iran, Egypt, Tunisia, Sri Lanka, Pakistan, India, Bangladesh, Turkey, Indonesia, and Malaysia. The working papers to be presented at the colloquium, and further information on the colloquium is available at the Colloquium website. 

National Human Rights Commissions in Myanmar, Indonesia

The Hague Journal on the Rule of Law has recently launched a Special Edition on the Development of the Rule of Law in East Asia.

I have written an article on ‘Asian Legal Transplants and Rule of Law Reform: National Human Rights Commission in Myanmar and Indonesia’, which is available for download here.

Myanmar National Human Rights Commission

The abstract is as follows:

The adoption of public accountability institutions has become a crucial aspect of rule of law projects worldwide. This article focuses on National Human Rights Institutions (NHRIs) in order to explore the process by which such legal models and ideas are adopted and borrowed from global actors, and the reliance on regional and sub-regional networks. It considers case studies of two NHRI, Indonesia and Myanmar. It examines several possible meanings and sources of ‘Asian legal transplants’, particularly the role of regional networks as sources of legitimacy. It argues that the sub-regional NHRI network in Southeast Asia has evolved as an alternative site of legitimacy, and that the extent to which a NHRI in Southeast Asia may rely on it depends not only on the regime it operates under, but also on the relative position of the NHRI within the regional network.

In related news, the Myanmar National Human Rights Commission has recently launched a website here [note that my article was written before this information was made available].

Teaching Myanmar’s next generation of lawyers

Major changes have already been made to the legal system in Myanmar over the last two years. The next 10 years will be crucial to the country’s transition to a democratic legal system. As the reform process progresses, there is an urgent need for a new generation of law graduates capable of contributing to the development and consolidation of the law reform process.In August 2012, it was announced that undergraduate degrees would begin to be offered once again by the University of Yangon and Mandalay University. This new cohort of students, to begin in December 2013, will include 15 LLB students in each of the law departments. These changes raise key challenges when considered in light of the history of legal education and the tertiary sector.The history of legal education in Burma began at the then Rangoon University in 1920. For many years, it only offered a postgraduate law degree. It was not until 1965 that a full-time five-year course, referred to as an LLB degree, was offered. An LLM program was later established in 1973.

Department of Law, University of Yangon

Yet legal education has suffered from the same interruptions of periodic forced closures by the government after various political crises that have plagued the tertiary education sector in Myanmar over the years. In more recent decades, the universities closed after the 1988 democracy uprising and did not open again until 1993. The most recent closure occurred in 1996 due to student unrest. This led to the cancellation of all undergraduate courses at the University of Yangon, which has only offered law as an LLM, Diploma degree or PhD since then.

Instead, the government established distance education programs, as well as several new universities, such as East Yangon University and Dagon University on the outskirts of Yangon. The effect of these changes was profound, leading to an oversupply of law graduates, reducing the value of the degree, and keeping students physically distant from the political centre.

The isolation of universities is now coming to an end in light of promising initiatives across the tertiary sector that will allow the universities to engage with a wide range of international partners. Collaborative projects are being established with several universities and international organisations, and regionally with the ASEAN Universities Network.

In fact, reforms and local academic initiatives have already occurred in unexpected places, something impossible prior to Myanmar’s transition. For example, one professor has published a book on the ‘Constitutional Writs in Myanmar’. It is a compilation of case notes on writ cases prior to 1971, yet it constitutes a radical contribution given that the constitutional writs have been ‘re-introduced’ via the 2008 Constitution. The book’s aim is to teach a future generation of law students about the significance of the writs as a mechanism for review of government decisions. By publishing past court precedents, it highlights the important place the writs once held in Myanmar. This is also timely given that over 400 writs cases challenging government decisions have been taken to the Supreme Court since 2011.Yet legal education in Myanmar now faces a series of challenges, some shared by the tertiary education sector broadly and others specific to the discipline of law. Will law departments continue to offer nine-month diploma courses, which do not qualify a graduate to practise law? How will the University of Yangon make the shift from providing graduate degrees to also providing undergraduate education? And what is the future of distance education programs for degrees such as law?

There are many other challenges in terms of facilities and availability of legal resources. For example, university courses are required to be taught in English, yet the Myanmar Law Reports only record selected decisions of the Supreme Court in Burmese. Due to the influence of the socialist, and then military, regime on the judiciary, there is almost no case law in the teaching curriculum. This is also partly because the common law tradition of the doctrine of precedent suffered under successive regimes. These are just some of the challenges that will need to be addressed if legal education is to move forward.
Legal education is not isolated from, but in part depends on, broader legal reforms. This is not to claim that there is a direct correlation between the content and methods of legal education and the direction of the reform process. Debate still exists in many jurisdictions about how to both train students to become lawyers and provide them with a broad education that equips them with a wide range of skills. Yet there is no doubt that in the next decade law graduates will be instrumental to the next stage in the development of Myanmar’s legal system.

This article first appeared as ‘Teaching Myanmar’s next generation of lawyers‘ 18 Sept 2013, East Asia Forum.

Talk on People Smuggling at RSIS, Singapore, and the University of Melbourne

On 3 September 2013, Melissa gave a talk at the Centre for Non-Traditional Security Studies, S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore.
The talk was based on the policy paper on ‘People Smuggling Trials in Indonesia’, co-authored with Dr Antje Missbach.

Dr Antje Missbach will also be giving a talk on People Smuggling Trials in Indonesia on 16 September at the Centre for Indonesian Law, Islam and Society, at the University of Melbourne. For more details on the event and to register, see here. She was interviewed by the ABC here (‘Wrong to Suggest Indonesia Soft on People Smugglers: Report’)

Other reports on the study have also recently been covered by SBS and The Age.