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.

Report: Australian attitudes towards Indonesia

The Department of Foreign Affairs (Australia) has released the results of a new survey conducted by Newspoll on ‘Australian attitudes towards Indonesia‘.

Most Australians surveyed wrongly believe that Indonesia’s legal system is based on Islamic law, and are not aware that Indonesia is a democracy.

On this issue of people smuggling, 50% of respondents were ‘concerned’ and believed that the Indonesian government is doing ‘little or nothing’ about it.

As Antje Missbach and I have shown in our report on ‘Trials of People Smugglers in Indonesia’, however, the Indonesian government has introduced and begun to implement significant legislative reforms that make people smuggling a criminal offence that potentially attracts a very high prison term and fine.

NUS visits Yangon, Mandalay University

On 12-16 August 2013, Melissa was part of a delegation to Myanmar on behalf of the Law Faculty, the National University of Singapore, organised by the Ministry of Law (Singapore). The trip was also attended by the Dean of the Law Faculty of Singapore Management University and officials from the Ministry of Law, Singapore. Visits were made to Naypidaw, Mandalay and Yangon in order to discuss future collaboration initiatives with the Law Departments of Mandalay University and Yangon University.

Meeting with the Rectors and Heads of the Law Department, the University of Yangon and Mandalay University
Meeting with the Attorney General of Myanmar, Naypidaw

Constitutional amendment key to 2015 Myanmar elections

The coming month is a time of mixed feelings for all those involved in Burma’s democracy movement. 8 August marks the 25th anniversary of the democracy uprising in Burma that was brutally crushed by the military regime. The sweeping electoral victory of the National League for Democracy (NLD) that followed in 1990 was blatantly denied by the military. Many of the NLDs elected members were locked away in prison under brutal conditions. The leader of the NLD, Daw Aung San Suu Kyi, spent many years under house arrest.

Myanmar Constitution 2008

At the same time, a process of drafting a new constitution was initiated by the military. This was neither an inclusive, open nor participatory process. Proceedings were under strict control of the military. Any criticism of the constitution-making process was criminalised.
From 1988 up until 2011, the military ruled in Burma (which it changed to ‘Myanmar’) without a constitution. Since 2011, the regime has allowed for a transition to a more democratic form of government led by a civilian-military government. The 2008 Constitution was a key part of this process. Yet the form of legality it endorses is one that ensures the executive-military remains in firm control of the transition process.
In February 2013, the reformist President Thein Sein announced that a committee would be established in the national parliament to consider amendments to the Constitution. This has created a welcome window of opportunity for constitutional reform. This potential avenue for real change is important for a number of reasons.
First, the 2015 elections are fast approaching. The 2008 Constitution was specifically designed to ensure that Daw Aung San Suu Kyi, as the leader of the democracy movement, could never run as president. The provisions on the requirements of a presidential candidate must be amended so that she is allowed to contest the elections.
The second is the role of the military. The 2008 Constitution appears to implicitly sanction the military as a fourth branch of government. It allows the military to occupy a quarter of the seats in parliament, and it leaves open the possibility for the military to take over power at any time. The Commander-in-Chief also occupies a position that potentially rivals that of the President, and his powers in a state of emergency are absolute. These privileges amount to abuse of the rule of law and must be abolished. Seats in parliament should not be reserved for the military, and the military must be made subordinate to the executive branch.
The third is the separation of powers. While the Constitution recognises a limited form of the separation of powers, it is clear that the executive retains control over both the judiciary and the legislature. It is vital that a separation of the branches of government is made real. In particular, the judiciary must be granted independence through a transparent appointment process and security of tenure.
Fourth, the ‘f’ word – federalism – is a festering issue that remains to be addressed. At its heart is the relation between the central government and local communities. The key consideration is to give greater powers to the States and Regions to govern their own affairs. At present, the Chief Ministers of the States and Regions are appointed by the President. At the very least, this appointment process must change so that the States and Regions are empowered to independently appoint their own Chief Ministers. An additional step forward would be to empower State and Regional governments to manage their own affairs, without threat of national government interference.
Finally, this amendment process must open up opportunities for future constitutional amendments. The Constitution sets an extremely high benchmark in order to pass amendments. It requires more than 75 per cent of all representatives in the national parliament, as well as more than half the votes at a national referendum. This leaves no doubt that the military controls the current constitutional amendment process, given that it occupies 25 per cent of the seats in parliament. The provision on amending the Constitution must be amended to ensure that this is no longer the case.
The list of potential amendments could on – real guarantees for human rights, independence for the Union Election Commission, greater mechanisms for accountability of government action, just to name a few. Yet the above issues would be a real start. These formal and structural reforms to the legal order would then open the way for more substantive changes to take place.

The 8888 anniversary is a time to reflect on 25 years of a heroic and prolonged struggle for democracy, one that continues today. But it must also be a time to look forward, and to see this opening for constitutional amendment as the key to a genuine and fair political contest in the 2015 elections. 

This article first appeared as ‘Constitutional Amendment key to 2015 Myanmar Elections‘  8 August 2013, New Mandala.

Indonesian Constitutional Court reconsiders Blasphemy Law

In 2012, a new case challenging the constitutionality of Indonesia’s Blasphemy Law was lodged with the Constitutional Court.[i] Since Indonesia’s transition to democracy, over 150 individuals from minority religious groups have been convicted of blasphemy. The Blasphemy Law in Indonesia confers power on the Minister of Religion to warn or ban a religious group if it has ‘deviated’ from the teachings of a recognised religion, and it also criminalises the offence of blaspheming a religion. This case for judicial review was brought due to concerns that the law is being misused, particularly after several Shiite Muslims were convicted in 2011.

The hearing for this important case finished in February 2013, although the Court has not yet handed down its decision. Regardless of the outcome, this case (Case 2) highlights the different approaches and strategies of the applicants compared with the first failed challenge to the Blasphemy Law decided by the Constitutional Court in 2010 (Case 1).
The applicants in Case 2 were all Shiite Muslims who had been convicted for blaspheming (Sunni) Islamic teachings. While the majority of Indonesian Muslims are Sunnis, a small Shiite community has existed peaceful in Indonesia for many years. They were represented by lawyers calling themselves the ‘Universal Justice Network’, who had formerly worked at the Legal Aid Institute Bandung.[ii]
The Constitutional Court was able to hear Case 2 as a result of the expansion of its jurisdiction. Prior to 2011, the Constitutional Court could not hear a case on a legal provision if a previous case had already been brought. In 2011, Law 8/2011 amended the law on the Constitutional Court to allow the Court to hear a case on the same legal provision as long as new arguments are made.[iii] The Court decided that the applicants in Case 2 were making new arguments that had not been made in Case 1, and therefore the applicants had standing to bring the case.
The applicants argued that article 4 of the Blasphemy Law, which criminalises the offence of blasphemy, was unconstitutional. This is in contrast to Case 1, in which the applicants attempted a more ambitious approach to argue that all four provisions of the Blasphemy Law were unconstitutional. If the court did not strike out article 4, the applicants in Case 2 asked the court to direct the legislature to revise the Blasphemy Law, or at least to issue a statement against its misuse. They argued that article 4 was inherently uncertain, that the requirement that the blasphemous act be ‘in public’ was unclear, and that no authority had been appointed to determine when a person blasphemed a religion. Four experts gave evidence in favour of the applicants, and one of them was from the Organisation of Islamic Conference.
The applicants also submitted arguments about the misuse of fatawa (Islamic legal opinions) as evidence of blasphemy in criminal trials. This has been a concern in court cases, given that fatawa are not legally recognised as a source of law in Indonesia. Similar to Case 1, few constitutional law arguments were offered, instead the emphasis was on the misuse of the law, the ‘true’ teachings of Islam, and the need to ensure that Shiites are not accused of blaspheming Islam. They emphasised that Shiites are considered to be Muslims both in the broader Muslim community and in Indonesia specifically. They also highlighted that Shiites are followers of one of the recognised mazhab (school of law within Islam). Shiites were contrasted with other groups that are considered to be ‘outside’ of Islam, such as Ahmadiyah, a religious group that was officially ‘warned’ by the government in 2008.
One important difference in the approach of the applicants in Case 2 was that there was a relative absence of reference to or reliance on international standards on religious freedom. Further, in stark contrast to Case 1, the applicants deliberately maintained a low profile, and as a result the case attracted little public attention, and members of radical Islamic groups were not present at the court hearings.
The court hearings were attended by representatives from three government departments, the Ministry of Religion, the Ministry of Law and Human Rights, and the Attorney General’s Office, yet their numbers were small in comparison to the large contingent that defended the government’s position in Case 1. The main arguments of the government representatives were that the applicants did not have legal standing as they did not make new arguments. They also reiterated concerns that the Blasphemy Law was necessary to social order and harmony, echoing the defence set out in Case 1. From the testimony of the experts in favour of the government, it was clear that the Ministry of Religion did not perceive this case as a serious threat to its position, and initially expected the case to be thrown out for not raising new issues.
So what is the potential outcome of this case? The first unlikely possibility is that the Court will agree with the applicants and declare article 4 of the Blasphemy Law unconstitutional. This would mean that blasphemy would no longer be a criminal offence, although this would not stop the legislature from introducing a new law to criminalise blasphemy. The second possibility is that the Court directs the legislature to amend the Blasphemy Law, although the legal basis of its power to do so is unclear. The third possibility is that the Court will reject the application entirely, which means that the prosecution of religious minorities for blaspheming Islam may continue.
The hearing of this case indicates the creative and strategic ways in which litigants are seeking judicial review in the Indonesian Constitutional Court, one of Indonesia’s remarkable public law reforms in the democratic era. The decision of the Court will determine whether the strategic decisions made on the part of the applicants to situate their arguments within accepted local discourses on Islam makes any difference to the ultimate outcome in this case that raises politically-charged religious issues in democratic Indonesia.

Notes


[i] Revised application in Case No 02/KLBH-UNIVERSALIA/VIII/2012, dated 27 September 2012.
[ii] For the court transcripts (in Indonesian) of this case (No 84/PUU-X/2012), see the Indonesian Constitutional Court website.
[iii] Law 8/2011 on the amendment to Law 24/2003 of the Constitution Court, art 60.

This article first appeared in the International Journal of Constitutional Law Blog, July 30, 2013.

A copy of the Indonesian version of the 2010 Constitutional Court decision on the Blasphemy Law is available here. As far as I am aware, there is no official English translation of the decision this case, although the International Center for Law and Religion has translated the part of the decision that contains the court’s reasoning.

University of Yangon website

The University of Yangon is now online, and its website includes information on the Law Department:

“The Department of Law came into existence in 1920 together with the Rangoon University, what is today the University of Yangon (YU). It was one of seven original affiliated faculties of the Rangoon University. During the early years, the Law Department only offered a law degree known as Bachelor of Laws (BL) degree as a part-time post graduate degree course. The BL Degree consisted of a two year course of study…

For more see here.