Constitutional Writs as Weapons in Myanmar

In 2011, Myanmar began its transition to democracy under a civilian-military led government. The process has taken place within the framework of the 2008 Constitution and it has been followed by a range of legal and institutional reforms. One of the important features of the Constitution is that it “re-introduces” constitutionally entrenched writs. This raises the question: what difference can constitutional writs make in transitional regimes?[i]

The Attorney General’s Office is paying renewed attention to the writs in this transitional period. In February 2013, a seminar on the prerogative writs was jointly organized by the Union Attorney-General and the International Commission of Jurists in Naypidaw, Yangon. This is remarkable because it is only one of a handful of workshops hosted by the Attorney General’s Office with international partners since the transition. It has broken the absence of public discourse on the prerogative writs by government agencies.

This is no doubt in response to the significant increase in the number of administrative law cases that have been taken to the Supreme Court. Some sources inside the Attorney General’s Office have put the number of applications between 2012 and 2013 as high as 300. This number appears reasonable in light of the case lists for court hearings in June 2013, which listed 29 court cases for the writ of certiorari.[ii] So how does this compare to the period of parliamentary democracy from 1948 to 1962, in which the writs were constitutionally entrenched?

At independence, the 1947 Constitution conferred power on the Supreme Court to issue the constitutional remedies of habeas corpus, mandamus, prohibition, quo warranto and certiorari.[iii] The constitutional writs were seen as the “means of which this court is empowered to protect and safeguard the person and property of the citizens of the Union”.[iv] From independence in 1948 to the military coup in 1962, there were over 250 reported writ cases, with the writ of certiorari invoked most frequently during this period.[v] The approach of the court in upholding individual rights and limiting government action was summed up in one case in which Chief Justice U Ba characterized the constitutional writs as “weapons”.[vi]

The constitutionally entrenched writs were inevitably affected by the drastic changes to the legal framework from 1962 after the military coup. The Revolutionary Council abolished the existing structure of the judiciary and established the Chief Courts in its place. The frequency of writ applications dropped in the 1960s. By August 1972, the judiciary had been completely domesticated with the introduction of the People’s Judicial System, and the replacement of all professional judges with lay members.

In 1974, a new socialist Constitution was adopted. The Chief Court was abolished and replaced by the Central Court of Justice. Legislative, executive and judicial power merged. Little changed 14 years on when, in September 1988, the military junta took power and established a new court system, but did not reinstate the authority of the Supreme Court to hear writ cases.

It is only now that rights to the writs were re-introduced in the 2008 Constitution.[vii] The writs have been sought in relation to the conflict in Kachin State. For example, in February 2012, an application was made by a Kachin man on behalf of his wife. She had been illegally detained while working on their maize plantation in Kachin State in October 2011,[viii] on suspicions that she was a member of the Kachin Independence Army, the only armed group still in conflict with the government.

On 4 November 2011, the husband sent a letter to the Chief Minister of Kachin State for her release, but received no response. In February 2012, the husband lodged a case with the Supreme Court. The applicants’ case rested on several constitutional provisions.[ix] First, he argued that no citizen can be placed in custody for more than 24 hours without a warrant from the court, and that no warrant had been issued in relation to his wife. Second, every citizen enjoys equality before the law, and he argued that his wife had been treated unfairly. Third, the government has a duty to protect the ‘life and personal freedom’ of his wife, and given that she was not a member of the KIA, there was nothing in the existing law that provided an exception to this right. The applicant emphasized that his wife was a citizen of Burma and that she is of Kachin ethnic group, a recognized ethnic nationality.

The application was short on legal argument, but in terms of case law it did rely on two court rulings of the Supreme Court from the early years of independence. The first was referred to as an example of a case where a wife was granted standing and made a successful application for habeas corpus for release of her husband who had been detained for one year and eight months.[x] The lawyer cited it in support of the husband’s right to bring this case on behalf of his wife. The second case was referred to for the principle set out by the Supreme Court that a person has the right to freedom from unlawful arrest.[xi] The applicant emphasized that there had been no legal basis for the arrest of his wife.

Ultimately, it was reported that the husband’s application was rejected by the court in this case on the grounds that there was no evidence that the army had taken her into its custody before her disappearance. The family has still not been able to locate the wife to date.

What does this case tell us about the effect of applications for constitutional writs in the absence of judicial independence? For the husband, the case was a futile exercise that failed to discover even the location of his wife or confirm whether she is still alive.

From the perspective of the lawyers involved, however, the answer may be slightly more nuanced and suggest an incremental step forward. They perceived the mere opportunity to bring the case to the Supreme Court and receive a hearing to be significant in itself. The act of reintroducing the constitutional writs in the 2008 Constitution had confirmed their existence and removed a level of uncertainty about the relevance of the common law.

Even if it can be seen as a small step forward, it remains true that the fate of the constitutional writs in Myanmar are tied to the broader direction of the legal system, which depends on the release of the judiciary from executive-military control. A process of constitutional amendment is currently in progress, and the need to clarify the separation of powers and the independence of the judiciary is a key part of this agenda. If this does provide a window of opportunity for such a change to take place, then perhaps the writs may be able to truly emerge as ‘weapons’ in Myanmar once again.

This article first appeared in the International Journal of Constitutional Law Blog, 9 July 2013 here.

Notes

[i] The question of what difference does the writ of habeas corpus make was raised in Nick Cheesman (2010) ‘The Incongruous Return of Habeas Corpus to Myanmar’ in Nick Cheesman, Monique Skidmore, and Trevor Wilson (eds) Ruling Myanmar: From Cyclone Nargis to General Elections. Singapore: ISEAS. 90-111.
[ii] This is a significant step forward for the Supreme Court, as it is the first time it has established a website and made information publicly accessible online.
[iii] Art 25(2) of the 1947 Constitution.
[iv] U Htwe (alias) A E Madari v U Tun Ohn and One [1948] BLR (SC) 541.
[v] Ma Hla Aung (2011) Reported Cases of Writs Application with Judgment Summary 1948-1971. Yangon.
[vi] U Htwe (alias) A E Madari v U Tun Ohn and One [1948] BLR (SC) 541, at 547.
[vii] Art 296 and 378 of the 2008 Constitution.
[viii] Application to the Supreme Court for the writ of habeas corpus in the case of U Daung Lwam, 23 February 2011.
[ix] Art 21(b), 376; 347; and 353 of the 2008 Constitution.
[x] Tin Zar Maw Naing & Yangon Policed Colonel [1950] BLR (SC) 17.
[xi] G. M Barnargi and Supervising Officer of Insein Jail [1948] BLR (SC) 199.

Conference on Comparative Administrative Law in Asia

On 8-10 July 2013, the second annual conference on Comparative Administrative Law in Asia will be hosted by the Institutum Iurisprudentiae Academia Sinica (IIAS), Taiwan.

The theme of the conference is ‘Proportionality and Democratic Accountability’. The conference program can be downloaded here.
 
I will present a paper on ‘Administrative Law in Myanmar: Constitutionally Entrenched Writs and Accountability in an Era of Reform.’

Conference on Central-Local Relations in Constitutional Law in Asia

On 28-29 June 2013, a workshop is being held on ‘Central-local Relations in Constitutional Law: In Asia and beyond’ hosted by the Centre for Asian Legal Studies, Faculty of Law, National University of Singapore. 

The workshop seeks to address the following key issues:
“Every constitutional system contains the possibility of localism and a tension between what must be done or decided at the centre and what should be done locally. Some systems such as federal ones contain more than one level of local self-government, in which case the tension operates in three dimensions. This issue affects countries as large as China and India; but also as small as Singapore and Taiwan. Constitutional law attempts to answer some of the questions that arise within this tension: What powers should be exercised locally? To what extent should the exercise of these powers be subject to central control, and how? How should fiscal balancing be effected between the two or three levels of government? How can accountability for the exercise of powers both centrally and locally be achieved through balancing of powers and resources and through the exercise of judicial power? How far should constitutional law itself seek to resolve these issues? How far is local self-government worth preserving?”

I will present a paper on ‘Constitutionalism and Minority Rights in Myanmar: Ethnic Nationalities and the Self-Administered Zones‘.

For a copy of the conference program, see here.

Myanmar, Civilian-military Relations and Constitutional Reform

The rule of law and the constitution matter. This is evident in Myanmar, where current steps towards constitutional amendment have the potential to determine the future direction of the country’s transition process. A key issue is whether the role of the military, as defined by the Constitution of Myanmar, will be changed. 

A constitution in any democracy must clearly define the position of the military and provide for appropriate national defence, while providing mechanisms to prevent the misuse of power. There should be civilian control over the military, and the military should be subordinate to the executive arm of government in particular. To achieve this, the military cannot also be part of the legislature, nor have the power to appoint ministers.

A range of constitutional approaches can limit military power. Some constitutions adopt a minimal approach and briefly refer to the military as subordinate to the executive, leaving other details for further regulation by the legislature. Others take a more expansive approach and set out in detail the role of the military and the limits of its powers.

In Myanmar the military is under the control of the Defence Services Commander-in-Chief, who is appointed by the President. But the President’s appointment is subject to the approval of the National Defence and Security Council, a majority of whose members are from the military. In practice, this means the military has significant influence in appointing its own commander.

The Constitution does not specify the term of the Commander-in-Chief, the qualifications the position requires, or the circumstances in which he could be removed from his position. In contrast, the office of the President has a clear term, the candidate must meet set requirements, and there is a clear process for removal from office.

There are further differences in relation to the composition of Parliament and the election of members. The Commander-in-Chief has the power to nominate the Defence Service personnel in both houses of Parliament, which makes up 25 per cent of the seats. He also has the power to recommend the appointment of the Minister of Home Affairs, Border Affairs and Defence.

The 2008 Constitution creates a complex relationship between the President, the Commander-in-Chief and the military-dominated National Defence and Security Council. Contrary to some recent reports, it is unclear which position has the most power, but the office of the President appears to be subject to greater regulation, at least in comparison to the Commander-in-Chief.

In addition to being subordinate to the executive, the military must not be immune from the law and should also be required to comply with human rights obligations. There are several different approaches to military justice in democratic countries. In some systems, a crime committed by a military officer may be heard by the general courts, and in other contexts such cases are heard by a system of special military courts.

For example, Indonesia has a system of Military Courts with a right to appeal to the Supreme Court, a general body. There has been recent public debate in Indonesia about whether the matters that go to military courts would be dealt with more fairly by the general courts. The Constitution of Myanmar also provides for a system of courts martial, with an ultimate appeal to the Commander-in-Chief. In contrast to Indonesia, there is no right to appeal to the Supreme Court in Myanmar, which means that the decision of the Commander-in-Chief is not subject to review.

Special military courts allow for a degree of specialisation because they are constituted by judges who have a background in the military. But one concern is that these judges may be less independent in their decision-making. Instead, using the general court system to determine cases concerning the military suggests that military officers are subject to the same law and institutions as everyone else.

This is why it is important that the current constitutional amendment process clarify the role of the military. Formal changes to ensure that the military is subject to the control of the executive, and that there are clear limits to its power, would be an important step.


But while the formal safeguards of an amended Constitution will help Myanmar transition to democracy, substantive changes matter too. It is equally important that there exists a culture and mentality within broader society that the military should in fact play a subordinate role to the executive, have no influence over the legislature, and remain subject to the rule of law. Recent reports highlighting the excessive role and dominance of the military are one indication that such a cultural shift may now be occurring.
This article first appeared as ‘Myanmar: Civilian-military relations and constitutional reform’, East Asia Forum. 21 June 2013, available here

ATLAS Agora at NUS

From 17-27 June 2013, the Faculty of Law at the National University of Singapore is hosting the Association of Transnational Law Schools ATLAS Agora.

The ATLAS Agora is an annual international conference for PhD students from several institutions of higher education, including : the London School of Economics and Political Science, New York University, Osgoode Hall Law School of York University (Toronto), Universidad de Deusto (Bilbao), University of Melbourne, Université de Montréal, Bucerius Law School (Hamburg), Bar-Ilan University (Tel Aviv), and NUS. The ATLAS Agora addresses issues such as comparative law; legal and regulatory responses to globalization; the development of the concept of transnational law; and the key issues concerning international governance.

I will give two seminars, one on ‘Current Issues in Indonesian Law: The Courts, Corruption and the Crime of People Smuggling’, and the other with Prof Andrew Harding on ‘The Legal System of Burma/Myanmar’.

The Constitution and Emergency Powers in Myanmar

One of the key challenges as a transitional and democratising state is how the government of Myanmar will deal with social tensions and conflict that arise between religious and ethnic communities. The use of emergency powers is one response, although these powers raise serious questions about the capacity and role of a government to address complex social conflicts. Under the 2008 Constitution, the power to declare a state of emergency is dealt with at some length in Chapter XI (art 410 – 435).
The President has exercised his wide powers to declare a state of emergency twice since the Constitution came into effect in 2011. In this article, I critically examine the use of the constitutional power of emergency. I begin by analysing the response of the executive to the conflict in Rakhine state from June to October 2012, and in Meikhtila District in March 2013. I outline the key elements of emergency powers and identify the challenges to the rule of law inherent in the existing constitutional provisions, including how an emergency is defined, the conditions under which it can be declared, who has the power to make such a declaration, how long it lasts, and what effect it has on human rights.

The full article, which is forthcoming in Panorama, Special Ed on Myanmar in Transition, can be accessed here.

Burmese language study

I’ve been asked a few times recently where you can learn Burmese. Here are a few suggestions:
1.      If you are in Singapore, NUS Extension runs a beginners course if there are enough participants [although note that the course is based on the transliteration, not the Burmese script]

2.      Burmese by Ear, by John Okell is a free online resource

3.      John Okell’s set of 4 language books are an excellent, comprehensive resource

4.      There is a new Burma/Myanmar Language Learning Facebook group, to keep you up to date on courses that are being run.  For more information on courses being run in 2013 and other available resources, see ‘Learning Burmese: courses and resources 2013’ posted by Justin Watkins on the facebook page

Report on Myanmar Constitutional Law Workshop

On 8-10 May 2013, a Constitutional Law Workshop was held in Yangon, organised  by the University of Sydney. Attended by a diverse group of participants, including members of parliament, civil society actors, education institutions and political parties, the workshop was a forum to discuss a broad range of constitutional issues from federalism to bills of rights and the separation of powers.

A detailed report on the workshop is available here.

Report on Business and Human Rights in Myanmar Roundtable

On 17 April 2013, the Australian Council of Trade Unions (ACTU) and the Centre for Employment and Labour Relations Law (CELRL), Melbourne Law School, co-hosted a roundtable on business and human rights in Myanmar. The roundtable brought together government, worker and employer representatives, academic experts, and civil society groups with an interest in issues around Australian investment and human rights in Myanmar. The discussion focused on the human rights challenges of operating in the country and the role of the UN Guiding Principles on Business and Human Rights (the UN Guiding Principles), the OECD Guidelines for Multinational Enterprises (the OECD Guidelines) and other international standards, with a particular focus on the rights of workers.
For the report on the roundtable, see here.

Call for papers: Islam, Law and the State in Myanmar

The Centre for Asian Legal Studies is pleased to invite applications to present a paper at the Workshop on ‘Islam, Law and the State in Myanmar’. The Workshop will be held at the Law Faculty, the National University of Singapore, from 23 to 24 January 2014.

This interdisciplinary workshop will explore the relation between Islam, law and the state in Myanmar from both an empirical and theoretical perspective. It seeks to provide an informed, scholarly response to contemporary issues facing the Muslim communities of Myanmar. It will further understanding and knowledge on the dynamics of, and the interaction between, the legal system, state institutions and the Muslim communities of Myanmar.

See here for the call for papers and submission form, or the Centre for Asian Legal Studies website. 

Abstracts are due by 20 June 2013.