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.

Australian Journal of Asian Law: Issue 14(1)

The latest issue (volume 14 number 1) of the Australian Journal of Asian Law is now available on-line. There are a range of contributions, including:

Articles
1. Genders and Genetics: The Legal and Medical Regulation of Family Forms in Contemporary Japan – Vera Mackie
2. Regulating Water Concessions in China: Towards a Transparent Pricing System – Wei Yan
3. Legal Regulation of Decent Work: Evidence from Two Big Industries in Bangladesh – Mia Mahmudur Rahim
4. The Establishment of Juvenile Courts and the Fulfilment of Vietnam’s Obligations under the Convention on the Rights of the Child – PHAM Thi Thanh Nga
5. Transnational Corporations and Human Rights Violations in Indonesia – Iman Prihandono
6. Criminalisation of Money Laundering in the International Anti-Money Laundering Regime and its Adoption by Vietnam – Chat Le Nguyen

Essay
7. Essay: Muslim Law, Ahmadiyya and Islamic Doctrine in Singapore – MB Hooker

Reviews
8. Review Essay: Law and Order in a Land of Tough Love – Michael D Barr
9. Book Review: Global Textiles and Clothing Trade – James Lockett
10. Review Essay: Legal Pluralism in Indonesia – Melissa Crouch

The articles can be accessed for free at SSRN.

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.’