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.
Working Group on Myanmar Attorney General’s Office
On 21-22 May 2013, Melissa attended a consultation workshop with the Attorney General’s Office in Naypyitaw, Myanmar. The purpose of the workshop was to develop recommendations for the future training needs of the Union Attorney General’s Office (UAGO). Hosted by the UAGO and the UNDP, the workshop was attended by representatives from a range of law schools, institutions and development organisations from around the world.
Melissa with law officers from the UAGO
International workshop participants with workshop facilitator Larry Taman, and the Attorney General of Myanmar, Dr Tun Shin.
Melissa Crouch 