March 21, 2013 · 15:24

A Philippine Griswold? (Philippines)

When comparing the Philippine Supreme Court’s activism with that of the U.S., one of the biggest differences is that the Philippine court has not ventured deeply into the realm of reproductive rights. Now, the Aquino administration’s new Reproductive Health law might have given the court’s its own Griswold v. Connecticut. Among other things, the law would provide public funds to provide contraceptives (for more about the law and commentary, check out this IRIN article).

Catholic groups have challenged the law as potentially undermining the constitutional principle that the family is the fundamental social unit. The court has issued a temporary restraining order against the law until it hears oral arguments in June. Human rights groups have criticized the delay as risking women’s health during the intervening four months.

Thus far, I haven’t seen any attempts to “count” the likely votes of the justices. According to The Manila Times, 10 justices joined the TRO while 5 dissented. However, it’s certainly not impossibly that three of the justices who signed the TRO would vote to uphold the law after oral arguments. The TRO is after all temporary and simply designed to allow the court to hear such a momentous case.

The case will also be a rest of Chief Justice Sereno’s leadership. Sereno, an Aquino appointee, was one of the five justices to dissent. There is still little research about how the chief justiceship influences the votes of the other justices, but the Philippine Supreme Court chief justiceship is relatively strong and the justice has control over judicial budgets. Can she corral a majority on the court?

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March 20, 2013 · 23:33

Does Rule of Law matter? (Myanmar/Burma)

On the pages of the Democratic Voice of Burma website, Elliott-Prasse Freeman and Ellen Wiles have been debating the importance of the rule of law for Myanmar’s political transition. This of course is a significant debate and political scientists have debated it for years. I won’t try to summarize the literature comprehensively, but I thought I’d provide some examples.

A traditional view of the relationship between the “rule of law” and economic growth is that independent courts provide businessmen and investors with a “credible commitment”that the government will respect contracts and private property . Rafael LaPorta, Florencio Lopez-de-Silanes, and Andrei Shleifer, have written several articles arguing that judicial independence, common law legal systems, and “rule of law” tend to increase economic growth. Stefan Voigt likewise finds that judicial independence and accountability tend to improve growth.

By contrast, the relationship is much murkier when looking at human rights. Sandholtz finds that human rights treaties are more effective in countries with independent courts. However, Volcansek and Lockhart find no relationship between judicial independence and human rights conditions more broadly. Law and Veerstag are also generally skeptical about the effect of constitutional provisions protecting rights to have an effect in practice.

However, three problems plague this literature. First, there is what political scientists call “reverse causality” whereby the dependent variable (economic growth) also impacts levels of “rule of law.” Second, there is an “omitted variable bias” whereby there might be some third variable that influences both levels of “rule of law” and the economy. Finally, as Ellen Wiles noted in her DVB piece, measuring judicial independence and the “rule of law” are frustratingly difficult.

By contrast, in the literature considering the origins of judicial independence, many scholars argue that political elites only create independent courts when they are politically constrained. Independent courts protect elites if and when they fall from power (Tom Ginsburg’s Judicial Review in New Democracies is probably the best known work in this field). A paper by several of my co-authors at the University of Michigan finds that the distinction between authoritarian and democracy isn’t so relevant for promoting economic growth and public goods. Rather, the key difference is political constraints on rulers.

Indeed, what we’re currently seeing in Myanmar now is the development of very real political constrains on the government. Gone are the days of one-general rule. Neither President Thein Sein nor Speaker Shwe Mann (nor Commander in Chief Min Aung Hlaing for that matter) can make policy unilaterally on most subjects. It’s probably not a coincidence that constitutional reform and judicial reform are now on the table (although it’s too early to tell how far they will go).

While the debate in the literature is far from settled, my sense is that the “rule of law” and independent courts might provide Myanmar with a more hospitable economic climate, but most businesses (especially foreign investors) will be more concerned about the basics, such as real estate, internet, infrastructure, etc. However, broader “rule of law” and judicial reforms do seem to stem from political changes at the top, so it might be a mistake to hope that the “rule of law” could lead to democracy or human rights.

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March 19, 2013 · 15:56

Constitutional reform so soon? (Myanmar/Burma)

It appears that there is a consensus to explore amending Myanmar’s constitution. Last Friday, according to an official announcement, the Hluttaw announced that it would form a committee of law experts to propose amendments to the 2008 Constitution. The committee hasn’t proposed any specific amendments yet, but the assumption seems to be (almost) anything is on the table.

Most media commentary has focused on the potential that constitutional amendments could have for Aung San Suu Kyi’s position. Particularly, there is a possibility that the amendments will remove the ban on presidential candidates with foreign dependents. However, Eric Randolph at Irrawaddy reports that many believe the reforms are intended to benefit Pyithu Hluttaw Speaker Shwe Mann. According to the article:

A Western diplomat, speaking on condition of anonymity, told The Irrawaddy last week that he believed some form of back-room agreement has been reached between Suu Kyi and Shwe Mann.

“They feel they can work together—they have some common ground,” said the diplomat. “He is one of the people who has changed the most, and they have a shared interest in strengthening Parliament. She sees it as key to establishing democracy, and he sees it as a potential power base.”

While it’s not clear what amendments Shwe Mann’s allies are seeking, the broader notion makes sense. Constitutional reform is costly. While many analysts expect Aung San SuuKyi and the National League for Democracy to sweep the 2015 elections, that result is far from guaranteed. For one, as many have noted, the NLD has thus far not succeeded in rejuvenating the party. Daw Suu’s charisma remains powerful, yet tarnished after the controversial Letpadaung Commission report. However, the party is alienating young activists, who will likely be key to rounding up votes in a free and fair election. Moreover, the NLD lacks policy expertise. While the NLD might not need a think tank to win an election, it does need credibility.


If there is to be constitutional change, my bet is actually that amendments will transform Myanmar into more of a presidential-parliamentary system along the lines of France. Shwe Mann could carve out a viable role for himself as a “de facto” prime minister, while Daw Suu could serve as a president with reduced powers focused on foreign relations. Frankly, Daw Suu’s comparative expertise lies in her ties to the international community so she might be perfectly satisfied in this sort of role. Moreover, as a president, she would be in a position to check that the reforms are not rolled back.

Some commentators have also suggested that the reforms could strengthen the rights of state governments, partly meeting the demands of ethnic minority parties for federalism. Here I’m somewhat more skeptical. First, the ethnic minority parties have yet to prove their electoral viability, especially at the national level. There are dozens of ethnic parties in the Hluttaw, but even after having boycotted the 2010 elections the NLD is still the largest opposition party.

The ethnic groups’ political strength really comes from the military strength of ceasefire groups. This power is not inconsiderable. Thein Sein’s administration has taken great efforts to negotiate ceasefire agreements and political agreements with most of these groups. However, the Union government would probably still be reluctant to give the states sovereignty, as full federalism would require, if there are still armed groups in control of large swaths of territory. Rather, if anything, I suspect constitutional amendments would expand the legislative schedules of the state governments such that the states have greater jurisdiction over issues like education and natural resources.

It’s obviously an exciting time for Myanmar and the possibilities seem endless. However, over the coming weeks it will be important to remember that any constitutional compromise must come as a result of compromise. Constitutional change does not simply mean that “democracy” has won. It will be important to consider exactly how the compromise occurs and which provisions of the constitutions are changed.

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March 15, 2013 · 20:04

Walking free (Cambodia)

It’s been quite some time since we’ve heard good news out of Cambodia. This week, a Cambodian court of appeals freed a radio station owner, Mam Sonando (71-years old), who had been sentenced for 20 years on charges of secessionism. As is often the case, Sonando’s real crime was simply criticism of Hun Sen’s government. It’s a relatively bold move for the judges involved. I’m personally not as familiar with Cambodian politics, but friends who are confirm that Hun Sen’s political position remains secure and courts have seldom ruled against the regime.

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March 13, 2013 · 06:11

Letpadaung heating up (Myanmar/Burma)

The dispute over the Letpadaung Copper Mine is the latest test confronting President Thein Sein’s administration. The project is a joint venture between the  military-owned Union of Myanmar Economic Holdings Ltd (UMEHL)  and the Chinese firm Wanbao. Local villagers allege that the military confiscated 7,800 acres of farmland back in 2010. Last November, the government responded to protests with force, allegedly injuring a hundred people, including Buddhist monks. 

Recently, the villagers had turned to legal means. According to Irrawaddy, Three villagers from Hsetae and Moegyoepyin villages filed a complaint in the Salingyi Township Court. The court dismissed the charge. However, the group’s lawyer, Saw Kyaw Kyaw Min, has already announced his intention to appeal to the Monywa District Court.
While the case could become a new test of the judiciary’s willingness to hear claims against the government, in all likelihood it will be preempted by the government’s official report on the incident. Aung San Suu Kyi’s parliamentary commission has written a report, which according to sources has already been published in the newspaper The Mirror. I’ve not read the report yet, but it will almost certainly address the question of liability.

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