March 29, 2012 · 14:05

Two Myanmar Tribunal Decisions for 2012

Myanmar’s Constitutional Tribunal delivered two more decisions today. Case No. 2/2012 simply reaffirmed the court’s decision in Case No. 1/2012, which held that Region or State National Races Affairs Ministers are eligible as ministers. The other case (No. 2/2012) struck down a definition of Union level organizations that included boards and committees established by the Hluttaw. 

To be quite honest, I don’t yet have a good sense as to what interests were at stake here. Various provisions of the 2008 Constitution give union level organizations the right to submit bills to the Hluttaw, but I imagine that was not the central concern for organizations formed by the Hluttaw. The Constitution also permits such organizations freedom of speech in the Hluttaw and before Hluttaw Committees (hence, the court’s decision that committees can’t also be union level organizations). Finally, I found one interesting provision in § 230(a) that union level organizations must have their budgets vetted by one of the vice presidents and submitted to the Financial Commission. Could the Attorney General have wanted to enforce this requirement?
Hopefully, we’ll learn more about the motives behind this case. In the meantime, I’ve reprinted both the initial New Light of Myanmar article mentioning the initial filing of the case and the later one announcing the final decision.

State Constitutional Tribunal hears Attorney-General’s query

NAY PYI TAW, 24 Feb-The Attorney- General of the Union on behalf of the President has submitted letter No. 1/2012 to the State Constitutional Tribunal, asking the tribunal’s resolution about “whether defining of committees, commission and boards formed by respective Hluttaws as Union level organization in the provisions of the laws of the respective Hlutatws is in line with the constitution (or) whether committees, commissions and boards founded by the Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw with the rights vested to them in the constitution can be considered as Union level organization.”

The tribunal heard the proposal submitted according to Article 322 (a) and Article 325 (a) of the Constitution of the Republic of the Union of Myanmar at Room No. 1 this morning.-MNA

Constitutional Tribunal of the State delivers final verdicts

NAY PYI TAW, 28 March-The Constitutional Tribunal of the State inclusive of the chairman and all the members delivered final verdict on proposal No 1/2012 and proposal No 2/2012 submitted the Attorney- General of the Union on behalf of the President at Room No. 1 today.

According to the verdicts, in the proposal No 1/2012, Union level organizations formed under the constitution and the members or personalities of those organizations are members and personalities of Union organizations appointed by the President with the approval of the Pyidaungsu Hluttaw.

Committees, commissions and groups formed by respective Hluttaws are parliamentary organizations.

The additional definition of committees, commissions and groups formed by respective Hluttaws as Union level organizations violates the provisions of the constitution.

In the proposal No 2/ 2012, the Attorney-General of the Union on behalf of the President asked the tribunal to reconsider its resolution made on 14 December, 2011 which defined that provisions of the Article 5 and Article 17 of the Region or State Personalities’ Allowances, Emolument and Insignia Law are not conformity with the constitution because Region or State national races affairs ministers are officially appointed as Region or State ministers of respective Region or States. The tribunal did not accept the proposal as its resolution is final verdict legally.-MNA

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March 28, 2012 · 01:33

Burma’s courts: rhetoric vs. reality

The Asian Human Rights Commission released a statement condemning the continued subordination of Myanmar’s judiciary. AHRC alleges the government’s talks the talk, but so far hasn’t walked the walk:

“The legacy of judicial corruption is today in the foreground of media and public debate, but the anti-corruption rhetoric that we hear is essentially a continuation of the same type of rhetoric that successive military and military-backed regimes iterated for decades,” said the AHRC.

In reporting on the statement, The Irrawaddy highlights recent libel suits against The Voice and Modern Weekly.

While of concern, I do think the government’s rhetoric is changing. Whereas a few years ago military officials would admonish judges and blame judicial corruption on loose morals, now public officials seem at least implicitly more willing to acknowledge systemic problems that lead to corruption. As I’ve written before, the Hluttaw has even taken to reviewing allegations of judicial bias. What’s becoming more troubling now is the gap between acknowledgement of the problem and effective judicial reforms.

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March 27, 2012 · 15:09

Book Review: Shadow of Doubt

I haven’t forgotten that I promised to post my book review about Shadow of Doubt. The Columbia Journal of Asian Law has published the article in the Spring 2011 edition of their journal. Once I have a pdf I’ll post it for anybody interested (short story: it’s a great read).

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March 23, 2012 · 15:15

The MK lends an assist

A few weeks ago I posted a news article in which Indonesia’s Supreme Court and KPK agreed on a corruption case – no small news. Now, the Constitutional Case has supported the Supreme Court’s decision in another corruption case – this time dismissing a challenge against the constitutionality of the prosecutor’s appeal when a corruption defendant was acquitted. Read more in The Jakarta Post.

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Filed under corruption, indonesia, Mahkamah Konstitusi, Supreme Court

March 23, 2012 · 13:40

Cowardly Courts?

As I’ve written before, Burma’s judiciary seems not to have reformed at the same pace as the rest of the political system. Several recent articles have highlighted this. The Irrawaddy reports that the Supreme Court dismissed a Kachin woman’s case against a local military battalion without even informing her lawyer! The Guardian notes that judges haven’t been merely passive victims, but rather participants in the network of corruption:

The problem in Burma today is not that judges are struggling to be independent against a heavy-handed regime, but rather that judges are part and parcel of decades of a military governing system. Judges routinely impose unjustified sentences in political cases, allowing them to keep their jobs and access to the benefits of a corrupt system.

As I’ve said before, this reminds me a bit of Indonesia right after Reformasi. There, granting courts judicial independence effectively insulated the system of corruption that existed within the bench and prevented outside actors, such as the Judicial Commission, from forcing reforms. As such I strongly believe Burma should take steps to improve the quality of the judicial system before moving towards robust independence.

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Filed under Burma, courts, judicial independence, Myanmar