I wrote a brief op-ed in Irrawaddy about political parties in Burma and how they might actually strengthen the country’s authoritarian elites. It’s not related to law so much, but does address some of the broader literature on institutional design in authoritarian countries.
Updates on the Khmer Rouge Tribunal
There’s an article in Asia Times about the current situation of the Khmer Rouge Tribunals. Of particular interest is this description of the KRT’s next steps:
Because the suspects will strongly contest the proceedings and the documentary evidence linking them to atrocities committed by low-level cadres is fragmented, their prosecution is expected to be significantly more difficult than that of Duch, who essentially pleaded guilty after leaving a voluminous paper trail from his time as a prison administrator.
“Case 002 is the most political, the most important, and the most difficult,” said Youk Chhang, director of the Documentation Centre of Cambodia, which helped to compile much of the evidence used by the court. Chhang called the second case “a test of trust between the UN and the government in seeking justice for the Cambodian survivors”.
It’d definitely worth reading in its entirety.
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Filed under Cambodia, Khmer Rouge Tribunal
Why is Burma’s Supreme Court hearing the NLD’s lawsuit?
As you might have noticed, Burma’s Supreme Court agreed to hear a lawsuit by Aung San Suu Kyi’s National League for Democracy challenging the dissolution of the party. While this has received much media attention (for a Democratic Voice of Burma article, see here), it seems to me that most observers haven’t yet really explained the move. I’ll give you a clue: it’s not because the Supreme Court will actually rule against the ruling SPDC or the Election Commission.
Rather, it seems to me that the country’s political elites are increasingly using the courts as a means to take the blame for unpopular decisions. I’ve noticed that the judiciary seems increasingly involved in political questions, such as Suu Kyi’s trial last year (although, of course that involvement remains minimal overall). I suspect this is a deliberate decision and part of the junta’s transition to civilianized rule in which the elite rules through political institutions, not the military hierarchy.
This is a fairly common rationale for courts under authoritarian regimes. In fact, it is probably more important for authoritarian elites who do not have a strong grip on power because they do not possess the legitimacy of their democratic counterparts. In Egypt and China, courts helped reformist leaders begin dismantling the social welfare state over the objections of staunch Nasserites and Maoists. Opponents often focused their wrath on the courts, relieving the politicians of some of the heat.
However, in order for this strategy to be effective, the court must be somewhat independent in order for its rulings to be credible. If it is clearly just an agent of the political elite, then citizens will still blame the government for the court’s policy decisions. If I’m right about why Burma’s courts have become more prominent, I also believe that the junta’s tactic will fail or even backfire because the courts in Burma are notorious for their subservience to the military.
It will be interesting to see how the judiciary develops after the elections, particularly the new Constitutional Tribunal. It might also play this role of deflecting blame for unpopular policies, but unless the courts show some independence (or rule against the government occasionally) they will remain uncredible sources of policymaking.
An interview with a Burmese defense attorney
It’s not often that we get insights into Burma’s criminal justice system. The biggest glimpse was probably last year’s trial of Aung San Suu Kyi. This morning, Irrawaddy published an interview with criminal defnese attorney Aye Nu Sein, who represented Arakanese abbot Ashin Pyinnya Sara. His client was just sentenced to 8 years and 3 months imprisonment for running a private orphanage. Aye Nu Sein is understandably reluctant to speak too frankly, but nevertheless provides enough hints to reveal what he really thinks about the system.
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Filed under Burma, criminal procedure
AIDS and Gender Discrimination in Kenya
I just wanted to let readers know that an article I published with the Georgetown Journal of Gender and the Law is finally out. In the article, my clinic partner and I discuss international and domestic legal arguments against criminalizing HIV/AIDS transmission. While most governments rightly want to prevent the further spread of the disease, criminalization is both ineffective and can discourage victims from seeking help at public health clinics. The article focuses on Kenya, but many countries in Asia have similar laws (in an earlier draft we cited a case from Singapore). I’d be interested in hearing whether anybody has come across similar problems with Southeast Asian HIV policies.
Dominic J. Nardi, Jr. 
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