You have probably noticed that I have not updated the blog recently. I recently found out that I’ve been selected for a Fulbright-Clinton Fellowship in Myanmar (Burma) and will be working at the Myanmar Parliamentary Resource Center for about 10 months. So I’ve been busy moving out of my current apartment, putting it up for rent, etc. So stay tuned to this blog because once I arrive in Myanmar I will definitely start blogging about my experiences there…
Category Archives: Burma
Here’s an article I recently published in the Pacific Rim Law & Policy Journal about Myanmar’s Constitutional Tribunal. I argue that the first bench of members used tetualist and originalist approaches to interpreting the 2008 Constitution. I also speculate that this might have made it more difficult for them to relate to the political changes occurring in Myanmar, and at the least did not reduce the risk of impeachment. You can read it on SSRN here. Enjoy!
Western firms are increasingly interested in investing in Myanmar, and so are Western law firms. The Lawyer is a brief writeup of Allen & Overy’s increasing presence in the country
Earlier this week, the World Justice Project released its fourth annual Rule of Law Index, which for the first time included Myanmar/Burma (data on Myanmar available here). The media, including The Irrawaddy, have focused on Myanmar’s low ranking, 89th out of 99 countries included in the study (and 14th out of 15 countries in East and Southeast Asia). The Index weighs 8 broader factors, such as corruption and transparency, as well as 44 sub-factors. To obtain its measures, WJP interviewed 1,004 households in Myanmar as well as 16 experts (not including yours truly).
As the report’s lead author Alex Ponce pointed out to The Irrawaddy, the surveys only covered Myanmar’s primary urban areas: Rangoon, Mandalay and Naypyidaw. This notably produced a bias in the results in the country’s favor as it overlooked regional and ethnic areas, many of which have yet to feel the impact of the reforms. However, I suspect this problem exists for other countries in the region as well, i.e. that surveys focused on more accessible urban areas, which almost always tend to provide better governance.
In an interview with The Irrawaddy, WPJ executive director Juan Carlos Botero recommended that Myanmar could raise its score relatively quickly by focusing on open governance initiatives. To me, this seems flawed for two different reasons. First, methodologically, open government is weighted as one of eight key factors. While most scholars would accept open government as a component of “the rule of law,” it’s impossible to assign a quantitative weight to open government to the rule of law. However, in the WJP methodology weights it as one-eighth of the final score, so open government initiatives would have a large impact on the WJP rule of law score by virtue of that weighting, not necessarily because it would reflect actual improvements in the rule of law situation on the ground.
Second, open government initiatives are not necessarily as painless and quick as Botero posits. Political elites are often very hesitant to expose their activities to public scrutiny. In Myanmar, genuine transparency would require the military to open its accounting books to the public. This would entail a major political change – an admirable one, but not an easy one. By contrast, political elites would probably feel less threatened by criminal or civil justice reform, even if the process takes years. After all, governments can and do regularly cordon off politically sensitive trials in special tribunals (Nick Cheesman has written about how the Ne Win regime did this with special criminal tribunals during the 1960s).
This is not to say that Myanmar’s government should not undertake open government reforms. With skepticism about the reform process rising, transparency could help improve trust in the government. However, these issues do serve to highlight the challenges we face in measuring the rule of law. A recent review of judicial independence measures by Jeffrey Staton and Julio Rios-Figueroa helps illustrate the variety of potential measures, as well as the flaws inherent in each. So, in short, we should be wary of mourning (or celebrating) Myanmar’s low score in the WJP Rule of Law Index.
By now most readers have probably read the news that Myanmar’s Joint Constitutional Review Committee has issued a report advising against drastic amendments to the 2008 Constitution. According to The Irrawaddy, while the report supports amendments decentralizing government authority to state and region governments, it rejects both the proposal to reduce the military’s role in the legislature and revision of § 59(f) (the ban on presidential candidates with foreign dependents).
The Committee claims that it received over 106,102 letters opposing any amendment to § 59(f), compared to just over 500 in support of change. However, a member of the governing Union Solidarity and Development Party (USDP) has revealed that the petition came from a USDP sponsored initiative and most of the majority of those signatures are from USDP members. It’s a somewhat surprising move given that the USDP seemed to have been amenable to amending § 59(f) just a few weeks ago.
In other news, after months without any cases, President Thein Sein is now threatening to submit eight new laws to the Constitutional Tribunal. According to The Myanmar Times, the laws include:
- the Anti-Corruption Law
- Farmers’ Rights Protection Law
- the Pyithu Hluttaw Law
- Amyotha Hluttaw Law
- Pyidaungsu Hluttaw Law
- Region and State Hluttaw Law
- Union Auditor General’s Office Law
- Constitutional Tribunal Law
According to The Irrawaddy, the Hluttaw’s Judicial Affairs Committee Chairman Thura Aung Ko has revealed that the committee has received over 10,000 letters of complaints, 90% of which made allegations of corruption. Much of the corruption seems to have involved defendants bringing judges or court staff in order to win favorable outcomes. This is not too surprising given reports of corruption in the judiciary. What is not yet clear is the content of the cases, i.e. if they involve business or human rights disputes. In other words, who is affected most by judicial corruption in Myanmar? Does it have a disproportionate impact in certain types of cases? Hopefully, the committee will release a detailed report containing its full findings.
On Monday, Myanmar’s governing Union Solidarity and Development Party announced that it would support amending § 59(f) of the 2008 Constitution to allow Aung San Suu Kyi to run for president. I share my thoughts on this development in the International Journal of Constitutional Law‘s I-CONnect blog.
On another note, hope everybody reading this has a happy and productive New Year!