Category Archives: Burma

April 15, 2010 · 22:25

Constitution Drafting Round I: Burma v. Kenya

Here’s something you don’t see every day: somebody comparing Burma’s constitution-drafting process to their own in a favorable light. Well, kind of. Here’s from Kenya’s Daily Nation:

Kenyan commentators and politicians also like to speak about how the nearly 20 years it has taken to get this far in the constitution making process is one of the longest in the world. 

We checked, and it is not just “one of the longest”, but the longest. Until 2008, the record was held by Burma (Myanmar), which took 17 years to get its constitution.


If Kenya’s constitution is adopted, it will represent the longest deliberations over a constitution in world history. However, it hasn’t had a continuous national convention for the past 20 years, unlike in Myanmar. Furthermore, rumor in Rangoon claims Maung Maung started drafting Burma’s current constitution all the way back in 1988 or so – essentially, 20 years before the referendum in 2008. So, the title for longest constitution-drafting process is not yet clear.

However, as the article points out, one thing is clear: Burma and Kenya both took a long time drafting their constitutions for extremely different reasons:

The common explanations for why Kenya’s constitution review has taken so long are, first, lack of political will and, second, because it has a querulous multiparty system that no single group has been able to totally dominate in recent years.

However, Burma doesn’t have such “problems”. First, Senior General Than Shwe and his fellow officers are running one of the most repressive regimes in the world.

It just goes to show that different paths can lead to similar superficial outcomes. On that note, Zachary Elkins and Tom Ginsburg have a new article out discussing how certain procedural variables affect constitution-drafting. In short, they find that public participation can influence the presence of rights in the draft constitution, but legislative participation does not lead to an increase in the legislature’s power under the constitution. You can download it here.
[Note: the comic is from the Daily Nation website. Kenya’s church is opposed to the constitution because it might relax restrictions on abortion.]

Comments Off on Constitution Drafting Round I: Burma v. Kenya

Filed under Burma, constitution, Myanmar

April 9, 2010 · 15:10

Burma’s election law and the least successful lawsuit in history

According to Irrawaddy, a couple of days ago, several National League for Democracy officials, including Nyan Win, Tin Oo and Aung Shwe, filed a lawsuit against Senior General Than Shwe in the Burmese Supreme Court. They complained that the SPDC had promulgated an “unjust and unfair” election law. The suit probably would have been dismissed had the court heard it. However, the Supreme Court simply handed the litigation documents back, saying it had no jurisdiction to handle the case.

First of all, “unjust and unfair” seems like an odd and unlikely basis for any lawsuit in Burma. Or elsewhere frankly. Unless the election law violates a superior law, there doesn’t seem to be any legal basis for dismissing the law. The “unjust and unfair” complaint seems more like a request for equity (or “justice” more broadly) than a request for a legal remedy.
Another issue is the election law itself. I haven’t commented on this, but I think a lot of the criticism is misguided. The main criticism of the election law is that it prohibits anybody with a criminal conviction (e.g., imprisoned) from running in the elections. This means that Suu Kyi, who is currently under house arrest, would be banned from running. I would obviously love for Suu Kyi and NLD to be able to contest the elections. However, at least as a legal requirement, this doesn’t seem so bizarre at all. Many countries prohibit felons from running or even voting in elections. In the U.S., prisoners and ex-cons lose other constitutional rights. In some sense, this makes sense – in most countries, somebody in prison probably committed a crime that makes then unqualified for public office.
As such, it seems to me the real issue in Burma isn’t the election law, but rather the broad scope of “crimes” under Burmese law. The State Protection Law is but one example of legislation (often from the colonial era) that is so broadly drafted as to allow the SPDC to criminalize almost anything. This is what allowed the SPDC to “criminalize” Suu Kyi’s “violation” of her house arrest last year. 
Of course, this problem goes beyond the election law. Many of the Fundamental Rights provisions in Burma’s 2008 Constitution allow the government to limit rights based upon “law.” The Constitutional Tribunal can enforce the constitution, but will probably defer to the governemnt on politically sensitive issues (for more, here’s an article I wrote for Irrawaddy). As long as Burma keeps its overly broad laws and expansive definitions of criminal activity on the books, there seems little room for civil and political rights under the new constitution.

Comments Off on Burma’s election law and the least successful lawsuit in history

Filed under Burma

February 27, 2010 · 17:57

Judgment Day

I’m back from Southeast Asia and almost caught up with work here. I have a few pictures from the trip here, here, and here.

As you probably heard, there were two exceedingly important court judgments yesterday coming out of Southeast Asia.

The first was the Burmese Supreme Court’s dismissal of Aung San Suu Kyi’s appeal. BBC has a short description of it. I haven’t seen much commentary on it and of course the dismissal was pretty much expected. However, there were interesting constitutional arguments made in the case. I am in the process of tracking down a copy of the decision, which I hope to have (and of course share) soon.

The more dramatic case was the Thai Supreme Court’s decision to seize a large part (around $1.4 billion) of former Prime Minister Thaksin’s assets. There have been several reports on the politics of the decision, which seem quite obvious (please yellow shirts, infuriate red shirts). However, the legal basis for the decision is also quite interesting. Via the New Mandala blog, it seems as if the court rested its decision on the grounds of “policy corruption.” The court’s economic analysis seems superficial (as is often the case with court decisions), but basically the claim is that Thaksin’s policies resulted in “abnormal gains” for companies that he still secretly controlled via his family members. Of course, in a country like Thailand,* where many politicians have links to business, this reasoning seems either hypocritical or untenable. It will be interesting to see whether this emerges as a new subset of administrative law, or simply a onetime tool to attack Thaksin.

* The legal charge of policy corruption could wreck havoc among Southeast Asian elites. One need not have an active imagination to think of how Golkar Chairman Aburizal Bakrie could be indicted on grounds of “policy corruption.”

Comments Off on Judgment Day

Filed under Burma, Thailand

January 27, 2010 · 14:35

Burma’s Unjust Courts

Continuing with my theme of courts as persecutors, there’s another article from Irrawaddy about courts in Burma. Here are a few highlights:

Aung Thein, a prominent Rangoon lawyer, told The Irrawaddy on Tuesday, “There is no clear rule about counting days under arrest in Burma. Sometimes, Burma courts consider the custodial period as starting from the commencement of the trial…

Thein Oo, chairman of the [Burma Lawyer’s Council], told The Irrawaddy on Tuesday, “There is no doubt that the Burmese judicial system has deteriorated.

Fellow lawyer Aung Thein, said, “In fact, legal rights have suffered. The Burmese courts cannot control the prosecutors. The courts should obey and respect legal procedures. There must be checks and balances between the executive and judiciary.”

Comments Off on Burma’s Unjust Courts

Filed under Burma, Myanmar

January 18, 2010 · 16:10

Burma’s Supreme Court hears final Suu Kyi appeal

Yesterday, Burma’s Supreme Court heard an appeal against Aung San Suu Kyi’s continued detention. I don’t think there’s any doubt over the outcome. In fact, it is fairly common for authoritarian regimes to permit courts to hear and dismiss the appeals of political dissidents. This allows them shift the blame for unpopular decisions onto judges, justifying political oppression as obedience to the rule of law. However, what I do find interesting is that both sides are using constitutional arguments, despite the fact that Burma hasn’t had a constitution since 1988. As described in the Irrawaddy, Suu Kyi’s lawyers claim the junta has based its prosecution on the defunct 1974 Constitution. The government’s lawyers claim that it can still cite laws based on the constitution because it was merely suspended, not abolished, in 1988. Unfortunately, most media reports about the case have not explained the legal arguments in enough detail to allow an objective assessment. Furthermore, with the new 2008 Constitution, the constitutional ramifications of the decision will soon become moot. Nonetheless, it will be interesting to see whether the Supreme Court decides the 1974 Constitution has in fact had some applicability throughout the SLORC/SPDC period. It might also provide a hint about how the courts will treat the new constitution (assuming some of the current Supreme Court justices move to the Constitutional Tribunal).

Comments Off on Burma’s Supreme Court hears final Suu Kyi appeal

Filed under Burma