Category Archives: Burma

December 2, 2009 · 20:01

Literature Review: Burma had the first lawyers in Asia?!?

Citation: Myint Zan, Woe Unto Ye Lawyers: Three Royal Orders Concerning Pleaders in Early 17th Century Burma, 44 The American Journal of Legal History 40-72 (Apr. 2002)

Today, we think of the Burmese legal system as, if anything, a farce. Andrew Huxley, Buddhist law historian at SOAS, famously claimed that since 1988 the military has delegalized the entire system. Lawyers and judges are widely considered corrupt or incompetent. Yet, it was not always so. Before British colonialism, the Burmese empire had one of the most advanced legal systems in Asia.
Given our stereotypes about Burma (and Asia more widely), it might be surprising that lawyers played an important role in pre-colonial Burmese society. According to Huxley, Burma was “the only country between Japan and the Middle East to develop a legal profession independently of European influence.” Historians differ over when the first Burmese lawyers – the shay-nay – began their practice. Burmese Buddhist legal mythology (yes, there is such a thing) places lawyers way back in the 5th century B.C. Some Burmese historians, such as Dr. Maung Maung, claim lawyers existed even during the Pagan era. However, scholars place the latest date for the development of lawyers at 1550.
According to Myint Zan’s article, lawyers had become such a pest that the government had to regulate them. In 1607, King Anauk Hpet Lun (1606-28) issued three edicts regulating the legal profession.

1) Royal Order A

The first order prescribes a code of dress for the shay-nay: a conical hat, cloth-sling bag, carrying cup, and fan. It regulates attorneys fees to 37.5 ticals of copper. Perhaps most interesting, the order prohibits lawyers from living within the royal city walls because – I love this – “shay-nay could not help themselves from breaching the Buddhist precept against telling untruths on a daily basis.” Yes, in 1607 the Burmese king did not want lawyers to sully his court because they lie too often!

The Burmese people criticized lawyers as habitual liars long before the rest of Asia even had lawyers – and hundreds of years before the rise of ambulance chasers in America. Burma accumulated quite a repertoire of lawyer jokes. One of my favorites: “the tongue of a lawyer would not burn even in the fires of hell.”

2) Royal Order B

King Anauk Hpet Lun issued another edict regulating oral advocacy in the courtroom. The edict lists the 10 permissible styles of argumentation. This list isn’t simply about roadmapping your legal argument. They 10 styles include exotic techniques such as “duck and weave as though running away from an elephant” and “a cock’s retreat and attack.” I never studied anything like this on for the Federal Rules of Civil Procedure! Fortunately, Myint Zan provides wonderful explanations for each. For example, “duck and weave as though running away from an elephant” means evasive speech (i.e., evading an elephant). A “cock’s retreat and attack” is somewhat similar to our expression of letting somebody “hang himself with his own noose.” In the U.S., the closest equivalent might be the Model Rules of Professional Conduct or the Federal Rules of Evidence, which govern attorneys’ conduct during litigation.

3) Royal Order C

This order is both the most complex and interesting edict. It governs judicial procedure and judicial conduct. Under the edict, judges are supposed to interrogate both sides of a dispute, somewhat like the inquisitorial system in civil law countries. The judge’s role was to listen to all the testimony, weigh both sides, and discern the truth. Myint Zan also argues that the edict gives judges some discretion to interpret Buddhist law to fit the contemporary context of the dispute in the case. This has been interpreted by some scholars as the stirrings of judicial independence.

The article is an excellent piece of historical legal scholarship. The edicts employ colorful similes and examples. Myint Zan does a great job navigating the Western reader through these cultural nuances. Sadly, the British uprooted much of Burma’s legal tradition after 1886. However, scholarship like Myint Zan’s will hopefully help the Burmese legal profession regain a sense of professional pride and independence that it so desperately needs.

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November 5, 2009 · 14:10

Above the Law in Burma

My article on Burma’s constitution, Above the Law, was just published in The Irrawaddy. I published it under a nom de guerre (that sounds so much better than pseudonym) because I do hope to return to Burma at some point. However, I doubt Burmese military intelligence reads Rule by Hukum, so I think it’s alright to cross-post here.

The article was actually intended to be a brief synthesis of the longer law review article I am currently working on. I hope to finish a draft by February 2010, when I will present the paper at the Inaugural East Asian Law and Society Conference in Hong Kong.
Like this brief op-ed, my longer* article will apply political science theories about courts and constitutions to the 2008 Burmese constitution. One interesting possibility that I discuss in both articles is that the National Convention adopted a Constitutional Tribunal to serve as an additional veto player, blocking any state or hluttaw initiatives that might threaten the military’s interests. This could become particularly important because the new constitution adopts a quasi-federal structure, so it will be more difficult for the military to manage political elites than it has been in the strictly hierarchical army.

Thanks to Htet Aung and the rest of the Irrawaddy editorial team for working with me on the article. I also love Harn Lay’s graphic for the piece. Make sure to check it out here.

* The operative word being longer. I already have 10 pages written about Burmese legal history, but that only brings it up to independence in 1947.

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October 7, 2009 · 03:51

Book Review: Dr. Maung Maung: Gentleman, Scholar, Patriot

Dr. Maung Maung was perhaps the most important person in Burmese history you’ve never heard of. For a time, he was Burma’s preeminent lawyer, scholar, judge, attorney general, constitutional drafter, and, briefly, president. Robert Taylor, a longtime scholar of Burmese politics, has produced a very useful compilation of Dr. Maung Maung’s writings. Most of these date from the 1950s and provide useful insights into Dr. Maung Maung’s thinking back then. However, some of the articles are themselves interesting pieces of scholarship. After a brief introductory biography of Dr. Maung Maung, Taylor divides his writings into several parts:

  1. Approach to life; 
  2. Biographical sketches of famous Burmese leaders; 
  3. Foreign and domestic travels; 
  4. Burmese army (tatmadaw); 
  5. Constitution of 1947; and 
  6. Papers from Dr. Maung Maung’s presidency in 1988. 
These essays are overall scholarly and intelligent, yet also very easy to read. Dr. Maung Maung comes across as sincere and passionate about Burmese democracy and its constitution. Given subsequent events, sometimes he seems too optimistic. 
The biographical sketches are not only of the famous post-independence leaders such as Aung San and Ne Win, but also of lesser-known figures, such as judges and soldiers. He is generally sympathetic towards his subjects, but the essays aren’t hagiographies. The essays were written during the 1950s, so they don’t necessarily reflect the latest details of each person’s life. As such, it would have been useful if Taylor had written a brief note after Dr. Maung Maung’s essays explaining what happened in each person’s life after the essay was first published. However, there hasn’t been much scholarship on the less famous personages, such as the Burmese judges, so some of these essays may be the only biographies we have in the English language. For that fact alone, this book is invaluable. 
The articles Taylor includes on Burma’s 1947 Constitution aren’t nearly as in-depth or scholarly as Dr. Maung Maung’s magnificent Burma’s Constitution. Also, the articles Taylor chose to include become a bit repetitive – almost like a cheerleading squad for the constitution. Nonetheless, they provide insightful observations about both the man and the document. The articles in the compilation begin in the late 1940s and end right before the 1962 coup, allowing the reader to trace subtle shifts in Dr. Maung Maung’s attitude toward the constitution and politics. At the beginning, he is full of praise. By the end, he sounds more defensive, justifying Ne Win’s caretaker administration and the lack of political stability. Indeed, by the late 1950s, he calls the constitution a “cut-and-paste” job (mostly from Ireland and Yugoslavia) – something he would never have admitted earlier. In fact, the articles are taken from speeches and op-eds he wrote to reassure the public that the 1947 constitution still had meaning. His second thoughts on the constitution, combined with his evident disgust with Burma’s politicians, perhaps help explain his decision to join the Ne Win government after the 1962 coup. 
I was disappointed that, except for the brief chapter on Dr. Maung Maung’s presidency, the book seems to end in 1962. Almost all of the essays and articles included in the compilation are from the 1950s. Of course, to a large extent, that is when Dr. Maung Maung did most of his writing, before he joined the bench. Yet, Taylor alludes to several opinions written by Dr. Maung Maung while he was on the bench in the 1960s. Unfortunately for the reader, rather than including these precious texts, Taylor concludes “It would take another book and detailed knowledge of Myanmar’s legal traditions to undertake a study of Dr. Maung Maung’s judicial decisions during the 1960s.” I do hope somebody writes that book soon.
Dr. Maung Maung remains a very controversial figure among Burma scholars. One prominent American scholar I know criticizes Dr. Maung Maung for “whoring” himself out to General Ne Win. Whatever your views on Dr. Maung Maung, he was the country’s foremost legal academic in post-independence Burma. It’s certainly worth reading through some of his articles and trying to understand the man a bit better.

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October 6, 2009 · 20:02

Book Review: Maung Maung’s Burmese Constitution

Citation: Maung Maung, Burma’s Constitution (1962)

Last year, Burma adopted a new constitution, one which critics claim will keep the military in power for decades to come. This is the first constitution since the prodemocracy protests in 1988. However, once upon a time, Burma’s constitution was taken seriously and actually allowed for the stirrings of the rule of law. The country’s 1947 Constitution is often, if simplistically, viewed as a sort of golden age for Burmese constitutionalism. Dr. Maung Maung’s Burma’s Constitution, already almost 50 years old, is still the only comprehensive piece of legal scholarship we have of this constitution, and thus is an important book for any Burma scholar or student of Asian law.
Dr. Maung Maung wrote this book before, in the words of one Burma scholar, he “whored” himself to General Ne Win. Thus, in this book he is full of enthusiasm for Burma’s nascent democracy and the 1947 Constitution. He goes to great lengths to demonstrate that the constitution embodied liberal democratic norms. He approvingly cites the Supreme Court in proclaiming that the constitution should be interpreted in a “liberal and comprehensive spirit.” Given Dr. Maung Maung’s later historical importance, this book provides an interesting, and perhaps unfiltered, insight into his thoughts.

The first 90 pages of Burma’s Constitution summarizes Burma’s colonial history and the nationalist movements. Dr. Maung Maung goes into more detail than most modern histories of Burma and provides some interesting nuance lost in later accounts. If you are familiar with Burmese history, this section may be superfluous. Nonetheless, it provides context for the rest of the book.
The second half of the book is the real meat of Burma’s Constitution. Each chapter is organized by subject, with particular attention paid to the executive, legislature, judiciary, and ethnic minority sections of the 1947 Constitution. Dr. Maung Maung discusses the constitution in detail, not only summarizing the text but describing the debates during the drafting and mentioning any relevant Supreme Court opinions. As a keen political observer, he describes the negotiations and dealmaking that resulted in the constitutional compromises embodied in the 1947 document. For example, it is fascinating to see the reasoning behind the Constituent Assembly’s rejection of a full federal system. Apparently, Attorney General Chan Htoo, a respected lawyer, expressed his concern that a federal government would require more personnel and funds than the country could afford. That decision may have had disastrous consequences and contributed to the tensions between Burmans and ethnic minorities.
As one might expect given his legal background, Dr. Maung Maung’s analysis of the judiciary is quite insightful. He cites several cases in which the Supreme Court struck down the president’s actions or freed a person who had been illegally detained. His pride in the court shines through the pages. However, he also comments on the court’s institutional strengths and weaknesses. In particular, I found it interesting that Supreme Court justices were considered a part of Burma’s political elite and often represented the country on international missions. By contrast, Indonesia’s judges were maligned or scorned since that country’s independence. Unfortunately, Burma’s courts have moved in the direction of Indonesia’s rather than the other way around.
While Thant Myint-U is correct that the 1950s weren’t a mythical golden age, the 1947 is nonetheless a fascinating document. Dr. Maung Maung had the peculiar misfortune to write this in-depth treatise right as General Ne Win launched his coup in 1962, making it immediately obsolete. Despite that technicality, Burma’s Constitution still has much historical value. This is an outdated, but not obsolete book. It shows what Burma’s legal system was, and could have been, during a unique point in its history.
With that said, I was disappointed that Maung Maung didn’t take the opportunity in Burma’s Constitution to discuss the 1947 Constituent Assembly and Constitution Committee in more detail. He recounts a few relevant anecdotes in each chapter, but never really explains the entire process. Since Maung Maung’s book, already 50 years old, very little has been written about Burmese constitutions. Maung Maung had unique access and insights into the drafters of the 1947 Constitution and could probably have told the story in a way that is impossible now. It is, and will likely remain, a lost opportunity.
This book is worth reading solely for its historical value, but it also provides insights into Burma’s 2008 Constitution. Before his death in 1994, Dr. Maung Maung was allegedly deeply involved with drafting the National Convention’s Basic Principles. Not surprisingly, the 2008 Constitution shares several features with the 1947 Constitution – a bicameral legislature, quasi-federal structure, list of qualifications for officeholders, to name a few. I also noticed that the 1947 Constitution gives the president the right to ask the Supreme Court to review the constitutionality of laws passed in the ethnic minority states – the very same power given to the Constitutional Tribunal under the new constitution. Obviously, the military’s 2008 Constitution is a very different animal, but the amount of similarity is instructive. I am anxious to see whether the Constitutional Tribunal will use case law developed during the 1950s, or start anew.
The appendices of Burma’s Constitution contains a copy of the 1947 Constitution, as well as several amendments and related laws.
Robert Taylor has recently compiled some of Maung Maung’s other writings on the constitution in Dr Maung Maung: Gentleman, Scholar, Patriot. It’s an expensive volume, but, like Burma’s Constitution, a unique kind book full of primary documents.
Maung Maung also wrote Law and custom in Burma and the Burmese Family and A Trial in Burma, which are interesting but probably not as critical to understanding Burma as Burma’s Constitution.

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September 29, 2009 · 11:11

Literature Review: Constitution-Drafting among Burma’s Democracy Movement

Citation: David C. Williams, Lessons of Experience in the Enterprise of Constitutional Design: Constitutionalism Before Constitutions: Burma’s Struggle to Build a New Order, 87 Tex. L. Rev. 1657 (June 2009)

I’ve been reading quite a bit recently about the various Burmese constitutions (1947, 1974, and 2008). However, I almost missed the democracy movement’s alternative constitution-drafting process. David C. Williams, Professor at Indiana University’s Maurer School of Law and head of the Center for Constitutional Democracy, has been working with ethnic minority groups and pro-democracy leaders for over a decade in order to help them draft alternative constitutions. As anybody who follows Burma knows, the Burmese military would never accept such documents. Indeed, as Williams acknowledges, these “constitutions” will never become legally binding documents. So why should Burmese politicians go through such constitutional exercises?
According to Williams, there have been four distinct phases in the Burmese democratic opposition’s constitutionalism. In the early 1990s, the National Coalition of the Union of Burma drafted a national, democratic constitution. However, many of the ethnic minority groups saw this draft as too Burman (as well as dominated by the Burma Lawyer’s Council). After this debacle, several groups began to draft their own state constitutions (which is when Williams and the CCD began their involvement). These ventures have varied widely in both form and substance, but have generally included some form of popular consultation and transparency.

The third phase involved an attempt to create one unified, national constitution. The democracy groups formed the Federal Constitution Drafting and Coordinating Committee to complete the task. Unfortunately, the FCDCC’s final product did not please its constituents. In particular, many thought the draft did not protect state governments nearly enough. Others simply thought it inconsistent and vague. As such, the groups are currently planning on holding “constitutional convention” this year in order to amend, alter, and rewrite the FCDCC draft into a more acceptable version.

Again, the question: why spend so much time and effort to write a constitution that will never become binding law? Williams provides some interesting observations based on his experience with the Burmese democracy movement. First, few Burmese have any experience with constitutions. While Burma was the first country in Asia to have a legal profession, today political elites in both the government and democracy movement lack the legal expertise necessary to draft a workable constitution. Indeed, the country hasn’t even had a constitution for the past 20 years. Simply going through the exercise of writing a constitution has helped democracy leaders understand the process and learn the skills of constitution-making.
Perhaps more importantly, Williams recognizes that Burma’s current problems stem from deep constitutional disagreements, particularly federalism and the status of ethnic minorities. He argues Burma’s future leaders must begin to think about these issues now rather than let them explode when the military junta does fall. In fact, because none of the political elites involved have a stake in governing under the constitution, they can focus more on constitutional ideas and design than on maximizing political power. It is unlikely any future democratic government would adopt the result of this process wholesale, but at least the leaders writing it will have thought seriously about constitutional issues.
Finally, these constitution-drafting exercises can help build trust among political elites. Whereas before, Williams describes ethnic minorities as hostile toward Burman constitutional proposals, and vice versa, the two sides have begun to envision a common future under a single constitution. Some of the participants decided they no longer needed extraordinary constitutional measures, such as the right of secession, in order to remain part of Burma. For example, all of the state constitutions had originally adopted an ethnically-based definition of citizenship. However, as the drafting process went on, they adopted a more neutral definition and guarantee all ethnic groups equal rights. Williams tells one moving story of how the Chin, having gone through these exercises, decided to no longer insist upon independence. If successful, this aspect of the project alone would reap huge benefits for a democratic Burma in the future.
As I’ve lamented before, the development community has not given enough attention or assistance to strengthening Burma’s legal capacity. Burmese students who study abroad often go into economics, development studies, political activism – but seldom law. Meanwhile, I know of no rule of law or legal-assistance programs in Burma to advise the government (although China has occasionally provided assistance on individual laws). This is a major problem precisely because so many of Burma’s development problems stem from the 50-year constitutional crisis. The country needs constitutional lawyers. In that light, I was delighted to read more about Professor Williams and CCD’s work training Burmese leaders. It definitely sounds like a worthwhile and important endeavor.
Having said that, I am a bit concerned that this alternative constitution-drafting exercise may reinforce the reluctance of the democratic opposition to participate in the government emerges from the 2010 elections. While the 2008 Constitution is many, many flaws (as I hope to detail in a later post), right now it is the only game in town. As the International Crisis Group notes, there may well be room under the new constitution for the opposition to make slight gains, particularly in influencing Hluttaw debate and blocking certain measures. Furthermore, even under any democratic government, democratic leaders will need to work with the military. I worry that too much of a focus on alternative constitutions may inflame the military’s chronic distrust of the ethnic minority groups and democracy in general. These fears might be overblown (I seriously doubt Than Shwe sits in Naypyidaw fretting over the Chin Constitution), but nonetheless I think we do have to remind ourselves that the 2008 Constitution is probably here to stay.
Hopefully, the CCD’s constitution-drafting exercises will help prepare Burma for a time when the Burmese people can chose their own constitution. Burma would really benefit if the next constituent assembly includes members who already have experience in constitution-drafting. But in the meantime, I hope somebody develops a program to educate political elites and lawyers within the country about constitutional law.

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