Category Archives: Myanmar

April 20, 2012 · 13:21

Don’t swear in public (Myanmar/Burma)

The latest legal controversy in Myanmar has focused around the 2008 Constitution’s requirement that allow Hluttaw MPs swear an oath promising to “protect” the constitution. The NLD, which has publicly stated it intends to push for constitutional amendments, has balked at the prospect. Its members are even threatening to boycott the opening session of parliament.

NLD representatives met with the Constitutional Tribunal asking for a change in the wording of the constitution. It’s not clear whether it will. According to Irrawaddy, NLD Spokesman Nyan Win has so far only said, “[the court] did not say that they will not change” the wording of the oath. The court is not expected to act quickly on the request. However, if the government wants a face-saving way of avoiding a confrontation, the court could “reinterpret” the oath as allowing MPs to swear to “respect” rather than “protect” the constitution.
Two things about this incident strike me as curious:
First, the official English-language translation of  Schedule Four of the Constitution reads:

I ……………. do solemnly and sincerely promise that as an elected representative of the Pyithu Hluttaw/ the Amyotha Hluttaw/ the Region or State Hluttaw, I will uphold  and abide by the Constitution of the Union. I will be loyal to the Republic of the Union of Myanmar and citizenry and hold always in esteem non-disintegration of the Union, non-disintegration of national solidarity and perpetuation of sovereignty. In addition, I will carry out the responsibilities uprightly to the best of my ability.

 The highlighted section does not read that MPs must swear to protect the constitution. However, my Burmese isn’t quite good enough to appreciate the full connotations of the original Burmese word. Still, I’m wondering where the NLD is getting its translation from.

Second, to my knowledge, this is the first time somebody outside of government has petitioned the Constitutional Tribunal for constitutional review. The fact that the NLD can even approach the court is significant. The constitution grants direct standing to various government officials, but generally other cases must be forwarded by the general courts before the Constitutional Tribunal will hear them. Even if the NLD members were MPs – which they are not yet – petitions from MPs still need the support of 10% of one of the chambers. It seems however that the NLD is getting expedited and informal access to the tribunal.

I’m not quite sure how this is being justified or whether we should expect to see the court engage in more of this sort of informal consultation in the future. However, if things turn out well for the government, this might open the door to more use of the Constitutional Tribunal as a way to diffuse opposition complaints.

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April 18, 2012 · 04:18

Reject and Evict

With all of the celebrations over the NLD’s electoral victory, we get yet another reminder of the struggles Myanmar faces on the rule of law front. The Naypyitaw District Court rejected a petition filed by six residents who were sentenced to three months hard labor for refusing to leave their property after the Naypyitaw Development Committee ordered them to leave. According to DVB, the NDC allegedly plans to establish a gemstone enterprise in the area. The villagers already plan to appeal to the division-level court.

Unfortunately, these are exactly the sorts of conflicts that have come in the wake of economic development throughout Asia. In fact, these sorts of problems might prove even more intractable than the larger political stalemate, which seems to be easing. There really are only a few ways to resolve this tension. First would be to make the government more dependent upon its citizens (i.e., democratic) so officials have an electoral incentive not to seize assets. Second, convince government officials that protecting property rights and encouraging efficient investment in the land is more beneficial over the long-term than the short-term gains from seizure. Sadly, if history in Burma is any guide, elites often have very short time horizons regarding exhaustible natural resources such as gemstones.

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Filed under Burma, land, Myanmar

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 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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