Wednesday, July 16, 2014

PRL&PJ Article about Constitutional Tribunal

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!

Tuesday, June 24, 2014

Myanmar's Marbury v. Madison? (Myanmar/Burma)

A few weeks ago, I mentioned news about Daw Kyin Htay's attempt to use a constitutional writ to challenge her dismissal from the University of Yangon faculty. Here's a brief follow-up.


Daw Kyin Htay filed a petition for writ of mandamus under § 377 of the Constitution. This explains how the Supreme Court had jurisdiction in the first place, even though the Constitutional Tribunal has exclusive jurisdiction over constitutional issues. 

Earlier this month, the Supreme Court decided the case in Daw Kyin Htay's favor, striking down the Ministry of Education's order (see the official order here). The Myanmar Times has an article discussing the outcome here.

Daw Kyin Htay's lawyer claims this is the first Supreme Court case to overrule a decision by a Union minister, which is significant. However, before we all start calling this Myanmar's Marbury vs. Madison, it is worth recalling China's Qi Yuling case from 2001, in which China's Supreme People's Court found a constitutional right to education. A flurry of law review articles proclaimed that China's Marbury vs. Madison moment had arrived, but there was little follow-up and in December 2008 the Supreme People's Court withdrew the opinion.

I will be interested in reading the Supreme Court's decision when it comes out in order to understand the legal reasoning in the case. I'm still a bit unclear as to the constitutional right in question here (it seems to be a sort of due process claim under § 375 of the 2008 Constitution). In any case, a fascinating development.

Wednesday, June 18, 2014

More fallout from Akil Mochtar (Indonesia)

According to The Jakarta Post, there is more fallout from the Akil Mochtar scandal late last year. This time, allegations have arisen that KPK Deputy Chair Bambang Widjojanto asked Akil Mochtar for help getting appointed to the KPK. Read the whole article here.

Sunday, June 8, 2014

Is Constitutional Review Moving to a New Home? (Myanmar/Burma)

Late last year, Myanmar's legislature initiated a process to review and amend the 2008 Constitution. Until recently, the largest opposition party, National League for Democracy, seemed focused on removing the ban against citizens with foreign dependents from becoming president (NLD leader Aung San Suu Kyi's two sons are British nationals). However, last month, the NLD released more detailed proposals on its website, including an amendment to abolish the Constitutional Tribunal and transfer its powers to the Supreme Court.

Saturday, May 31, 2014

Partisan Oaths (Thailand)

New Mandala published a pretty damning article claiming that Thailand has become a juristocracy. I disagree on the extent and uniformity of the partisanship (see my 2010 New Mandala piece for my thoughts), but I think Eugenie provides an interesting point on the importance of the judicial oath of office and how it differs from oath for other important political officials.

Thursday, May 29, 2014

Mahfud supports Prabowo-Hatta (Indonesia)

Former Indonesian Constitutional Court Chief Justice Mahfud MD has agreed to head the executive board of the Prabowo-Hatta presidential campaign. The Jakarta Globe has more details about his role and other advisors in the presidential campaigns.

Thursday, May 8, 2014

Allen & Overy in Myanmar

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

Wednesday, May 7, 2014

Foreign Policy on Thai Constitutional Court

Jake Scobey at Foreign Policy interviewed me on May 7, 2014, to discuss the recent constitutional crisis in Thailand. It's a useful summary of the Thai Constitutional Court's role in recent Thai politics. For the record, I'm a bit more sanguine about the Court and even noted in my article that pre-2006 the Court had a reputation for leaning towards Thaksin. However, I believe the article is correct in its concern that the Thai constitutional system has too many checks and not enough balance between the branches of government.

Tuesday, April 29, 2014

First constitutional rights claim in Myanmar/Burma?

According to The Myanmar Times,  Daw Kyi Htay, professor and head of the Department of Economics at Yangon Distance University, is challenging her dismissal before the Myanmar Supreme Court. What makes the case so interesting is that she claims her dismissal was unconstitutional. Under § 41 of the Civil Servants Law, the Ministry of Education has the right to dismiss teachers without a formal enquiry. Daw Kyi Htay claims this violates the constitutional “right of defence in accord with the law” (§ 375).

Two points stick out to me. First, the case was filed at the Supreme Court, not referred to the Constitutional Tribunal. It's not immediately clear to me how the Court has jurisdiction over the case, unless Daw Kyi Htay is using a constitutional writ (the Supreme Court has original jurisdiction over writs). Either way, this is the first constitutional petition I have heard of filed by a citizen and not a government body.

Second, Daw Kyi Htay is making a fairly novel legal claim. On its face, § 375 of the 2008 Constitution seems to refer to criminal trials (especially because the right applies to an "accused"). However, this claim is not without precedent; it resembles the substantive due process claims popular in the United States during the 1970s that government workers had a property interest in their jobs and could not be dismissed without formal proceedings.

It will be interesting to see how this case turns out, especially if the Supreme Court does end up interpreting the Constitution (or referring the case to the Tribunal). If Daw Kyi Htay wins, it could also set a power precedent and lead to more constitutional rights litigation.

Friday, March 7, 2014

Miles to go to rule of law (Myanmar/Burma)

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.