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.

Thursday, February 6, 2014

Less than Expected (Myanmar/Burma)

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
This will be the Tribunal's first test after the August 2012 impeachment crisis, and it's a big one. Perhaps more importantly, it will give us an indication of how the current Tribunal members will rule. Will they stick to the more textualist/originalist interpretation of their predecessors? Will they defer to the legislature or find a way to stake out their independence?

Wednesday, February 5, 2014

Messing with elections (Indonesia)

Indonesia's Constitutional Court has done it again. A few weeks ago, the Mahkamah Konstitusi announced that it would require national legislative and presidential elections to be held simultaneously. The campaigning for the 2014 elections has already begun, so the decision will not go into effect until 2019 (Indonesia's elections take place every 5 years. However, critics, including elections lawyer Refly Harun, allege that the decision "could" have gone into effect for 2014 if the MK had released it earlier. According to The Jakarta Globe, the MK actually reached its decision last May.

At first glance, it might seem relatively innocuous - and perhaps even efficient - to hold elections concurrently. However, Indonesian presidential elections depend heavily on coalition formation because only parties that had won 20% of the DPR seats or 25% of the popular vote can nominate candidates (the MK allowed this requirement to stand). Most Indonesian political parties do not meet this requirement; after the 2009 elections, only the Democrats, GOLKAR, and PDI-P would qualify. Thus, many of the smaller parties would need to form coalitions to gain a seat in the administration, often by putting forward the vice-presidential candidates.

So the biggest remaining question seems to be how will the process of coalition formation change with the simultaneity requirement if they cannot form coalitions after having seen the DPR results? This might lead to parties forming coalitions based on previous election results and polling. Or, it could lead to parties taking greater account of ideology and policy platforms to form stronger policy-based identities before elections.

Friday, January 31, 2014


Brief Public Service Announcement: I have not posted longer articles in quite some time. I apologize, the academic semester has kept me busy. However, I am posting regular news articles on the Rule by Hukum Facebook page. So if you want a free clipping service about legal developments in Southeast Asia, check it out.

Monday, January 13, 2014

Judicial Corruption report in Myanmar (Myanmar/Burma)

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.

Tuesday, December 31, 2013

Untilting the Playing Field? (Myanmar/Burma)

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!

Tuesday, December 3, 2013

Glass half full or empty for lawyers? (Myanmar/Burma)

The International Commission of Jurists has released a new report about the state of the legal profession in Myanmar. The Irrawaddy provides a nice summary of the report and its key findings. I won't bother resummarizing the report here, but I do think it worth commenting on a few aspects.

Most of the challenges mentioned in the report are quite similar to those faced by lawyers under military rule (as discussed in Nic Cheesman's dissertation). In other words, recent political reforms have not necessarily changed the type of problems lawyers face, but has affected the degree to which those problems hinder the work of lawyers. For example, while ICJ still reports instances of government agents harassing human rights lawyers, lawyers do seem to agree that the room for them to operate has expanded considerably.

It is also interesting that reform of the Bar Council has emerged as a key demand. During the era of military rule, the Bar Council seemed to play a relatively minor role and evinced few complaints. Of course, this partly reflects the fact that lawyers can now openly advocate for institutional reform. However, even in private interviews, lawyers often expressed disappointment with the Bar Council or dismissed it as a tool of the government, but seldom pointed to it as one of the most important barriers the legal profession faced.

In a sense, I suspect the focus on the Bar Council reflects the legal profession's increased interest in mobilizing on behalf of causes. Aside from lawyers associated with the National League for Democracy and other political parties, the legal profession remained relatively unpoliticized before 2011. Few lawyers mobilized on behalf of cause lawyering. Since 2011, more lawyers have participated in legal aid clinics and have protested government legal aid policies. It seems lawyers view Bar Council reform as the next logical step in ensuring that they can mobilize without undue government influence.

Wednesday, November 27, 2013

School's no longer out in Burma (Myanmar/Burma)

I served my time in law school and have no desire to return, yet the news that Yangon University will accept 50 new undergraduate law students - the first cohort since 1996 - on December 2* is perhaps the best news I have heard from the country in many months. Previously, the university only offered law degrees through distance learning programs at satellite campuses (see Myint Zan's 2008 article for a more detailed discussion of the problems with the legal education system). According to The Irrawaddy, Johns Hopkins University, Australian National University, and Dulles University are involved in assisting Yangon University as it revises its curriculum.

The last law curriculum I saw had a heavy emphasis on theory rather than practical skills. It was particularly puzzling to see international and comparative law on the syllabus (presumably because the military viewed those courses as politically innocuous). With the renewal of on-campus classes and continuing legal education (CLE) programs established by BABSEA, Myanmar's legal education system might finally be starting the long road towards providing law students with the skills the need to thrive in an increasingly dynamic legal system.

* Coincidence that this is also my birthday? I think not.

Friday, November 22, 2013

5th Amendment Rights in China? (China)

Yes, I realize that China is not located within Southeast Asia. It is not and never will be a member of ASEAN. Nonetheless, the Chinese Supreme People's Court's recent actions might be of interest to students of judicial politics in Southeast Asia.

According to Reuters, he SPC has ruled that the use of torture to extract confessions is illegal. Interestingly, the SPC expanded the definition of torture to "the use of cold, hunger, drying, scorching, fatigue and other illegal methods" (Bush administration lawyers deemed that several of these methods did not to constitute torture).

On the one hand, the announcement is potentially revolutionary. Chinese police and courts have accepted confessions extracted through torture for millennia (the famous Judge Dee stories from the Tang Dynasty include several graphic torture scenes). On the other hand, as Reuters notes, there is likely to be resistance to the SPC's announcement, especially from the state security system.

The announcement also raises questions about the SPC's role in China's legal system. The Court seemed to have a brief Marbury v. Madison moment in 2001 when it seemed to find a constitutional right to education (presumably making China's 1982 Constitution enforceable). However, that decision also proved to be the last time the SPC interpreted the constitution. In 2010, the SPC officially withdrew the decision, presumably meaning it is no longer legally valid.

While I cannot claim to be an expert in Chinese law or politics, from what I understand the SPC's current decision regarding torture is not an attempt to return to the activism of its 2001 decision, but rather represents a deliberate choice to focus reforming the system under its control. While the SPC might face resistance, judges do have the final word on accepting illegally obtained evidence, and hence share the blame for convictions obtained through illegal confessions. I suspect at the very least we will see more defendants claiming that their confessions were obtained through torture in the hopes that the judiciary will now act on their claims.

Tuesday, November 19, 2013

Bad apple or rotten core? (Indonesia)

In the wake of last week's mob attack on the Indonesian Constitutional Court (MK), some politicians are taking the opportunity to remind the court about its legitimacy problems. According to Viva News, DPR representative Eva Sundari (PDI-P) has called on all eight justices to resign:
New justices should be elected: Those who do not share the sin of Akil Mochtar for endorsing his unaccountable rulings. (translation from The Jakarta Post)
Such calls raise an important question: was Akil Mochtar simply a bad apple or a sign of deeper problems with the MK as an institution? Is there a need to start anew with a clean slate?

First, some context. Corruption happens. It's impossible to prevent all public officials from engaging in corruption all the time. Just last year, in the neighboring Philippines, Chief Justice Renato Corona was impeached and convicted on a variety of corruption allegations. Even the U.S. Supreme Court has not been immune to corruption. In 1969, Justice Abe Fortas resigned amid allegations that he accepted a large sum of money from a financier who was under government investigation. 

More importantly, there were plenty of signs even before October 2013 that Akil Mochtar's appointment might embroil the MK in ethical problems. Back in 2006, Indonesian Corruption Watch alleged that Akil had taken money while serving on a government commission for redistricting. Several NGOs openly opposed his appointment to the MK in 2008 pointing to past allegations of corruption. In 2010, elections lawyer Refly Harun famously accused Akil Mochtar of having received money from a candidate in a North Sumatra regency election (an internal investigation held that there was insufficient evidence to discipline Akil). 

None of this is to say that the MK can afford to be complacent. There is a very active and productive debate currently ongoing in Indonesia about enforcing ethics in the MK. However, that debate is largely taking place amongst lawyers, NGOs, politicians, and the rest of the Jakarta elite. To many Indonesians, there is a real risk that the Akil Mochtar scandal is their first and most enduring impression of the court. They have no reason to believe that Akil's corruption did not taint the rest of the court. The MK does need to find a way to rebuild its credibility. If the MK attempts a "business as usual" approach, it might well face increased calls for wholesale reform.