tag:blogger.com,1999:blog-36916574496816595002024-03-12T21:22:19.560-04:00Rule by Hukum: Law in Southeast AsiaCritics agree that much of Southeast Asia desperately needs judicial reform and rule of law. Yet, there is remarkably little comparative scholarship on law and legal institutions in the region. In this blog, I'll follow constitutional developments in Brunei, Burma (Myanmar), Cambodia, East Timor, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam, as well as the Association of Southeast Asian Nations (ASEAN).Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.comBlogger412125tag:blogger.com,1999:blog-3691657449681659500.post-20726494841240425372014-08-01T14:04:00.002-04:002014-08-01T14:04:46.303-04:00Off to Naypyitaw on a Fulbright-Clinton Fellowship...You have probably noticed that I have not updated the blog recently. I recently found out that I've been selected for a Fulbright-Clinton Fellowship in Myanmar (Burma) and will be working at the Myanmar Parliamentary Resource Center for about 10 months. So I've been busy moving out of my current apartment, putting it up for rent, etc. So stay tuned to this blog because once I arrive in Myanmar I will definitely start blogging about my experiences there...Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com2tag:blogger.com,1999:blog-3691657449681659500.post-1938960602553632752014-07-16T21:46:00.001-04:002014-07-16T21:46:30.975-04:00PRL&PJ Article about Constitutional TribunalHere's an <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407587">article</a> 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 <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407587">here</a>. Enjoy!Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-57690729346625405122014-06-24T13:38:00.002-04:002014-06-24T13:38:40.737-04:00Myanmar's Marbury v. Madison? (Myanmar/Burma)<a href="http://rulebyhukum.blogspot.com/2014/04/first-constitutional-rights-claim-in.html"> A few weeks ago</a>, 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.<br /><br /><br />Daw Kyin Htay filed a petition for writ of <i>mandamus</i> 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. <div>
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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 <a href="http://www.unionsupremecourt.gov.mm/sites/default/files/supreme/9-6-2014_civil_orders.pdf">here</a>). <i>The Myanmar Times</i> has an article discussing the outcome <a href="http://www.mmtimes.com/index.php/national-news/10694-university-teacher-wins-supreme-court-battle-over-dismissal.html">here</a>.<br /><br />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 <i>Marbury vs. Madison</i>, it is worth recalling China's <i>Qi Yuling</i> 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 <i>Marbury vs. Madison</i> moment had arrived, but there was little follow-up and in December 2008 the Supreme People's Court <a href="http://www.jamestown.org/programs/chinabrief/single/?tx_ttnews%5Btt_news%5D=34791&tx_ttnews%5BbackPid%5D=414&no_cache=1#.U6m1vhY6oSM">withdrew the opinion</a>.<br /> <br /> 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.</div>
Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-4122959334646219122014-06-18T18:06:00.003-04:002014-06-18T18:07:26.921-04:00More fallout from Akil Mochtar (Indonesia)According to <i><a href="http://www.thejakartaglobe.com/news/bambang-widjojanto-denies-getting-akils-help-securing-kpk-post/">The Jakarta Post</a></i>, 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 <a href="http://www.thejakartaglobe.com/news/bambang-widjojanto-denies-getting-akils-help-securing-kpk-post/">here</a>.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-58588264613908519482014-06-08T23:09:00.000-04:002014-06-08T23:09:45.724-04:00Is 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 <a href="http://www.nldburma.org/">website</a>, including an amendment to abolish the Constitutional Tribunal and transfer its powers to the Supreme Court.<br />
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Currently, the Tribunal has exclusive jurisdiction over constitutional petitions in Myanmar, although standing is limited to select government officials. The Tribunal has nine members, three selected by the president, upper chamber of the legislature, and the lower chamber. The members serve for a five-year term. However, as I recounted <a href="http://www.iconnectblog.com/2012/10/will-democracy-and-constitutionalism-mix-in-myanmar/">here</a>, in August 2012 the legislature - with the support of the NLD MPs - impeached the members for issuing a decision that reduced the status of legislative committees. All nine members resigned a week later.</div>
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At the time, many MPs had argued that the Tribunal had infringed on the legislature's lawmaking authority. Although the government appointed <a href="http://www.rfa.org/english/news/myanmar/constitutional-tribunal-02212013175458.html">nine new members</a> in February 2013, the Tribunal has not received any petitions since. The Tribunal recently relaunched its <a href="http://www.myanmarconstitutionaltribunal.org.mm/en/books">website</a>, but its most recent decision was issued in July 2012 - a month before the impeachment saga. According to <i><a href="http://www.mmtimes.com/index.php/national-news/9400-president-to-test-new-constitutional-tribunal-with-eight-laws.html">The Myanmar Times</a></i>, earlier this year, President Thein Sein considered asking the Tribunal to assess the constitutionality of eight new laws, but apparently his advisors worried that the Tribunal would not rule against the legislature. </div>
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Ironically, the Supreme Court has become increasingly involved in constitutional disputes. Under the Constitution, the Supreme Court has original jurisdiction to hear petitions for writs. <span style="font-family: 'Times New Roman'; font-size: 12pt;">Between </span><span style="font-family: 'Times New Roman'; font-size: 12pt;">March 31, 2011, and June
30, 2013, the Supreme Court received 432
petitions for writs. </span><a href="http://www.mmtimes.com/index.php/national-news/10183-teacher-takes-fight-to-supreme-court.html">In April</a>, the Court agreed to hear a petition from Professor Kyi Htay, challenging her dismissal from the Department of Economics at Yangon Distance University. Daw Kyi Htay argues that the <i>Civil Servants Law</i> violates § 375 of the Constitution (“right of defense in accord with the law”) because it gives the Ministry of Education the power to dismiss teachers without a formal enquiry. Although § 375 appears to refer to criminal trials, Daw Kyi Htay's claim is not unlike the substantive due process claims popular during the 1970s in the U.S. The Supreme Court has not yet issued its decision, but just by agreeing to hear the case it might have set a constitutional precedent.</div>
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Transferring constitutional review to the Supreme Court might also have the unintended effect of returning Myanmar more firmly to the family of Common Law countries. Nominally, Myanmar inherited its legal system from Great Britain after it gained independence in 1948, but 50 years of military rule have created many gaps in the law. Law schools do not use case method teaching and rarely discuss jurisprudential reasoning. The Supreme Court will sometimes cite other cases as precedent, but <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322728">Myint Zan</a> argues that the number of citations decreased from an average of 4.61 per case in 1948 to 1.27 in 1998. Myanmar is also the only common law country in the world to have a Kelsenian constitutional court; other common law countries combine constitutional review powers in a Supreme Court with general jurisdiction. </div>
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It is too early to predict what effect the NLD's proposal might have on constitutional governance in Myanmar, much less if the proposal will pass the legislature (notably, the military <a href="http://www.mmtimes.com/2012/news/641/news01.html">appears to support </a>the Constitutional Tribunal). It is possible that the Supreme Court, whose members remain in office until they reach 70 years of age, might have greater independence to rule on constitutional disputes. Perhaps the most important question is if the move to the Supreme Court would expand standing to allow regular citizens to petition for review. The NLD does not directly address this in its proposal, but it could potentially be the most important constitutional change for the majority of Myanmar citizens.</div>
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Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-39286387121150291322014-05-31T12:50:00.000-04:002014-06-08T19:39:03.892-04:00Partisan Oaths (Thailand)<i><a href="http://asiapacific.anu.edu.au/newmandala/">New Mandala</a></i> published a pretty damning <a href="http://asiapacific.anu.edu.au/newmandala/2014/05/17/thailands-juristocracy/">article</a> claiming that Thailand has become a juristocracy. I disagree on the extent and uniformity of the partisanship (see <a href="http://asiapacific.anu.edu.au/newmandala/2010/08/10/thai-institutions-constitutional-court/">my 2010 New Mandala piece</a> 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.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-85677226792153602982014-05-29T18:09:00.002-04:002014-05-29T18:09:57.663-04:00Mahfud supports Prabowo-Hatta (Indonesia)<span style="background-color: white;"><span style="color: #333333; font-family: Helvetica, Arial, lucida grande, tahoma, verdana, arial, sans-serif;"><span style="font-size: 14px; line-height: 19px;">Former Indonesian Constitutional Court Chief Justice Mahfud MD has agreed to head the executive board of the Prabowo-Hatta presidential campaign. </span></span><i style="color: #333333; font-family: Helvetica, Arial, 'lucida grande', tahoma, verdana, arial, sans-serif; font-size: 14px; line-height: 19px;"><a href="http://www.thejakartaglobe.com/news/power-players-behind-indonesias-presidential-candidates/">The Jakarta Globe</a> </i><span style="color: #333333; font-family: Helvetica, Arial, lucida grande, tahoma, verdana, arial, sans-serif;"><span style="font-size: 14px; line-height: 19px;">has more details about his role and other advisors in the presidential </span></span></span><span style="color: #333333; font-family: Helvetica, Arial, lucida grande, tahoma, verdana, arial, sans-serif;"><span style="font-size: 14px; line-height: 19px;">campaigns.</span></span>Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-40030059787822998812014-05-08T22:31:00.000-04:002014-05-08T22:31:00.174-04:00Allen & Overy in Myanmar<span style="background-color: white; font-family: Georgia, 'Bitstream Charter', serif; font-size: 14px; line-height: 23px;">Western firms are increasingly interested in investing in Myanmar, and so are Western law firms. </span><span style="background-color: white; font-family: Georgia, 'Bitstream Charter', serif; font-size: 14px; line-height: 23px;"></span><a data-mce-href="http://www.thelawyer.com/news/regions/asia-pacific-news/allen-and-overy-expands-into-myanmar/3020184.article" href="http://www.thelawyer.com/news/regions/asia-pacific-news/allen-and-overy-expands-into-myanmar/3020184.article" style="background-color: white; font-family: Georgia, 'Bitstream Charter', serif; font-size: 14px; line-height: 23px;"><em>The Lawyer</em></a><span style="background-color: white; font-family: Georgia, 'Bitstream Charter', serif; font-size: 14px; line-height: 23px;"> is a brief writeup of Allen & Overy's increasing presence in the country</span>Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-19124715291887262052014-05-07T22:20:00.000-04:002014-05-07T22:20:47.639-04:00Foreign Policy on Thai Constitutional Court<span style="background-color: white; color: #222222; font-family: 'Open Sans', 'Helvetica Neue', Helvetica, Arial, sans-serif; font-size: 14px; line-height: 23px;">Jake Scobey at </span><em style="background-color: white; color: #222222; font-family: 'Open Sans', 'Helvetica Neue', Helvetica, Arial, sans-serif; font-size: 14px; line-height: 23px;"><a data-mce-href="http://blog.foreignpolicy.com/posts/2014/05/07/the_dark_sordid_history_of_the_court_that_ousted_thailand_s_prime_minister" href="http://blog.foreignpolicy.com/posts/2014/05/07/the_dark_sordid_history_of_the_court_that_ousted_thailand_s_prime_minister" style="color: #1b8be0; font-style: inherit; line-height: 1.7; text-decoration: none;">Foreign Policy</a></em><span style="background-color: white; color: #222222; font-family: 'Open Sans', 'Helvetica Neue', Helvetica, Arial, sans-serif; font-size: 14px; line-height: 23px;"> 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.</span>Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-25763853181046402172014-04-29T18:15:00.000-04:002014-04-29T18:15:24.781-04:00First constitutional rights claim in Myanmar/Burma?According to <a href="http://www.mmtimes.com/index.php/national-news/10183-teacher-takes-fight-to-supreme-court.html" style="font-style: italic;">The Myanmar Times</a>, 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 <i>Civil Servants Law</i>, 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).<br />
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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.<br />
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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.<br />
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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.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-55684214842351678172014-03-07T00:05:00.002-05:002014-03-07T00:05:48.941-05:00Miles to go to rule of law (Myanmar/Burma)Earlier this week, the <a href="http://data.worldjusticeproject.org/">World Justice Project</a> released its fourth annual Rule of Law Index, which for the first time included Myanmar/Burma (data on Myanmar available <a href="http://data.worldjusticeproject.org/#/index/MMR">here</a>). The media, including <i><a href="http://www.irrawaddy.org/burma/burma-fares-poorly-global-rule-law-gauge.html">The Irrawaddy</a></i>, 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 (<i>not</i> including yours truly). <div>
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As the report’s lead author Alex Ponce pointed out to <a href="http://www.irrawaddy.org/burma/burma-fares-poorly-global-rule-law-gauge.html" style="font-style: italic;">The Irrawaddy</a>, 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.</div>
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In an interview with <a href="http://www.irrawaddy.org/burma/burma-fares-poorly-global-rule-law-gauge.html" style="font-style: italic;">The Irrawaddy</a>, 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. </div>
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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 (<a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1540-5893.2011.00457.x/abstract">Nick Cheesman</a> has written about how the Ne Win regime did this with special criminal tribunals during the 1960s).</div>
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<br />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 <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1434234">Jeffrey Staton and Julio Rios-Figueroa</a> 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.</div>
Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-75373196867858640242014-02-06T12:30:00.000-05:002014-02-06T12:30:03.538-05:00Less 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 <i><a href="http://www.irrawaddy.org/burma/burma-parliament-committee-keep-main-points-constitution.html">The Irrawaddy</a></i>, 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).<br />
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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 <a href="http://www.irrawaddy.org/burma/suu-kyi-says-report-shows-support-burma-charter-reform.html">revealed</a> 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 <a href="http://www.iconnectblog.com/2013/12/untilting-the-constitutional-playing-field-in-myanmar-burma/">seemed to have been amenable to amending § 59(f) </a>just a few weeks ago.<br />
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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 <i><a href="http://www.mmtimes.com/index.php/national-news/9400-president-to-test-new-constitutional-tribunal-with-eight-laws.html">The Myanmar Times</a></i>, the laws include:<br />
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<li>the Anti-Corruption Law </li>
<li>Farmers’ Rights Protection Law</li>
<li>the Pyithu Hluttaw Law</li>
<li>Amyotha Hluttaw Law</li>
<li>Pyidaungsu Hluttaw Law</li>
<li>Region and State Hluttaw Law</li>
<li>Union Auditor General’s Office Law </li>
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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?</div>
Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com2tag:blogger.com,1999:blog-3691657449681659500.post-57295558579366851382014-02-05T20:29:00.000-05:002014-02-05T20:29:52.414-05:00Messing with elections (Indonesia)Indonesia's Constitutional Court has done it again. A few weeks ago, the <i>Mahkamah Konstitusi</i> <a href="http://www.thejakartaglobe.com/news/factions-agree-on-simultaneous-elections/">announced</a> 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 <i><a href="http://www.thejakartapost.com/news/2014/01/27/politics-could-be-behind-mk-ruling.html">The Jakarta Globe</a></i>, the MK actually reached its decision last May.<br />
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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.<br />
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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.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-33270226562704156042014-01-31T02:21:00.000-05:002014-01-31T02:21:07.668-05:00Facebook<i>Brief Public Service Announcement:</i> 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 <a href="https://www.facebook.com/RuleByHukum?ref=hl">Rule by Hukum Facebook</a> page. So if you want a free clipping service about legal developments in Southeast Asia, check it out.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-23584410341325488052014-01-13T12:52:00.002-05:002014-01-13T12:52:37.642-05:00Judicial Corruption report in Myanmar (Myanmar/Burma)According to <i><a href="http://www.irrawaddy.org/latest-news/judiciary-plagued-graft-complaint-submissions-say.html">The Irrawaddy</a></i>, 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.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com3tag:blogger.com,1999:blog-3691657449681659500.post-90446017295717102402013-12-31T17:08:00.000-05:002013-12-31T17:08:04.246-05:00Untilting 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 <i>International Journal of Constitutional Law</i>'s <a href="http://www.iconnectblog.com/2013/12/untilting-the-constitutional-playing-field-in-myanmar-burma/">I-CONnect blog</a>.<br />
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On another note, hope everybody reading this has a happy and productive New Year!Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-80399693297589844062013-12-03T19:39:00.000-05:002013-12-03T19:39:00.388-05:00Glass half full or empty for lawyers? (Myanmar/Burma)The <a href="http://www.icj.org/">International Commission of Jurists</a> has released a new <a href="http://www.icj.org/myanmar-lawyers-still-face-restrictions-despite-increased-independence-2/">report</a> about the state of the legal profession in Myanmar. <i><a href="http://www.irrawaddy.org/burma/burma-lawyers-see-greater-freedom-still-far-go.html">The Irrawaddy</a></i> 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.<br />
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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.<br />
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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.<br />
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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.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-40784023440640908612013-11-27T10:21:00.000-05:002013-11-27T10:23:46.361-05:00School'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 <a href="http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCwQFjAA&url=http%3A%2F%2Fwww.niu.edu%2Fburma%2Fpublications%2Fjbs%2Fvol12%2FLegal_Education_in_Burma_Unpublished_Version.pdf&ei=GgmWUo7lE6yRigelo4HACA&usg=AFQjCNErbmW1VsSgIu_vPCfXuFcOUoV1Jw&sig2=KCRO2zhowczM2QUcMSJCUw&bvm=bv.57155469,d.aGc">Myint Zan's 2008 article</a> for a more detailed discussion of the problems with the legal education system). According to <i><a href="http://www.irrawaddy.org/burma/school-law-small-step-rule-law.html">The Irrawaddy</a>,</i> Johns Hopkins University, Australian National University, and Dulles University are involved in assisting Yangon University as it revises its curriculum.<br />
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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 <a href="http://www.babsea.org/">BABSEA</a>, 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.<br />
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* Coincidence that this is also my birthday? I think not.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-73319445767325635512013-11-22T10:26:00.001-05:002013-11-22T10:26:45.039-05:005th Amendment Rights in China? (China)Yes, I realize that China is <i>not</i> 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.<br />
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According to <a href="http://www.reuters.com/article/2013/11/21/us-china-torture-idUSBRE9AK06L20131121?utm_source=Sailthru&utm_medium=email&utm_term=%2AMorning%20Brief&utm_campaign=MB%2011.21.13">Reuters</a>, 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).<br />
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On the one hand, the announcement is potentially revolutionary. Chinese police and courts have accepted confessions extracted through torture for millennia (the famous <i><a href="http://www.amazon.com/Celebrated-Cases-Judge-Detective-Stories/dp/0486233375/ref=sr_1_3?ie=UTF8&qid=1385132352&sr=8-3&keywords=judge+dee">Judge Dee</a> </i>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.<br />
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The announcement also raises questions about the SPC's role in China's legal system. The Court seemed to have a brief <i>Marbury v. Madison</i> 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.<br />
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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 <i>not</i> 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.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-32324722650851141602013-11-19T13:28:00.000-05:002013-11-19T13:28:11.198-05:00Bad apple or rotten core? (Indonesia)In the wake of <a href="http://rulebyhukum.blogspot.com/2013/11/disorder-in-court-indonesia.html">last week's mob attack</a> on the Indonesian Constitutional Court (MK), some politicians are taking the opportunity to remind the court about its legitimacy problems. According to <i><a href="http://www.tribunnews.com/nasional/2013/11/15/hakim-mk-harus-dikocok-ulang">Viva News</a></i>, DPR representative Eva Sundari (PDI-P) has called on all eight justices to resign:<br />
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<i>New justices should be elected: Those who do not share the sin of Akil Mochtar for endorsing his unaccountable rulings. </i>(translation from <i><a href="http://www.thejakartapost.com/news/2013/11/16/constitutional-court-justices-still-lack-public-trust.html">The Jakarta Post</a></i>)</blockquote>
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?<div>
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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 <a href="http://www.abs-cbnnews.com/cjontrial">was impeached and convicted</a> on a variety of corruption allegations. Even the U.S. Supreme Court has not been immune to corruption. In 1969, <a href="http://en.wikipedia.org/wiki/Abe_Fortas#Nomination_to_be_Chief_Justice">Justice Abe Fortas</a> resigned amid allegations that he accepted a large sum of money from a financier who was under government investigation. </div>
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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 <a href="http://www.thejakartapost.com/news/2013/05/03/constitutional-court-independence-last-resort.html">famously accused</a> 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). </div>
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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.</div>
Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-70239526679438624912013-11-18T11:11:00.004-05:002013-11-18T11:11:47.890-05:00Survey says... Amend the Constitution! (Myanmar/Burma)On Friday, according to <i><a href="http://www.irrawaddy.org/burma/naypyidaw-authorities-block-nld-poll-constitutional-reform.html">The Irrawaddy</a></i>, local authorities in Naypyitaw refused to give the National League for Democracy permission to conduct a poll of local support for amending the 2008 Constitution. The government reversed itself soon after and allowed the poll.<br />
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Not surprisingly, the NLD found overwhelming support for constitutional amendment. Out of the approximately 25,000 people who participated, 88% supported amendment, 8% favored rewriting the entire constitution, and the rest were neutral.<br />
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As<i> </i><a href="http://www.irrawaddy.org/burma/nld-claims-overwhelming-public-support-amending-constitution.html" style="font-style: italic;">The Irrawaddy</a> notes, the poll's methodology is questionable; it certainly would not merit publication in a peer-reviewed academic journal. Asking people to attend a polling station creates a self-selection bias in which residents who are more likely to agree with the NLD are also more likely to participate. There was no attempt at random sampling.<br />
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Naypyitaw itself is hardly representative of the entire country. However, that fact might bias against the NLD's results; one would imagine that, as the seat of government and the military, Naypyitaw is less likely to be a stronghold of the NLD (although in the April 2012 by-elections the NLD did win several seats).<br />
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More important is which constitutional amendments people would support. The NLD has prioritized reducing the role of the military in politics and allowing Burmese with non-citizen dependents (specifically, Aung San Suu Kyi) to run for president. It's far from clear if and to what extent this platform represents the preferences of the 88% who voted in favor of amendment, much less the rest of the country. In fact, there are many other parts of the constitution that would benefit from amendment, including the overly vague provisions on the powers of legislative committees.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-68683869872781974222013-11-16T03:36:00.001-05:002013-11-16T03:36:31.307-05:00Disorder in the Court (Indonesia)Talking with several experts and activists these past few weeks, it's clear that many are disappointed in the corruption scandal involving former Constitutional Court (<i>Mahkamah Konstitusi</i>) chief justice Akil Mochtar. Many are also disappointed that the court has not taken more aggressive measures to establish an independent ethics committee.<br />
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However, on Thursday (coincidentally, two days after I'd visited the MK library), public expressions of discontent with the MK reached a new phase as supporters of a party in a Maluku local election dispute stormed the MK building. According to <i><a href="http://www.thejakartapost.com/news/2013/11/15/protesters-run-amok-constitutional-court.html">The Jakarta Post</a></i>, several shouted "the MK is a thief" because their favored candidate lost.<br />
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Increasingly, I hear people raising questions about the appropriate role for the MK in deciding local elections disputes. Most people I've met still think the MK will provide the fairest adjudication of cases, but it's far from clear if retaining jurisdiction over the cases is good for the MK. Many seem to think that whichever institution is tasked with deciding these disputes will suffer, either from corruption, an overflowing docket, or popular anger. Unfortunately, there are no easy solutions and there seems to be little appetite for the large-scale institutional reform that would be necessary to create a separate court for local elections disputes.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-24739277906777212772013-11-01T07:44:00.001-04:002013-11-01T07:44:11.091-04:00New MK chief (Indonesia)<div>
Indonesia's Constitutional Court (<i>Mahkamah Konstitusi</i>) met earlier today to elect a new chief justice, former deputy chief Hamdan Zoelva. Chief Justice Hamdan won an internal vote of the eight remaining justices. According to <i><a href="http://nasional.kompas.com/read/2013/11/01/1723454/Jadi.Ketua.MK.Ini.Janji.Hamdan.Zoelva?utm_source=WP&utm_medium=box&utm_campaign=Ktswp">Kompas</a></i>, the main challenger was Arief Hidayat, a relatively new justice. It is not clear what the final vote tally was, but it appears that there were at least two rounds to the voting. Given that there were only eight justices present, it is possible that one vote ended up in a tie.</div>
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According to <i><a href="http://nasional.kompas.com/read/2013/11/01/1723454/Jadi.Ketua.MK.Ini.Janji.Hamdan.Zoelva?utm_source=WP&utm_medium=box&utm_campaign=Ktswp">Kompas</a></i>, after his election, Chief Justice Hamdan Zoelva gave a speech warning about the dangers of corruption and declaring the need to detect possibly corrupt activities amongst justices and court employees early. </div>
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Interestingly, Hamdan continues the tradition of Akil Mochtar, but also of Mahfud MD, of having served in the DPR and been affiliated with a political party (in Hamdan's case, the PBB or Crescent Star Party). However, unlike his predecessors, Hamdan was chosen by the president, not by the DPR. Thus far, MK justices have not voted in clear blocs aligning with their appointing body (i.e., presidential appointees don't all vote the same). Hamdan also has considerable experience in private sector practice. As such, it will be interesting to see if his background influences his management style as chief justice.</div>
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In other news, according to <i><a href="http://www.thejakartaglobe.com/news/akil-mochtar-discharged-from-constitutional-court/">The Jakarta Globe</a></i>, the MK's internal ethics has officially discharged Akil Mochtar for violations of the judicial code of conduct.</div>
Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-30998997816355721222013-10-30T10:57:00.001-04:002013-10-30T10:58:02.033-04:00The MK is not a calculator (Indonesia)Yet another conveniently timed report about the Indonesian Constitutional Court. Veri Junadi, associated with the NGO <a href="http://www.perludem.or.id/">Perludem</a>, has written a <a href="http://verijunaidi.com/2013/10/02/bukan-mahkamah-kalkulator/">book</a> about the MK's handling of elections disputes. The title of the report is <i>The MK is not the Supreme Calculator</i>, partly a critique of the fact that the MK often finds itself involved in assessing vote counts in elections cases. The book is only in Indonesian and unfortunately has not been translated, but worth checking out for students of the court.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0tag:blogger.com,1999:blog-3691657449681659500.post-64362585888306653382013-10-28T10:24:00.000-04:002013-10-28T10:24:11.501-04:00Simon Butt on MK Elections Jurisprudence (Indonesia)The <a href="http://www.cdi.anu.edu.au/.IND/2012-13/2013_03_21_RES_IND_PPS_2013.01_cnst_crt_Butt_CBR.html">Centre for Democratic Institutions</a> commissioned Prof. Simon Butt, probably the foremost Western expert on Indonesia's Constitutional Court (<i>Mahkamah Konstitusi</i>) jurisprudence, to assess the MK's handling of local elections cases in this <a href="http://www.cdi.anu.edu.au/.IND/2012-13/2013_03_21_RES_IND_PPS_2013.01_cnst_crt_Butt_CBR.html">report</a>. In particular, Butt worries that the court had not adequately defined its standard for overturning an election (a "structured, systematic, and massive" breach) and does not rigorously evaluate evidence.<br />
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This report was published in March, so long before Akil-gate, but it still provides invaluable to the MK's elections cases and some of the problems that plagued the system even before this October. One has to wonder now how much of the MK's fuzziness on these matters was deliberate.Dominic J. Nardi, Jr.http://www.blogger.com/profile/15986558247468103068noreply@blogger.com0