Rule by Hukum: Law in Southeast Asia

Impeachment imbroglio

2012-01-21T09:50:00.000-05:00

I haven't written much about the impeachment of Chief Justice Corona in the Philippines partly because events are moving so quickly that it's hard to post anything without it becoming obsolete the next day. Nonetheless, the main development now seems to be that prosecutors have found inconsistencies on Corona's Statement of Assets, Liabilities, and Net Worth (SALN) (for an overview of the charges, see here and here). This alone is an impeachable offense. Other allegations of corruption have arisen, including misappropriation of World Bank project funds (see the World Bank memo asking for the return of 8.6 million pesos here).

While I've been following the news pretty closely, I certainly don't recall any discussion of corruption as the basis for impeachment before the House voted last December. While these allegations of corruption certainly paint a disturbing picture of Corona's chief justiceship, I'm surprised that the trial has moved in this direction rather than focusing on the stated basis for impeachment, namely Corona's decisions. I hope the focus on real crimes means that the Philippines can minimize the damage the impeachment trial will have on judicial independence. If future judges see this impeachment as the legitimate removal of a corrupt official rathe than a politically motivated attack then all the better. However, while judges don't often state their positions publicly, what I've seen in news reports is that judges are sticking by their chief justice - at least for now.

Hluttaw oversight of courts

2012-01-09T12:46:00.001-05:00

Normally, I'm not one to advocate for infringements on judicial independence. However, one of the biggest mistakes with Indonesia's reformasi period was to give judges independence without accountability, arguable entrenching judicial corruption up to the present day.

In that light, I'm glad to see that Myanmar's parliament (Hluttaw) has formed a committee to review and assess controversial judicial verdicts. According to two Myanmar Times articles (here and here), the Pyithu Hluttaw Judicial and Legislative Committee has invited defendants who believe their case was decided unfairly to submit complaints. The committee can then request the court to reassess the case.

The committee asks for "irrefutable evidence" of bias, which on its face sounds like an impossible standard. Yet, according to committee chairman Thura U Aung Ko, of the 100 complaints received 69 have been granted. This is not only a high rate of success, but also a clear and bold condemnation of the judicial system, arguable one of the least independent in the world.

Usually, when Myanmar's leaders talked about judicial reform, it was in the context of cracking down on corruption. This is the first time I can recall when the discussion has seriously turned to independence and impartiality. It's definitely an encouraging sign. However, judicial reform is a long process and it's not yet clear to me that it's getting the attention it deserves. In particular, we'll need to see more efforts to retrain or even replace current judges with fresh blood.

Anwar acquitted

2012-01-09T09:10:00.000-05:00

I haven't written recently about the trial of Anwar Ibrahim in Malaysia, partly because I've been busy but also because it seemed nothing surprising was happening in the trial. Even top Malaysia experts figured a guilty verdict was inevitable. However, earlier today Judge Zabidin Mohamad Diah ruled that the prosecution had not satisfied its burden of proof and there was still some question about the DNA evidence.

It's not yet clear what this means for the rule of law in Malaysia. According to BBC, Information Minister Rais Yatim proclaimed that "Malaysia has an independent judiciary" and that Prime Minister Najib's reforms extended to the courts. However, political analysts suspect that the acquittal might have been orchestrated to diffuse opposition to Najib, especially after the Bersih 2.0 protests last July 9 - rights ends, wrong means. While we probably won't ever know for sure (unless Judge Diah keeps a journal), we might get more clues if the government appeals.

Beyond the anti-Arroyo?

2012-01-06T12:10:00.001-05:00

Aquino's legacy on the rule of law is still being determined. On the one hand, judges complain that the impeachment of Chief Justice Corona is becoming essentially trial by publicity. On the other hand, some human rights activists credit the president for going after former general Jovito Palparan, one of the masterminds behind extrajudicial killings against suspected leftists (although Palparan remains at large). Ironically, under the Puno Supreme Court had pushed for bringing human rights violators to justice while the Arroyo administration stalled.

The central question for Aquino is whether he can get beyond the image as the "anti-Arroyo". Mark Dern in Asia Times highlights the problems plaguing the Philippine criminal justice sector. Perhaps justice-sector reform could be a way for Aquino to demonstrate his reform credentials and leave a legacy beyond simply rectifying the sins of the previous administration.

Updates from the Region

2012-01-03T18:29:00.002-05:00

I'm still recovering from the Christmas break and trying to get catch up on the news. Here are a few important items:

Indonesia

According to The Jakarta Post, the Constitutional Court ruled that former political party members could not hold a seat in any election-organizing body, such as the General Elections Commission (KPU) or the General Elections Monitoring Body (Bawaslu), within 5 years of their retirement. The ruling was justified as preserving the impartiality and independence of those bodies.

Philippines

There's been more maneuvering in the impeachment of Chief Justice Corona. The Supreme Court is set to decide whether to issue a temporary restraining order against the Senate to prevent the impeachment from proceeding to a formal trial. Even more interesting, according to PhilStar, the case has been assigned to Justice Carpio, widely seen as Corona's most likely replacement. Stay tuned for what looks like high legal drama.

A verdict!

2011-12-16T02:12:00.001-05:00

Myanmar's Constitutional Tribunal issued a ruling in its second case! (I'm still not quite sure what happened to the first case and find no record of a final decision online). The tribunal ruled that several sections of the Emoluments, Allowances, and Insignias Law as unconstitutional. It's interesting to see the court actually choosing to exercise review so early, even if in a relatively minor case. Unfortunately, that's all I know about it right now. See below for the original New Light of Myanmar announcement of the decision:

Union Constitutional Tribunal gives verdict

NAY PYI TAW, 14 Dec-The tribunal comprising the chairperson and all the members of the Constitutional Tribunal of the Union delivered the verdict on proposal No. 2/2011 submitted by 23-member group including Amyotha Hluttaw Representative Dr Aye Maung through the Amyotha Hluttaw Speaker in accordance with Section 15 (d) of the Union Constitutional Tribunal Law, at Room No. 1 of the tribunal this morning.

The verdict stated that the proposal of 23-member party including Dr Aye Maung was allowed; according to the provisions of the Constitution of the Republic of the Union of Myanmar, Section 4 (c) of Emoluments, Allowances and Insignias Law of Region or State level Officials covers Region or National Races Affairs Ministers as they are the ministers of regions or states concerned and provisions in Section 5 and 17 of this law is not in compliance with the constitution.-MNA

Human Rights education - Burmese style

2011-12-13T22:24:00.000-05:00

When an authoritarian regime claims that it needs to educate its people about human rights, the reaction of most outsiders is to laugh or scoff. After all, human rights are universal. However, a Democratic Voice of Burma interview with Dr. Than Nwe, a member of Burma's new Human Rights Commission, actually raises an important point. According to Dr. Than Nwe, the commission has begun receiving petitions. However, most of the petitions ask for help resolving issues clearly outside the commission's jurisdiction, such as family issues. Of course, this is just one anecdote from an admittedly partial source, but it is certainly worth thinking carefully about how and when to conduct human rights education. Hopefully, now that the U.S. is engaging with the new regime, U.S. NGOs might - one day - be able to provide this education.

Crisis time!

2011-12-12T14:24:00.001-05:00

While there has been much talk about a final showdown between the Aquino administration and the Corona Court, I was shocked to hear from BBC yesterday that the Congress actually impeached Chief Justice Corona. Just a few hours before I had read an article in which Corona talked of a secret conspiracy to oust him. Normally I'd have dismissed such talk, but at this point I've really got to wonder what the Aquino administration is thinking. The Philippines Supreme Court has been relatively independent since the EDSA. It has waded into a variety of politically charged questions, including term limits for President Ramos, the legality of EDSA II, and extrajudicial killings. The impeachment against Corona is the first time a Philippine justice has been impeached on blatantly political grounds. Even the impeachment against Davide nominally focused on the Court's alleged misappropriation of funds. Sadly, even if the Senate refuses to convict Corona the whole imbroglio might make Philippine justices think twice about taking on political cases.

Legal review commission

2011-12-11T00:14:00.001-05:00

New Light of Myanmar posted an article today about the Commission on Legal Affairs and Special Cases. One of its tasks is to check whether existing laws conform with the constitution. On its face, it's a bit unclear whether the Hluttaw wouldn't just ask the Constitutional Tribunal to handle these issues - that is after all the whole point of constitutional review. It's also noteworthy that Pyithu Hluttaw Speaker Thura Shwe Mann met with this commission, but was adamantly opposed to giving the tribunal abstract review. Why? Sadly, it's yet another question that only the mosquitos on the wall in Naypyidaw can probably answer at this point.

Pyithu Hluttaw Speaker Thura U Shwe Mann meets members of Studying, Examining and Reviewing Commission on Legal Affairs and Special Cases

YANGON, 10 Dec—The Studying, Examining and Reviewing Commission on Legal Affairs and Special Cases was constituted with 15 members at the 48th day second regular session of the first Pyithu Hluttaw held on 16 November 2011.

Speaker of Pyithu Hluttaw Thura U Shwe Mann yesterday morning met members of the commission at the commission office (Yangon branch) at room 209-210 of No. 66/B at Yuzana Condo Tower at the corner of Shwegondine and Kaba Aye Pagoda Roads in Bahan Township.

It was also attended by Deputy Speaker of Pyithu Hluttaw Chairman of the Commission U Nanda Kyaw Swa and commission members, chairmen of Pyithu Hluttaw committees, Yangon Region Chief Minister U Myint Swe, the speaker of Yangon Region Hluttaw and members and guests.

In his address, Speaker of Pyithu Hluttaw Thura U Shwe Mann said that the commission is a Union level organization that was formed under section 2, subsection (h) of the Pyithu Hluttaw Law with experienced persons in legal, international and economic fields to be able to serve the interests of the Hluttaw and the State.

The commission is responsible for scrutinizing the existing laws whether they can be conformity with the constitution and Our Three Main National Causes—Nondisintegration of the Union, Non-disintegration of National Solidarity and Non-disintegration of Sovereignty, whether they can serve the interests of the State and the citizens, and whether they can be in conformity with the international convention and for submitting the reports on amendment, revocation and new promulgation to the Hluttaw through the Speaker of the Pyithu Hluttaw.

The suggestions and assessments of the commission will contribute much towards undertakings of the Hluttaw in serving the interests of the State and the people. Moreover, the commission is to assess the laws concerning economic sector and give suggestions for economic reform of the State.

He called on the commission to take up its tasks dutifully for the Hluttaw and the State interests.

Chinese Ambassador Mr Li Junhua donated computer accessories for the Hluttaw Office. Chairman of the Pyithu Hluttaw International Relations Committee U Hla Myint Oo accepted the donations. The Ambassador explained the purpose of donation.

Speaker Thura U Shwe Mann spoke words of thanks.

The Studying, Examining and Reviewing Commission on Legal Affairs and Special Cases is formed with Deputy Speaker of Pyithu Hluttaw U Nanda Kyaw Swa of Dagon Township Constituency as Chairman, U Thein Swe of An Constituency and U Htay Myint of Myeik Constituency as Vice-Chairmen. Commission members are retired Ambassador (Retd) U Lin Myaing, Director-General (Retd) U Mya Thein of the Supreme Court of the Union, Director- General (Retd) U Than Tun of the Ministry of Foreign Affairs, Professor (Retd) Dr Aung Tun Thet, Lt-Col Aung Khin Thein of Judge Advocate-General’s Office of the Commander-in- Chief (Army), Professors Dr Tin May Tun and Dr Thida Oo of the Ministry of Education, Director (Retd) U Tin Win of the Supreme Court of the Union, Region Law Officer (Retd) U Khin Maung Oo, Advocates U Myint Lwin and U Than Maung, and Deputy Director (Retd) Daw Than Than Yi of Attorney-General’s Office.

More fighting words

2011-12-07T08:37:00.001-05:00

On Monday, President Aquino attended a justice cooperation summit with many of the serving Supreme Court justices. Usually, these are rather formal and stiff affairs. However, Aquino gave a speech lambasting Chief Justice Corona for ruling against the administration and being beholden to Arroyo.

Of course Aquino had criticized the justice before, but this particular speech was shocking for its directness and confrontation with the justices in the same room. Several constitutional law experts have attacked Aquino for his "tirade," one going so far as to compare him to Fidel Castro.

For his part, Corona confirmed that he is not resigning. He has rarely participated in the "debate" directly, but rather spoken through Supreme Court Spokesman Midas Marquez. On Tuesday, Marquez stated that, “It is just unfortunate that the Chief Justice was appointed by someone that many do not like. Now they are attacking him. It’s not his fault."

It'll be interesting to see what polls say about Aquino's attacks on the judiciary. I haven't been in the country in a while so I unfortunately don't have a sense on the ground.

Updates on the Arroyo imbroglio

2011-12-05T21:46:00.001-05:00

Apologies for not writing more about the current imbroglio with former Philippine president Arroyo and the Supreme Court. This is easily one of the biggest tests of the court's independence over the past decade. News coverage has been wall-to-wall in the Philippines of course. Here are some excepts from an Asia Times piece - I'll write more when I can:

The DoJ justified its move on the legal argument it had not yet received the Supreme Court's temporary restraining order when Arroyo arrived at the airport. The Supreme Court has since suggested it could file contempt charges against DoJ Secretary Leila de Lima, while pro-Arroyo attorneys are seeking de Lima's disbarment for apparently flouting the Supreme Court's decision.
...
In the court of public opinion, however, sentiment seems to be on Aquino's side. Opinion polls show that both Arroyo and the Supreme Court are unpopular and suffer from credibility issues in the public eye. "It is no less corrupt than the rest of the Philippine judicial system," quipped Pacific Strategies and Assessments, a risk analysis firm, in recent reference to the Supreme Court's apparent role in protecting Arroyo from prosecution.

While the Supreme Court insists its decisions are consistent with the letter of the law, its record when ruling on cases involving the Arroyos has been overwhelmingly in the former first couple's favor. Chief Justice Corona has voted 19 times in favor of the Arroyos and never in dissent since taking over the Supreme Court's leadership. Two senators and a number of prominent individuals have recently asked Corona to inhibit himself from any future deliberations involving Arroyo to concerns of his impartiality.

The Supreme Court is currently holding oral arguments on petitions filed on the constitutionality of the DOJ-Commission on Elections (Comelec) joint panel, which recommended Arroyo's prosecution for alleged electoral fraud in 2007. Based on that recommendation, an arrest warrant was issued by the Pasay Regional Trial Court (RTC) judge against Arroyo, which puts to rest for now the question of whether she should be allowed to travel abroad.

Constitutional Tribunal hears a case!

2011-11-29T12:30:00.001-05:00

Myanmar's Constitutional Tribunal finally accepted a case yesterday. It appears this is only the second case it has heard, although I know almost nothing about the first case, which was accepted back on July 2. The second case deals with the minister for national races affairs. The case was brought by the Amyotha Hluttaw speaker. Unfortunately, beyond that The New Light of Myanmar gives few details. Hopefully NLM will also announce the outcomes of these cases.

Constitutional Tribunal hears case

NAY PYI TAW, 28 Nov-The tribunal comprising chairman of Constitutional Tribunal and members heard the case No. 2/2011 opened by 23 persons including Amyotha Hluttaw Representative Dr Aye Maung to scrutinize and decide whether or not the provisions for set rank of national races affairs minister prescribed in Cash Award, Expenses and Insignia of Region or State Level Persons Law are in conformity with the provisions of the constitutional laws, at room No. 1 this morning. The case was brought before the tribunal through the Amyotha Hluttaw Speaker in accord with Section 15 (d) of constitutional tribunal law.-MNA

State Constitutional Tribunal hears submission No. 1/2011

NAY PYI TAW, 1 July-The State Constitutional Tribunal comprising the Chairman of the State Constitutional Tribunal and members heard the submission No. 1/2011 in accord with the Article 13 of the State Constitutional Tribunal at Office No. 1 at 10.30 am today.

More tribunalations

2011-11-20T00:36:00.001-05:00

The New Light of Myanmar has yet another article about the debate in the Hluttaw over the Constitutional Tribunal. Two things stand out. First, the Hluttaw Speaker, Khin Aung Myint, seems to be arguing that the tribunal is less a court and more like a legislature, meaning that tribunal review over draft laws would be appropriate. Second, he seems to be retreating a bit and suggesting that only questionable laws be submitted. The full article is below:

Fourth day Pyidaungsu Hluttaw Session held Bill amending Political Parties Registration Law approved by both Hluttaws put on record by Pyidaungsu Hluttaw

NAY PYI TAW, 18 Nov-The fourth day session of Pyidaungsu Hluttaw continued at Pyidaungsu Hluttaw Hall in Hluttaw Building here today, attended by Pyidaungsu Hluttaw Speaker U Khin Aung Myint, Pyithu Hluttaw Speaker Thura U Shwe Mann and 584 Pyidaungsu Hluttaw representatives.

At the session, one bill was approved; Hluttaw representatives were informed to register for discussion; jointcommittee members were co-opted; and one bill was recorded.

First, the Pyidaungsu Hluttaw Speaker explained measures of Pyithu Hluttaw and Amyotha Hluttaw with regard to decision of Pyidaungsu Hluttaw that bills approved by the Pyidaungsu Hluttaw or deemed to be approved by the Pyidaungsu Hluttaw, if suspected to be not in line with the constitution , are to be sent to the Constitutional Tribunal of the Union to undergo a scrutiny before sending to the President for his approval.

The Pyidaungsu Hluttaw Speaker continued that the Pyithu Hluttaw proposed to the Pyidaungsu Hluttaw on 2 November to let Pyithu Hluttaw reject the decision made at the Pyidaungsu Hluttaw on 28 October that “bills approved by the Pyidaungsu Hluttaw or deemed to be approved by the Pyidaungsu Hluttaw, if suspected to be not in line with the constitution, are to be sent to the Constitutional Tribunal of the Union to undergo a scrutiny before sending to the President for his approval” is neither in accordance with the constitution nor Pyidaungsu Hluttaw Rules and By-laws and asked to cancel the decision.

It is enacted in laws that bills approved by the Pyidaungsu Hluttaw are to be sent to the President for his approval and promulgation of the laws.

That bills suspected of violation of the constitution are to be sent to the Constitutional Tribunal of the Union before sending to the President is not a case which is not allowed by law. As only the constitutional tribunal can define and make comment to the bill, it does so with genuine goodwill to ensure there is no mistake. If the constitutional tribunal remarks that a particular fact is not in conformity with the constitution, Pyidaungsu Hluttaw can reconsider the fact and make the final decision.

The Pyidaungsu Hluttaw Speaker in his explanation of the legal outlook on the constitutional tribunal can scrutinize the enacted laws only said that responsibilities of the Constitutional Tribunal of the Union is stated in Article 322 (a) of the constitution as interpreting the provisions under the Constitution; Articles 325 and 326 of the constitution state describe persons who have the right to summit matters directly to obtain the interpretation, resolution and opinion of the Constitutional Tribunal and they can ask the remark from the Constitutional Tribunal with regard to the proposed bill; like the president who can ask the remark of the Constitutional Tribunal concerning particular bill before he signs, the Hluttaw speaker can also do so for suspicious facts. So, the responsibility of the tribunal is not only scrutinizing the existing laws but defining the bill and making remarks upon requests.

According to Article 326 of the constitution, representatives that represent at least 10 per cent of all Pyithu Hluttaw representatives or Amyotha Hluttaw representatives can ask the Constitutional Tribunal to define a particular bill. As the main responsibility of the representatives is to legislate, they can ask the opinion of the constitutional tribunal in analyzing the bills whether or not they are in line with the constitution.

The provision concerning the Constitutional Tribunal is included under the Chapter VI Legislation of the constitution, but the constitutional tribunal is not the court.

In addition, it is only to seek the remarks of the constitutional tribunal in case the bills are suspected of violating the constitution and not to send every bill to the constitutional tribunal, thus it cannot be translated that the decision of the constitutional tribunal is a must-to-do step in legislative process, but it is just to control the reckless actions.

Law Committee

2011-11-20T00:22:00.001-05:00

An interesting article in The New Light of Myanmar about the new Hluttaw Law Committee that was created to review existing and new laws:

Pyithu Hluttaw session continues for 48th day

One proposal discussed, information to enlist given, formation of commission submitted, approval for one bill sought

NAY PYI TAW, 16 Nov-

...

The Pyithu Hluttaw Speaker reported the Hluttaw that Assessment Commission of Existing Laws formed on 28 August will be renamed to Studying, Examining and Reviewing Commissions on Legal Affairs and Special Cases. The commission will be formed with 15 members, including Chairman Deputy Speaker of Pyithu Hluttaw, Vice-Chairman U Thein Swe of An Constituency and U Htay Myint of Myeik Constituency, members Ambassador (Retd) U Lin Myaing, Director-General (Retd) U Than Tun from Ministry of Foreign Affairs, Professor (Retd) Dr Aung Tun Thet, Lt-Col Aung Khin Thein of Judge Advocate-General Office of the Commander-in-Chief (Army) Office, Professor Dr Tin May Tun, Prfessor Dr Thida Oo, Director (Retd) U Tin Win of Supreme Court, Region Law Officer (Retd) U Khin Maung Oo, Advocate U Myint Lwin, Advocate U Than Maung, Deputy Director (Retd) Daw Than Than Yi of Union Attorney-General Office.

The secretary will be announced separately. Duties, authorities, rights and terms are as follow:-

Duties and rights of the commission

(1) The commissiona.

a. will have to suggest amendment, revoking and drafting of laws after studying existing laws to the Hluttaw through the Pyithu Hluttaw Speaker.

b. will have to report to the Hluttaw through the Hluttaw Speaker after studying special cases, if any, from legal standpoint.

c. will have to accomplish duties assigned by the Hluttaw Speaker within designated period.

d. will have to share duties within the commission for special cases categorized by the Pyithu Hluttaw Speaker.

e. will have to make suggestions if requested by the Pyithu Hluttaw.

(2) The commission shall invite responsible persons of related organizations and discuss with them.

(3) The commission members could freely make discussions if not contrary to provisions in the Constitution of the Republic of the Union of Myanmar and Pyithu Hluttaw Laws.

(4) Behaviours and words of a member in the commission meeting are not to be publicized. The commission will have to approve the meeting record with detailed
discussions. The records shall not be distributed. Copy of the report of the Hluttaw will have to be sent to the Hluttaw Office to file as a case.

(5) The commission meeting could be convened as and when necessary and the meeting is valid if half of the members attend it.

Rights and opportunities of the commission

(1) The commission members shall enjoy allowances of Hluttaw representatives in addition to rights designated by the Hluttaw when they are in the commission-based region to perform the duty of the commission and to attend commission meeting and whey they are traveling on duty.

(2) The commission members are immune from other laws regarding discussions in commission meetings apart from Pyithu Hluttaw Law.

The commission is Union-level institution in accord with Sub-section (h) of Section (2) of Pyithu Hluttaw Law and its term is not more than one year.

The Pyithu Hluttaw Speaker explained that the commission has done its functions about five months ago. In so doing, occasionally encountering with irregular cases such as legal affairs, political and international affairs, economic and social affairs is very likely. With regard to legal affairs, it has been tried to include retired personnel and currently discharging personnel from judicial departments, personnel discharging at and retired from the Attorney-General Office of the Union and courts at different levels, advocates and lawyers, and instructors giving lectures on law in the commission.

Likewise, ambassadors, directors-general, and officials from the Ministry of Foreign Affairs Ministry who have experience in political and international affairs are assigned to the commission to be able to deal with political and international affairs.

So, the commission thanks to its comprehensive organizational structure can contribute greatly in analyzing special cases which emerge occasionally.

Hluttaws are mainly promoting the interests of the nation and the public. The commission was formed with selected members for it is assumed that the commission
members can contribute to not only the Hluttaw but also the national and public interests with their knowledge, experience and goodwill.

Hell no, she can't go

2011-11-15T10:39:00.001-05:00

Despite the Supreme Court's TRO yesterday regarding the WLO against former President Arroyo, the administration physically prevented them from catching their flight out of Manila yesterday. In a dramatic scene, the former president was wheeled away from their flight into a room with their lawyers. There are already calls to impeach Aquino over this and other recent decisions. All that's certain for now is that the Aquino administration has set itself up for an even more intense showdown with the Supreme Court.

Suu Kyi speech about courts

2011-11-15T01:48:00.001-05:00

Mizzima has excepts from a speech Daw Aung San Suu Kyi gave at a press conference marking the first anniversary of her release from house arrest. Perhaps not surprisingly given her experience, she lambasts the judicial system. It's worth checking out to see how she prioritizes judicial reform.

Strange bedfellows?

2011-11-15T01:43:00.001-05:00

More controversy between Burma's two Hluttaw chambers. The two chambers are trying to resolve a bill regulating peaceful protests. According to The Myanmar Times, the Pyithu Hluttaw is seeking a stronger bill than the Amyotha Hluttaw. In particular, U Thein Nyunt of Thingangyun argued that protesters should be allowed to carry the national flag, and not just the flag of their organization or party.

A few things strike out at me. From a legal point of view, Thein Nyunt is using the 2008 Constitution to justify his arguments about the bill. It's fascinating to see that the constitution - so maligned just a year ago - now becomes a platform for rights debates in the Hluttaw.

Politically, the amount of influence Thein Nyunt has over this issue is surprising. He is, after all, a former NLD member and current MP from the National Democratic Force. Yet, he is not only allowed to speak out, but Speaker Thura Shwe Mann approved his objections. I certainly wouldn't have predicted this a year ago...

There is no reason to ask Constitutional Tribunal for opinions

2011-11-15T01:23:00.001-05:00

For now, it seems the Pyithu Hluttaw has won and the Hluttaw will not forward laws to the Constitutional Tribunal for vetting before they're enacted into legislation. However, I thought this passage from the November 14 edition of The New Light of Myanmar was interesting:

Bill Committee or Joint Bill Committee accomplished its duties after submitting bills to the Pyidaungsu Hluttaw. It is not responsible for scrutinizing bills approved or deemed to be approved by Pyidaungsu Hluttaw again as they have been scrutinized step by step. Any organization or person, which is responsible or has undertaken, has no right to reveal any doubt whether it is accorded with the Constitution or not. There is no reason to ask Constitutional Tribunal for opinions.

There is nothing else in the lengthy article about the Constitutional Tribunal, but it seems somebody at the editor's office wanted to reemphasize that the new Joint Bill Committee is not exercising a constitutional review function. I'm a bit surprised at the negative attitude because the last NLM article I saw about this debate was somewhat more sympathetic to the Amyothat Hluttaw. We'll see if this really is the end of the debate and whether, as NLM so boldly states, there is no reason to ask Constitutional Tribunal for opinions.

Political insurance or human rights?

2011-11-15T00:55:00.001-05:00

According to PhilStar, in an 8-5 vote, the Philippine Supreme Court issued a temporary restraining order (TRO) against the implementation of the Department of Justice's (DOJ) watchlist order (WLO) against former President and current Pampanga Representative Gloria Macapagal-Arroyo. As I mentioned last week, cynics might suspect the justices of simply protecting their patron. However, freedom travel is an human right protected by the International Covenant for Civil and Political Rights (remember the refusniks in the former U.S.S.R.).

For politicians, this dual nature of the justice system presents a delightful irony. The very way courts act to protect former political leaders necessitates their invoking constitutional rights. Thus, the very political leaders who often violated their citizens' human rights become amongst the first to hide behind them when out of power. In political science, we'd call this a severe case of observational equivalence - when we can't tell whether the court is acting in good faith or with political motives.

A visit from big brother

2011-11-14T00:32:00.001-05:00

While The New Light of Myanmar often reports on foreign delegations, it's not often that the exchange focuses on judicial affairs. Yesterday, a delegation from China arrived led by Bai Jingfu, Deputy Director of the Internal and Judicial Affairs Committee of the National People's Congress. He was in Naypyitaw met by Chairman of the Pyithu Hluttaw Judiciary and Legal Affairs Committee Thura U Aung Ko.

I'd only heard rumors before that Burma was looking to China as a model for governance, but this latest report might suggest an actual exchange. While still authoritarian, China's government has improved the capacity and efficiency of its judicial system, so Mr. Bai might have insights to share. On the other hand, China's Communist law system is (or should be) very different from Burma's common law heritage. I'd love to see what they end up discussing. Sadly, I doubt we'll see leaks from their meetings reported in NLM anytime soon.

I've reprinted the brief news clipping below:

Chinese Dy Director of Internal & Judicial Affairs Committee of NPC arrives

NAY PYI TAW, 13 Nov - A Chinese delegation led by Mr. Bai Jingfu, Deputy Director of the Internal and Judicial Affairs Committee of the National People’s Congress of the People’s Republic of China, visited Maha Myatmuni Buddha Image and U Pein Bridge in Mandalay this morning.

They left Mandalay this evening by air for Nay Pyi Taw. They were seen off at Mandalay International Airport by Deputy Speaker of Mandalay Region Hluttaw U Aung Htay Kyaw and members.

The Chinese delegation was welcomed at Nay Pyi Taw Airport by Chairman of Pyithu Hluttaw Judiciary and Legal Affairs Committee Thura U Aung Ko, Chairman of International Relations Committee U Hla Myint Oo and officials.-MNA

Hostage to a metabolic bone biopsy

2011-11-09T00:41:00.002-05:00

I don't often write about "metabolic bone biopsies" on my blog. However, that's the procedure former Philippine president Arroyo needs, and that's what the Aquino administration Justice Department is seeking to deny her. Or so Arroyo claims. Secretary of Justice Leila de Lima issued a watchlist order against Arroyo to prevent her and her husband from fleeing the country while facing plunder and poll fraud charges. According to PhilStar, Arroyo has challenged the WLO as impairing her constitutional right to travel (Article III, § 1 and 6) and filed suit before the Supreme Court. It will be particularly interesting to see how the Supreme Court rules, given the hostility between it and the Aquino administration. Moreover, 12 of the 15 justices are Arroyo appointees, which as I wrote last year became controversial as Arroyo managed to appoint the chief justice. I guess we'll see whether the Philippine Supreme Court provides that political insurance Arroyo had been banking on.

The Court judges itself

2011-11-08T10:24:00.006-05:00

A few times this fall I've reported that the Indonesian DPR passed legislation stripping the Mahkamah Konstitusi of much of its jurisdiction. Well, it turns out that the Court ruled the law unconstitutional and returned those powers to itself. It's a fascinating case of constitutional courts expanding their own jurisdiction, arguably much bolder than Marbury v. Madison because the Court's jurisdiction is nominally based on the 2003 Constitutional Court Law, not the 1945 Constitution itself. I've reposted The Jakarta Post article below because it's worth reading in full:

Justices restore court’s power

Ina Parlina, The Jakarta Post, Jakarta | Wed, 10/19/2011 8:10 AM*

The Constitutional Court revived its authority on Tuesday after annulling the latest additions in the newly revised law that had limited its powers of judicial review.

The court annulled 16 clauses in 10 articles from the 2011 Constitutional Court Law on Tuesday, including a controversial article that had stripped its authority to issue ultra petita verdicts — those that are beyond requests in a review case.

“If it concerns public interests, Constitutional Court justices should not only be fixated on a petition,” justice Akil Mochtar said during the hearing, adding that ultra petita was commonly used by constitutional courts in many countries.

He added that the argument claiming the bench had abused its power by delivering an ultra petita ruling was wrong.

“Institution of constitutional review, first born in the United States in 1803, was beyond what was requested by the plaintiff,” said Akil.

The House passed a second revision of the Constitutional Court Law in late June that includes significant changes to the court’s authority. The revision has widely been perceived as significantly limiting the bench’s authority and posing a potential threat to the court’s independence in handling future cases.

Aside from barring the court from delivering the ultra petita verdicts, the revisions also did not allow the court to change articles in a law and also put the court under the oversight of the House of Representatives, the government and the Corruption Eradication Commission (KPK).

Petitioned by a coalition of NGOs, a judicial review concerning the controversial articles was filed a week after the law’s enactment.

An individual named Fauzan also filed another judicial review against the ultra petita and the authority to change articles in a law.

Akil said the absence of the authority to change articles in a law would reduce the court’s flexibility in a review case.

“[The article] constraints the court to test the constitutionalism of norms,” he said.

He further argued that in cases that the court had annulled legal articles, there would be “an absence of law” if such arrangements are not available.

With Tuesday’s verdicts, the court has regained all of its authority prior to the second legal revision.

The court only rejected an article concerning the maximum age of a court justice.

It has kept the article that rules that court justices must be 47 at the youngest and 65 at the oldest.

Wahyudi Djafar from the Institute for Policy Research and Advocacy (Elsam), which is also a member of the coalition, said that Tuesday’s ruling was not only a victory for Indonesian democracy, but also proof of how poorly the House had performed in carrying out its legislative function.

“It is obvious that the House never tried to draft an appropriate regulation,” Wahyudi told The Jakarta Post after the hearing.

“Since the reformation era, they always try to hinder our democratic process in terms of establishing a good law as its foundation, including stripping citizens’ constitutional rights in the revision of law.”

Wahyudi admitted, however, that ultra petita authority had both positive and negative attributes.

“But you must see the bigger picture. Most of the cases concern public interests. It is for the greater public good not to harm or benefit only one side.”

The court’s recent ruling, which stated that Busyro Muqoddas should retain the position of chairman of the Corruption Eradication Commission (KPK) for the next four years, is an ultra petita ruling from a review of the 2002 KPK Law.

The plaintiff asked the court to clarify the definition of the KPK leaders’ four-year tenure and whether it is possible to replace someone such as Busyro.

The court also restored its authority to use laws other than the Constitution in their consideration in delivering a ruling.

“However, in certain cases the bench must see all laws as one system where laws should never overlap each other,” Akil said, adding that the new provision would only be an obstacle.

* Wow, I'm surprised I missed this article! Actually, I'm not because I was at an all-day conference on October 19, but still it's an important one.

The Lady and the Libel suit

2011-11-08T10:03:00.002-05:00

According to The Myanmar Times, Daw Aung San Suu Kyi is filing a libel suit. Not as one might think against the government and its years of slandering her, but rather against her brother, U Aung San Oo. The two notoriously don't get along and have disputed ownership of Daw Suu's house on 54 University Ave. Recently, U Aung San Oo published an article in the Monitor in which he claimed that he won the dispute, even though the more recent case hasn't been resolved. The Rangoon Region High Court decided to accept the case last week.

The case is interesting for two reasons. First, I think this is the first time a court has accepted a lawsuit initiated by Suu Kyi herself. Second, as I've mentioned before, Southeast Asian leaders love libel law (how's that for alliteration). I don't think Suu Kyi is coming anywhere close to Lee Kuan Yew, but I also haven't heard her talk about the role of libel law in political life. How far would she go in balancing the right to information with the right to privacy? If I have another chance to ask her questions, I'll try to get that one in.

"It's not my fault!"

2011-11-07T10:42:00.003-05:00

In responding to the recent spate of acquittals by Indonesia's regional corruption courts, Chief Justice Mahfud echoed Han Solo from Star Wars by proclaiming that the Constitutional Court was not to blame. According to The Jakarta Post, Chief Justice Mahfud clarified that the Court's 2006 decision finding the central Corruption Court in Jakarta unconstitutional was not an invitation to establish regional corruption courts. The chief justice described the regional corruption court judges as tending "to acquit corruptors. They think corruption is something normal." Ultimately, he recommended that they be dissolved and a return to a centralized corruption court in Jakarta.

I admit I haven't followed the details of all of these acquitted cases, but it's always struck me as odd that Indonesians view the Corruption Commission's (KPK) nearly 100% conviction rate as not only normal but good. While the KPK surely filters cases to find the strongest ones, it's still hard to believe that it wins EVERY time. The numbers appear almost Stalinist. Indeed, some commentators have questioned whether the courts aren't simply punishing bad judgment calls in some cases. Of course, an acquittal of a guilty defendant is nothing to praise, but it also might be time to rethink that 100% conviction rate.

Burma learns about Joint Committees

2011-11-07T10:31:00.002-05:00

After the dispute last week between the Pyithu and Amyotha Hluttaw chambers, one MP proposed a joint committee to discuss the proposed Constitutional Tribunal bill. As far as I am aware, this is the first major dispute between the two chambers and it's interesting to see how they try to work through the problem. Here is a quote from a New Light of Myanmar article reporting on the proposal:

One proposal and one bill were submitted today.

At proposal submission session, Daw Khin Waing Kyi of Yangon Region Constituency (1) submitted the proposal “to form a joint committee with equal number of representatives from Amyotha Hluttaw and Pyithu Hluttaw under Amyotha Hluttaw Rules 76(a) and a commission and committees, if necessary, with Hluttaw representatives and/or appropriate citizens under Amyotha Hluttaw Rules 81 regarding the proposal to appeal against and reverse the resolution of sending bills approved or deemed to be approved by Pyidaungsu Hluttaw to the Constitutional Tribunal of the Union to vet whether the bill is in conformity with the Constitution if doubted before sending it to the President to sign and promulgate it as law made at 44th day second regular session of first Pyidaungsu Hluttaw on 28 October 2011 as the resolution is not accorded with the Constitution and Pyidaungsu Hluttaw Law and Rules”.

The Hluttaw decided not to discuss the proposal.

More NLM commentary

2011-11-04T14:25:00.001-04:00

More The New Light of Myanmar commentary on the Constitutional Tribunal proposal:

Second regular session of first Pyithu Hluttaw continues for 45th Day

One new proposal submitted and discussed, one bill sought for approval

NAY PYI TAW, 3 Nov - The 45th day session of the Pyithu Hluttaw was held at Pyithu Hluttaw Hall of Hluttaw Building here at 11.10 am today, attended by Speaker of Pyithu Hluttaw Thura U Shwe Mann and 380 repersentatives.

At today’s session, one new proposal was submitted and discussed and one bill was sought approval from the Hluttaw.

First, Speaker Thura U Shwe Mann said that he heard that Amyotha Hluttaw yesterday discussed the resolution of Pyithu Hluttaw on 1 November.

The constitution included two Hluttaws- Pyithu Hluttaw and Amyotha Hluttaw - of same rank and power so that the Hluttaws could participate in procedures for reciprocal control, check and balance, he added. The difference of views and opinions between the two Hluttaws was normal, and when the two Hluttaws had a different views and opinions, they should bring the issue to the Pyidaungsu Hluttaw to seek the resolution of Pyidaungsu Hluttaw, he said. He continued to say that they had not considered that the processes at Pyithu Hluttaw and Amyotha Hluttaw after October- 28 meeting of Pyidaungsu Hluttaw did not damage the integrity of Pyidaungsu Hluttaw, Pyithu Hluttaw, Amyotha Hluttaw and integrity of representatives of Pyidaungsu Hluttaw including the Speaker of Pyidaungsu Hluttaw, and it could be assumed that they improved their integrity.

It should be considered that the discussions at the Hluttaw were made in accordance with rules and regulations to be able to obey the State Constitution right. They should consider that the issues at the Hluttaws did not meant to damage the integrity of someone and integrity of the Hluttaws, and the issues happened to improve the integrity of the Hluttaws, Hluttaw representatives and Speakers of the Hluttaws, he said. If they reviewed the previous issue, it could found that Myanmar had practiced reciprocal control, check and balance process, showing that though other groups pointed out that the country had not yet completely applied the democratic system, It was witnessed that there were chances to openly discuss issues at Hluttaws, improving the integrity of the Hluttaws, he said.

He continued to say that as they believed that discussion of Hluttaw representatives were made to improve the integrity, they would continue to carry out their tasks right in accordance with the law and rules. However, if misinterpretation happened, it was needed to know that there was different view between Pyithu Hluttaw and Amyotha Hluttaw, he said. However, what all should know was that that was not a quarrel, and a Union Minister was present at today’s session, he, on behalf of the Union Government, could hear that they were working at the Hluttaw with good will, he said.

A constitutional amendment already?

2011-11-04T13:08:00.002-04:00

It seems Burma's new politicians are in a mood for tinkering with the 2008 Constitution. Members of the ruling Union Solidarity and Development Party have proposed a constitutional amendment that would allow government MPs to serve concurrently in the Hluttaw and in the executive. According to Irrawaddy, the current push is being driven by USDP hardliners, including ex Brig-Gen Thein Zaw, ex Col Aung Thaung, ex Maj-Gen Khin Aung Myint, currently the speaker of the Upper House and of the combined Union Parliament, and Zaw Myint Pe.

I'm actually a bit surprised that this is the first constitutional amendment proposal that seems to have serious backing. After all, the prohibition on MPs serving in government is pretty clear and unambiguous in the constitution. If key stakeholders had not wanted it, why didn't they lobby to change it before the elections? One possibility is that this is a tactical move geared at reducing the number of seats contested in by-elections later this year. As it currently stands, there are 70 constituencies now open because of appointments to the executive branch. Some observers view these elections as an opportunity for Aung San Suu Kyi and the National League for Democracy to join the government. As such, the amendment might simply be an attempt by hardliners to forestall that possibility. Still, it's remarkable that all of this is playing out in the language of legislative and constitutional change!

NLM on Constitutional Tribunal bill

2011-11-03T12:37:00.004-04:00

The New Light of Myanmar published its side of the controversy over the Constitutional Tribunal bill. It actually tells a pretty different story and is sympathetic to Khin Aung Myint's attempt to get the bill passed. Moreover, this article makes it sound like there' still hope for the bill. Here it is (for those of you who don't read NLM daily, I warn you that the writing style can be dreadful):

Second regular session of Amyotha Hluttaw continues for 44th day

One proposal submitted, two bills approved, distribution of rules, notifications

reported to Hluttaw, clarifications made on questions, proposal, bills

NAY PYI TAW, 2 Nov- The 44th day session of the Amyotha Hluttaw was held at Amyotha Hluttaw Hall of Hluttaw Building here at 1 pm today, attended by Speaker of Amyotha Hluttaw U Khin Aung Myint and 209 Amyotha Hluttaw representatives.
At today’s session, one proposal was submitted, two bills were approved, distribution of rules and notifications were reported to the Hluttaw, and questions proposals, bills raised and submitted during the second session were clarified.

In the proposal submission session, Daw Khin Waing Kyi of Yangon Region Constituency No. 1 submitted a proposal to support sending bills approved or deemed to be approved by Pyidaungsu Hluttaw to the Constitutional Tribunal of the Union to vet whether the bill is in conformity with the Constitution if doubted before sending it to the President to sign and promulgate it as law, and to object a proposal which has approved to overturn the issue at Pyithu Hluttaw.

Regarding the proposal, Speaker of the Amyotha Hluttaw said that representatives of the Amyotha Hluttaw phoned him for they were deeply unhappy with the decision of Pyithu Hluttaw to approve the important proposal submitted by Secretary of Hluttaw Rights Committee Dr Soe Yin during the 44th day session of the Pyithu Hluttaw. When a proposal was submitted to Amyotha Hluttaw the same day to discuss the proposal approved by the Pyithu Hluttaw, he had to consider whether the proposal related to works of Speaker of the Pyidaungsu Hluttaw should be an important one or not in accordance with the Amyotha Hluttaw Rule 133. A proposal should be considered as an important one when it was a current important issue concerning with the people, he said. The discussion at Pyithu Hluttaw had damaged the integrity of Speaker of the Pyidaungsu Hluttaw, and as it was reported to clarify the issue immediately, the proposal was allowed at Amyotha Hluttaw today as an exception and the proposal would be sought for approval at Amyotha Hluttaw, he said. He seek the approval of Amyotha Hluttaw and the Hluttaw approved the proposal.

He continued to say that he had to seek the approval of the Hluttaw, because he was worry that if he had not sought approval of the Hluttaw, it could be consider that the proposal was agreed at the Hluttaw as it was related to the integrity of the Speaker of the Hluttaw. Though the proposal was agreed to discuss at the Hluttaw, the proposal should be discussed wisely and legally not to damage others when it was considered as incorrect issue during the discussion, he warned.

As the proposal was submitted and discussed immediately at Pyithu Hluttaw and the measures were carried out in the absence of the Speaker of the Pyidaungsu Hluttaw, he did not know the full discussion of the seven Pyithu Hluttaw representatives supporting the proposal, he said. However, he would like to tell what he heard about the discussion made at Pyithu Hluttaw and he carried out his duties as the Speaker in accordance with the law. His explanation meant that as he had to report on what should be known to the Hluttaw honestly and it was absolutely neither a reaction nor organizing others for counter reaction because the Speaker of the Pyidaungsu Hluttaw was also the Speaker of the Amyotha Hluttaw, he said.

Regarding the duty and rights of the Speaker of Pyidaungsu Hluttaw, Rule 8 (d) of Pyidaungsu Hluttaw stated that supervising the procedures of the Hluttaw to be in conformity with the constitution, the Hluttaw law and rules and the Rule 17 (d) of the Pyithu Hluttaw also stated the duty and rights of the Speaker are same as the Speaker of Pyidaungsu Hluttaw, he said. Besides, he pledged to protect and preserve the constitution when he swore as a representative of the Hluttaw and as the Speaker, and therefore, the Speaker had to carry out his duties carefully to scrutinize all procedures of the Hluttaw whether they were accorded with the constitution or not.

He continued to say that he had to decide whether all questions, proposals and bills were accorded with the constitution or not, and when he has doubt, he must seek the interpretation, resolution and opinion of the Constitutional Tribunal. That was the duty of the Speaker to be carried out during the period before a bill was
discussed to completion, he added.

Because, the Article 324 of the Constitution stated that “ the resolution of the Constitutional Tribunal of the Union shall be final and conclusive.” Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw had no rights to decide over Interpretation regarding the constitution, he said. Therefore, he, the Speaker, performed his duty as much as he could and as he carried out his tasks in accordance with the Rule, there was no need to seek approval of the Hluttaw.

It was a procedure to seek resolution of the Constitutional Tribunal when there was doubts if issues were accorded with the constitution or not, and to help the future generation understand the procedure, the Speaker asked the opinion of Pyidaungsu Hluttaw on 28 October and it was understood that the issue was not a proposal.

It could find in the record that there was no word of “proposal” in the speech of the Speaker and the Speaker told that “Joint Bill Committee will be assigned duty to scrutinize the bills before they were sent to the President to sign the bills approved or deemed to be approved by the Pyidaungsu Hluttaw in accord with Section 105, subsection (1) of the State” and the Speaker continued to read the Article 198 (a) of the constitution stating effects of the laws.

The Article 198 (a) states that “if any provision of the law enacted by the Pyidaungsu Hluttaw, the Region Hluttaw, the State Hluttaw, the Leading Bodies of the Self-Administered Division or the Self-Administered Zone, or any existing law is inconsistent with any provision of the Constitution, the Constitution shall prevail”, he said.

The Speaker explained that when the Pyidaungsu Hluttaw sends the bill to the President to sign and promulgate as law after the Pyidaungsu Hluttaw approved to prescribe as law, the President can task Constitutional Tribunal of the Union for vetting which will return with remarks if there is some points deviated from the Constitution. So, the Hluttaw which has to safeguard the Constitution will be disparaged. Although the Hluttaw prescribed the law and the President promulgated it, provisions which are inconsistent with the Constitution will become laws which are not needed to be abided under Section 198 Sub-Section (a) of the Constitution.

When scrutinized by the Joint Bill Committee, it is found that the bills are needed to send to the Constitution Tribunal of the Union for vetting under Section 322 Sub-Section (b) of the Constitution.

The Speaker asked three times whether the Hluttaw agree to send bills approved by the Pyidaungsu Hluttaw or deemed to be approved by the Pyidaungsu Hluttaw to the Constitutional Tribunal of the Union for vetting, if doubted, whether the bills are consistent with the constitution before sending the bills to the President to sign and promulgate it as laws. As the Hluttaw agreed, the Pyidaungsu Hluttaw announced that Pyidaungsu Hluttaw decided to send the bills approved by the Pyidaungsu Hluttaw or deemed to be approved by the Pyidaungsu Hluttaw to the Constitutional Tribunal of the Union for vetting, if doubted, whether the bills are consistent with the constitution before sending the bills to the President to sign and promulgate it as laws.

It is not needed to seek opinion of the Hluttaw for the case. But, the Speaker did to perpetuate it as a procedure. Pyidaungsu Hluttaw Rule 8 Sub-Rule (u) suggests that“if cases beyond these laws happen or if there is a difficulty to carry out in accord with these laws, seeking decision of the Hluttaw to resolve the difficulties” is the duty of the Speaker. Although it could be done by the Speaker alone, it was done that acquiring the opinion of the Hluttaw was assumed to be more appropriate. No person submitting, seconding and discussing the proposal and no voting is needed as it is not the proposal.

The Speaker said that he knew that failing to ask whether there is person who disagrees the case after asking whether there is person who agrees the case drew criticism. There is no provision for asking whether there is person who agrees it three times or asking whether there is person who disagree it. It is adopted as a practice.

When each word or paragraph of the bill is approved in Amyotha Hluttaw, the latter is asked for certainty as it is important. In deciding whether the proposal should be discussed, only the former is asked for three times. There is example that U Ohn Tin was given the chance to discuss as he say no to the question whether there is person who agrees the proposal there times regarding the educational proposal in Amyotha Hluttaw. The fact of losing rights of Hluttaw representatives is concerned with the practice of their own Hluttaw as the Hluttaw representatives can say no when asked whether there is person who agrees it.

Regarding the case, Pyithu Hluttaw send a letter dated 1 November. What the Speaker assumed is that the case should be heard by a Joint Committee/Commission formed by the Pyithu Hluttaw Speaker and outside and respective law experts as it is the case to decide whether the act of the Speaker is right or wrong. It was not expected that the case of Pyidaungsu Hluttaw was submitted as the important proposal, discussed immediately and made decision. So, Amyotha Hluttaw representatives took time to discuss the case as the proposal deciding whether it is appropriate.

Answers of some Pyithu Hluttaw representatives to foreign radio stations were heard. Decision of the Pyithu Hluttaw only is not assumed to be true. That is why the country is practicing bicameral parliamentary system. It is incomplete answer as long as the Pyidaungsu Hluttaw formed with both Hluttaws approved it.

Some say that the system governed by person has been shifted to the system governed by principle. Assumption of duties of the Speaker honestly and abiding laws and rules to extend possible needs to be explained. If there is defamation against the Speaker with incomplete decision, the Speaker can impose punishment.

Though, the Speaker took no action with broad mindset upon ignorance.

If the case is submitted to the Pyidaungsu Hluttaw as the proposal, the Speaker will not allow the proposal as it is the proposal which deters right action of the Speaker. It will be heard by Joint Committee or Committee jointly with respective law experts. The Speaker is ready to obey if the committee concludes that the action of the Speaker is wrong.

As the bill is approved in the Pyidaungsu Hluttaw as it is prescribed, it means prescribing. When the President signs the bill, it means Promulgation. The difference should be known clearly. There is argument that the Constitutional Tribunal can only vet the prescribed laws. The law sent by the Pyidaungsu Hluttaw can be scrutinized by the tribunal before promulgation as law by the President. So, the Pyidaungsu Hluttaw can send the approved bill to the tribunal for vetting. In addition, the Speaker has the right to send the bill to the tribunal if doubted on receipt.

The Section 80 Sub-Section (e) of the Constitution about discussion and decision regarding the undertakings of Pyidaungsu Hluttaw is concerned mostly with the sending of messages of condolences and of felicitations and not concerned with the duties of the Speaker.

The sending of bills which are doubted whether these are consistent with the constitution is not putting the legislation power of the Hluttaw under the tribunal. It is needed to notice the phrase “if doubted”.

The tribunal can only make remarks and decisions regarding the sections that are in violation with the constitution and is not authorized to restrict the formulation of that law.

Law-makers should not think that to seek the remarks of the constitutional tribunal of the state is a dishonorable act.

To err is human and the speaker is no exception. It is actually the act of seeking assistance from the tribunal, assuming responsibility for making no mistakes in the constitution. The explanation is made for none other intentions but because it is learnt that Amyotha Hluttaw representatives are displeased.

Regarding the proposal, Hluttaw representatives U Paul Liang Lwin of Chin State Constituency No. (9), U Zaw Myint Pe of Mandalay Region Constituency No (5), U Hla Swe of Magway Region Constituency No (12), U Khin Maung Yi of Ayeyawady Region Constituency No (6), Dr Tin Shwe of Yangon Region Constituency No (6), U Sai Paung Nap of Shan State Constituency No (12), Dr Myint Kyi of Yangon Region Constituency No (8), Dr Myat Nyana Soe of Yangon Region Constituency No (4), U Zone Hle Htan of Chin State Constituency No (2), U Phone Myint Aung of Yangon Region Constituency No (3), U J Yaw Wu of Kachin State No (12), Dr Aye Maung of Rakhine State Constituency No (1), Dr Banya Aung Moe of Mon State Constituency No (7) and U Win Naung of Yangon Region Constituency No (5) held a discussion that Hluttaw representatives, being the representatives of the people, have to adhere to the provisions of the constitution and stand by the interests of the people. Laws cannot cover all the issues in the real world. There is no provision that Pyithu Hluttaw and Amyotha Hluttaw can reconsider and object what is passed by the Pyidaungsu Hluttaw. It should be viewed that the speaker is using his rights honestly however it should not be considered that the decision of the Pyithu Hluttaw is not in conformity with the law. All are Hluttaw representatives and the two Hluttaws are brother Hluttaws which the same rights.

All representatives should be patient, acting out of reasoning power.

As the nation in the initial stage of democratization and democratic practices, all should collectively find a solution to the case. Both the Hluttaws are working for the nation and the people, and the Pyidaungsu Hluttaw Speaker and the Amyotha Hluttaw Speaker are urged to play a leading role in seeking the reasonable solution in unison.

The case, if handled with understanding and cooperative attitudes, is not a problem but turns out to be a lesson.

The proposal of Daw Khin Waing Kyi is approved by all the representatives.

In bill-passing session, Member of Bill Committee U Myint Tun explained analysis report of the Bill Committee concerning the proposal of U Paul Liang Lwin of Chin State Constituency No (9) to amend the Paragraph 12 (f) of Chapter (4) and the Hluttaw approved the bill paragraph by paragraph.

The Hluttaw approved amendments to Paragraph 2 (k) of Chapter (1), Paragraph 9 (e), (f), Paragraph 10 (i), and Paragraph 12 (f) of Chapter (4), Paragraph 35,
Paragraph 39 (c), Paragraph 40, Paragraph 41, and Paragraph 42 of Chapter (9), Paragraph 55 of Chapter (11), paragraph 63, paragraph 67, Paragraph 68, Paragraph 69, Paragraph 70, Paragraph 71, and Paragraph 72 of Chapter (14).

As no representatives raised objection to the amendment of the Bill Committee concerning Paragraph 12 (f) of Chapter (4) of Region or State Bill, the Hluttaw approved the amendment.

In informing-to-Hluttaw session, it is informed to the Hluttaw that Hluttaw representatives, upon finding that the rules, or a particular regulation or principle are not in conformity with the provisions of the law concerned, can propose to the Hluttaw to revoke or amend those rules, or particular regulation or principle within 90 days starting from the date of issue of those rules, or particular regulation or principle. If not, it is to be assumed that the rules, or regulation or principle are approved.

Amyotha Hluttaw has distributed Constitutional Tribunal Rules to Hluttaw representatives on 19 August, Cultural Heritage Sites Protection Rules on 2 September, Notification No 39/2011 about Land Rights concerned foreign investment law of the Republic of the Union of Myanmar on 18 October, Notification No 40/2011 about Foreign Currency, Rules amending Intoxicant Rules on 25 October, and Union Civil Service Board rules on 27 October.

In clarifications of Hluttaw’s actions session, the Amyotha Hluttaw Speaker explained actions of the Hluttaw in response to questions, proposals, and submitted bills of the Hluttaw representatives.

The Speaker said that Hluttaw representatives raised a total of 283 asterisk questions in the second regular session of the First Amyotha Hluttaw , which were replied by the members of the Union-level institutions. 85 unmarked questions raised by 36 representatives in letter were replied by the ministries concerned and answers have been sent to the representatives.

Amyotha Hluttaw representatives submitted 46 proposals-43 were originally submitted as proposals, and the other three turned from questions to proposals. Amyotha Hluttaw approved 33 out of 46.

After committees concerned have read out the questions and proposals in details, guarantees, promises and responsibilities of the government will be put on record.

Union level institutions delivered eight bills and Amyotha Hluttaw representatives two, totaling 10 to Amyotha Hluttaw for further proceeding. Pyithu Hluttaw delivered seven bills to Amyotha Hluttaw, seeking approval or amendment of those bills from the letter.

The Amyotha Hluttaw Speaker then explained delivery of each bill to the Pyidaungsu Hluttaw and Pyithu Hluttaw and their replies and follow-up works.

Today’s session came to an end at 4.20 pm and the 45th day session will resume when Pyithu Hluttaw sends the bills initially discussed at the Amyotha Hluttaw back to Amyotha Hluttaw.-MNA

No abstract review for you

2011-11-02T16:55:00.004-04:00

I'm still waiting to see if and when the Burmese Constitutional Tribunal hears its first case. In the meantime, I did come across a fascinating bit of news related to the tribunal. It appears the Upper House (Amyotha Hluttaw) passed a bill that would have required the tribunal to vet all new laws for conformity to the 2008 Constitution. According to Irrwaddy, the Lower House (Pyithu Hluttaw) rejected the measure. It's not clear from the article whether this rejection was due to policy or process disagreements. I haven't seen any mention of it yet in The New Light of Myanmar. Interestingly, this seems to have been a move by conservatives to restrain "reformist" impulses. The main proponent of the bill, Amyotha Hluttaw Speaker Khin Aung Myint, is seen as falling in the "hardliner" camp and may have proposed mandatory constitutional review as a means of limiting the power of reformers in the Pyithu Hluttaw. The coalition supporting the Lower House bill is quite interesting (according to Mizzima):

The bill was discussed and supported by Rakhine Nationalities Development Party MP Ba Shein of Kyaukpyu constituency; Union Solidarity and Development Party (USDP) MP Thein Swe of Ann constituency; Shan Nationalities Democratic Party MP Nan Wah Nu of Kunhing Constituency; and Unity and Democracy Party MP Dwe Bu of N’Jangyang constituency.

This debate might give us an idea of what the tribunal's first case might look like and how elites expect it to rule...

Time for marriage counseling

2011-10-16T00:05:00.000-04:00

Harsh words were recently exchanged between between the Philippine Supreme Court and Malacanang over the Aquino administration's plan to "reduce" the judiciary's budget (see my most recent post on the controversy here). The Philippine Judges Association has come out yesterday to express their support for Chief Justice Corona. For his part, the chief justice said, "There is no intense quarrel happening. I'm just setting things straight." Eastern Samar Representative Ben Evardone has urged both parties to convene the Judicial Executive Legislative Advisory and Consultative Council (JELACC) in order to work through their differences. It's not yet clear whether most of this debate is hollow posturing or whether the animosity could actually affect the Court's work. Stay tuned...

Now the Philippine Supreme Court is "our only hope"...

2011-10-11T19:01:00.000-04:00

Marites Danguilan Vitug has another book out about the Philippine Supreme Court, this time about some of the court's most progressive and hopeful cases. Asia Sentinel has a review here. I haven't read the book yet, but have placed my order. I'll be sure to report on it once I finish.*

* Incidentally, my book review of Vitug's Shadow of Doubt has been accepted for publication, but the journal hasn't published it yet, so I can't share it until they do.

Just say no

2011-10-10T13:06:00.000-04:00

The Jakarta Post has an interesting profile of David Tobing, a consumers' rights lawyer. Tobing's latest crusade is to stop companies from sending unwanted cellphone text messages. Alas, lawyers with Tobing's zest seems to be a rare breed in Indonesia, as even the response of the Indonesian Consumer Protection Foundation in the article would indicate.

Burma's HR Commission now open for business

2011-10-10T13:02:00.000-04:00

According to DVB, Burma's new Human Rights Commission is now accepting complaints. It's perhaps somewhat surprising that the commission will hear and decide actual cases, however it is in line with President Thein Sein's mini-glasnost. Cases already filed in the regular courts will not be transferred, but from this point on the commission should be the primary point institution for human rights cases. Some critics worry that the commission will essentially act as a Trojan horse, turning on complainants once they reveal themselves to the commission. Indeed, Burma's courts have often "blamed the victim" by allowing government officials to countersue complainants for defamation (the Su Su New case was a particularly blatant example of this). However, the commission could also represent the new government's attempt to bypass the corrupted judiciary completely.

In other interesting news, the Pyithu Hluttaw passed a law that would allow peaceful protests. Interestingly, according to Myanmar Times, the Hluttaw Bill Committee struck down one amendment for not conforming to the 2008 Constitution. This might be a sign that this committee will begin exercising legislative constitutional review even before cases reach the Constitutional Tribunal.

Long wait for Marcos

2011-10-01T13:17:00.000-04:00

PhilStar has an interesting article about the long delay in resolving the graft cases against Marcos. Some of the cases still haven't been resolved after all these years. The Supreme Court seems to take even longer to resolve cases appealed from the Sandiganbayan, taking an average of six years and sometimes as long as 21. For more details click here.

More Money Madness

2011-09-30T11:01:00.000-04:00

The Philippine Supreme Court and Aquino administration are at odds again, this time over money. First, the administration cut the judiciary's proposed budget in half, from P 27.1 billion to P 14.65 billion. Now, according to PhilStar, the administration is seeking to set aside P 1.98 billion for a new Miscellaneous Personnel Benefits Fund (MPBF). The judiciary - through spokesman Marquez - has lambasted the shortchange as a violation of the constitution as the government cannot reduce the court's budget. Allies of former president Arroyo, including Senator Joker Arroyo, have criticized the Aquino administration's actions. It's an unfortunate development in that now the judiciary seems to have to fight for its budget every year, which could drain the court's resources and undermine the justices' willingness to make difficult rulings.

Judicial facelift

2011-09-19T23:39:00.000-04:00

The Indonesian Supreme Court recently issued a regulation that would organize the court into five chambers and permit consultations on cases within chambers. According to Sebastiaan Pompe in The Jakarta Post, the Court is framing this reform as a way to handle its caseload. However, Pompe rightly questions whether separate chambers will improve the quality of adjudication. In particular, he notes that the regulation will allow religious judges to sit on civil cases, including complex commercial transactions. Moreover, nothing in the regulation mentions giving the Court the power to refuse to hear cases, even though that particular reform does seem to have been discussed in the DPR. Sadly, Pompe concludes that this new regulation might simply be a way for the Supreme Court to extend its control over lower court judges.

A new issue for Myanmar's Supreme Court - the environment

2011-09-19T16:10:00.000-04:00

I've often mentioned Myanmar's Supreme Court on this blog in the context of judicial independence and political opposition. Recently, several Burmese environmentalists and politicians brought a petition before the Court asking it to halt the Myitsone Dam in Kachin State. It seems the plaintiffs are asking the Court to order the government to release more information about the proposed impacts of the dam (writ of quo warrant) and to halt construction of the dam until a cost-benefit analysis is conducted (writ of prohibition). According to Mizzima, independent MP Win Cho said, “If MPs cannot get real information about the Myitsone Dam construction and the possibility of the extinction of Irrawaddy River before the parliament ends, we will file suit."

I don't recall any other cases in the Burmese Supreme Court quite like this one. However, it does coincide with National League for Democracy leader Aung San Suu Kyi's recent emphasis on environmental issues. Indeed, Joshua Kurlantzick, a fellow at the Council on Foreign Relations, recently proposed that environmental issues would be a safer issue for Burma's political opposition. However, I don't yet have any idea how the Supreme Court treats environmental issues or whether this petition will have more success. While environmental issues might not be as controversial as political prisoners, the political elite will likely not permit challenges to flagship infrastructure projects to be litigated in court.

UPDATE: It seems the government is split on the Myitsone Dam issue as well, with Thein Sein opposing it. Irrawaddy has an article highlighting some of the interesting - albeit heresy - debate.

New Philippine SC justice

2011-09-16T14:20:00.001-04:00

Yesterday, President Aquino appointed Court of Appeals Justice Estella Perlas Bernabe to the Philippine Supreme Court (for more on her background, see this PhilStar article). Aquino's already appointed three justices, but he's not yet at the point of changing the Court's ideological composition. One of the retirees, Carpio-Morales (now the Ombudsman), was a strong opponent of the Arroyo administration and the lone dissenter in de Castro v. JBC. The other was Eduardo Antonio Nachura, who was seen as supporting of Arroyo. All 12 of the other justices were appointed by Arroyo, although some like Carpio have been known to rule against her. Also, few of the other justices will reach the official retirement age of 70 before Aquino's term ends in 2016.

Trials of lawyer

2011-09-12T22:39:00.000-04:00

The Irrawaddy has another rare look at the life of human rights lawyers in Burma. In today's edition, there is short article about Pho Phyu, a lawyer who has worked on several human rights cases in Myanmar, from land confiscation victims to child soldiers. Pho Phyu has been arrested several times, most recently when he failed to appear before the court for a trial hearing. He was released when two of his clients - farmers whose land had been confiscated - raised the money to pay bail.

Unfortunately, there isn't much in the way of political science literature about the role of lawyers in fostering judicial independence. However, Charles Epp (whose books are pictured here) claims activist lawyers are at least as a important as activist judges. The demand side for the rule of law is a critical and often overlooked component.

It's certainly too early to predict anything like a rights revolution in Myanmar. However, it should be interesting to see how Burma's human rights lawyers use the new Constitutional Tribunal - if they do at all.

Less lesse is more

2011-09-02T00:47:00.000-04:00

I've already posted about a few of the ongoing lesse majeste cases in Thailand. What makes Chiranuch Premchaiporn's case worth mentioning is that there's some hope she might win. The judge said several times that this case was "nothing" or "no big deal," strongly implying that he saw no grounds for the prosecution. I'm not that familiar with how judges interact with lawyers and defendants in the courtroom, but those seem like pretty informal comments. New Mandala posted more earlier today.

Wanting Islamic Law

2011-08-30T14:40:00.000-04:00

Greg Lopez at the New Mandala blog points to a startling poll showing that over 70% (71.6% to be precise) of Malaysians would want to replace the Federal Constitution with the Quran. Lopez puts this in the context of an increasingly Islamicized Malaysia, although his conclusions are admittedly alarmist. It actually isn't fairly unusually for Muslims to hold Islamic law in higher regard than their country's constitution. Unlike secular law, Islamic law is religious law and inherently viewed as morally superior. However, this doesn't necessarily mean the average Muslim approves each tenet of Islamic law, or even understand Shariah. In fact, if we look at the rest of the poll, we find evidence for this proposition. Overwhelming majorities of Malaysians support Islamic law, but very few have actually read the Quran, and even fewer claim to understand its verses. In short, we shouldn't read too much into the 70% statistic as it might simply indicate that respondents want a more "moral" law, not the specific provisions of Shariah.

US courts, Thai law

2011-08-29T16:42:00.001-04:00

I've mentioned Thailand's lesse majesty prosecutions. On it's face, it's not clear how Thai legal activists can respond to what many see as out-of-control prosecutions against the Thai elite's enemies. That's why I found it interesting to see a New Mandala blog post about a legal response to lesse majeste - but in a U.S. court! The World Organization for Human Rights has brought a suit against web hosting firm Netfirms, Inc., for releasing the identity of an anonymous poster on a Thai prodemocracy website. According to the complaint, the poster, Anthony Chai, was:

subsequently detained at the Bangkok airport, taken to the Department of Special Investigations, and interrogated about his postings on the website. After finally being released from police custody in Bangkok and returning home to California, Mr. Chai was then interrogated by Thai officials over the course of two days on U.S. soil at a hotel in Hollywood, California. Mr. Chai was later informed by Thai officials that if he returns to Thailand, he will be arrested and charged with violating lese majesté laws.

Unfortunately, I'm not caught up with U.S. jurisprudence on the Alien Tort Claims Act (ATCA) and other human rights law, so I won't hazard a guess as to the outcome. Still, I'll make a few observations. First, unlike in many ATCA cases, the company did clearly take an action that had an impact on the plaintiff. There will probably be no debate over whether the company knew or should have known that Thailand was prosecuting lesse majeste.

That being said, Mr. Chai, a California native, did return to Thailand after making the post and has been released from prison. In fact, the Thai government has warned him it would arrest him on future trips, so Mr. Chai would have to actively return to Thailand in order to suffer further harm. A judge might view this as too speculative to rule on for concrete damages.

Over the next few weeks and months I'll try to follow the case and also get a better sense of U.S. law in this area. I know other U.S. internet firms have been sued on similar legal grounds (such as Yahoo releasing data to the Chinese government about political dissidents). In the meantime, for those interested in learning more, you can download the full complaint here.

Reinstating Lawyers

2011-08-26T12:09:00.000-04:00

In news somewhat related to my last post, the Democratic Voice of Burma reports that several Burmese lawyers who had been disbarred for political reasons are now seeking reinstatement to the bar. The article claims that over 20 lawyers had their licenses revoked since the SPDC came to power in 1988. Aung Thein, a lawyer affiliated with the National League for Democracy, argued, "These lawyers were given prison sentences on political grounds have also lost their licenses – so it’s like we got two separate punishments in just one case."

On the one hand, it's certainly not uncommon for lawyers in other countries to lose their licenses upon being convicted of a crime that reflects upon their moral bearings. However, U Aung Thein's statement makes two points. First, the crimes for which Aung Thein and his colleagues received sentences were political, not moral. If anything, their support for legal rights should speak well to their moral bearings. Second, in Myanmar the government revoked their licenses, rather than a bar association. Moreover, the lawyers did not get a chance to appeal the decision.

Politics aside, the ultimate tragedy may well be that, as one of the disbarred lawyers notes, “[Law] is our career profession – just like teachers. We are not rich people and having lost our lawyers licenses made a lot of difficulties for our survival.”

Change or more of the same?

2011-08-24T23:54:00.000-04:00

The Asian Legal Resource Centre has submitted a statement to the United Nations Human Rights Council criticizing the lack of progress under Myanmar's new parliamentary government. One paragraph deals specifically with the criminal justice system:

Criminal justice: Structural changes to the judiciary under the 2008 Constitution have not been accompanied by any changes, or any evidence of intended changes, in the judicial system's actual operations. On the contrary, it continues to be as closed and obscured from public view as before, perhaps even more so. For instance, at time of writing still no biographies or details have been made known publicly of the new Supreme Court justices, among whom three are believed to have come from the armed forces, two others from the civil administration. Legal professionals have doubts about the background and abilities of these persons, yet they too have no detailed knowledge about them, let alone the opportunity to discuss such matters. Meanwhile, legal professionals also say that the amount of corruption in the system is growing exponentially, as the costs of living rise and more and more judges and lawyers look to whatever opportunities they can to make as much money as they can. In some courts, lawyers estimate that up to 70 per cent of cases are decided in part or whole through the payment of money. This situation will continue to worsen. Simultaneously, no evidence exists to suggest plans for any meaningful reform to the highly abusive and corrupt police force. [emphasis mine].

First thing to note is that I'm not the only person having trouble finding out more about the current Supreme Court and Constitutional Tribunal justices. More substantively, ALRC primarily criticizes corruption within the system. While Myanmar's government has certainly not done nearly enough to tackle corruption, regular readers of this blog will hopefully have come to learn that no Southeast Asian country has a monopoly on judicial corruption. However, if President Thein Sein was serious in his inaugural speech that his administration would combat corruption, one can only hope that somebody on his team looks at best practices from other countries or at least consider establishing a judicial commission to vet judicial nominees and investigate allegations of corruption.

Anwar's last stand

2011-08-22T18:47:00.000-04:00

As the Sodomy II trial of Anwar Ibrahim wraps up, Anwar made a stirring defense that both professed his innocence and lambasted procedural irregularities during the trial. Asia Sentinel has a summary of the defense and the main criticisms of the judiciary. I definitely recommend reading it for anybody interested in Malaysia and its struggle with the rule of law.

Clearing up the backlog

2011-08-21T12:36:00.000-04:00

The Indonesian Supreme Court docket is notorious for its backlog. According to The Jakarta Post, there were 22,315 cases pending before the court just in 2010. Of those, the court only adjudicated 13,885, leaving the rest for the remaining year. Now, the Supreme Court recently announced that it would organize itself into five chambers in order to handle the large caseload and allow judges to develop expertise in particular fields of law. The chambers will cover civil, criminal, religious, administrative, and military law. I certainly hope this reform tames the court's docket. However, the Supreme Court still doesn't possess control over its docket and lacks discretion to reject appeals - the one reform that is almost guaranteed to reduce its caseload.

Blame the victim

2011-08-20T12:36:00.000-04:00

A few months ago, I mentioned an appalling incident in which an Indonesian mob attacked and killed members of a religious minority sect, the Ahmadis. Sadly, the prosecution of the mob leaders has only deepened concern about Indonesia's justice system. While prosecutors managed to obtain three-sixth month sentences for several of the mob, they also prosecuted one of the Ahmadi victims for resisting the mob and refusing police orders orders to leave the scene of the incident. In fact, according to The Jakarta Post, that Ahmadi received a six month sentence, longer than several of the perpetrators of the violence. Of course, local and international human rights groups have decried the sentence, but we'll have to see how the Indonesian government responds. One thing is clear - while the Ahmadiyah is a small sect, how Indonesia treats it has become a huge test of Indonesia's liberal democratic principles.

Appointing Homogeneity

2011-08-17T17:28:00.000-04:00

I've posted several articles criticizing the Philippine Supreme Court. One aspect I haven't covered is the background of the justices themselves. In a new article in the Asian Journal of Comparative Law, Dante B. Gatmaytan and Cielo Magno argue that the justices overwhelmingly come from the same socioeconomic class. In fact, over 75% were graduates of the University of the Philippines. Moreover, all of the presidents since Marcos have drawn from this same pool, with little statistically significant difference between them on most factors.

Interestingly, some groups in the Philippines have proposed raising the threshold for disqualification for applicants to the Supreme Court. The proposal would allow more and more diverse candidates to apply. However, in a speech to the Judicial and Bar Council, Chief Justice Corona rejected the reforms as simply encouraging underqualified to waste the committee's time.

Of course, one underlying question is how much diversity should be on the bench? As Ran Hirschl argues, more so than the political branches of government, judiciaries tend to attract lawyers with elite, non-populist backgrounds. Moreover, when political leaders face pressure from the bar and legal advocates, they also face pressure to appoint highly qualified individuals. These requirements already impose several filters on the types of individuals who reach the supreme court. Indeed, on the U.S. Supreme Court, despite the increased gender and racial diversity, all of the sitting justices attended Harvard or Yale...

(Dissolve) Party Time

2011-08-03T18:13:00.001-04:00

A few weeks ago, I'd mentioned a report about changes to Indonesia's Mahkamah Konstitusi. In particular, the legislature passed a law stripping the court of its jurisdiction over election disputes, particularly dissolution of political parties. (Of course, this very function has been at the heart of Thailand's constitutional politics recently). Now, some Indonesians seem to be rallying in support of the court. According to The Jakarta Post, Pong Harjatmo, a former actor, has asked the Constitutional Court to strike the law down. Pong alleges that, "The people vote for a political party during elections. But after the party wins and gains political control, the people seem to lose the right to control the parties"

This presents an interesting question about the relationship between democracy and judicial review. Many Western scholars bemoan judicial review as an undemocratic constraint on the popular will. However, in many cases, courts have acted to enforce rights that elected governments chose to ignore. Of course, one such case is the U.S. Supreme Court's decision in Brown v. Board of Education to abolish segregation. Now, it seems some Indonesians hope their Constitutional Court can play a similar role, protecting them from the corruption and abuses so prevalent in Indonesian politics.

We'll see whether these efforts are successful. The biggest question is whether Pong and his fellow protestors gather more support. So far, while Indonesians have complained about corruption, the Constitutional Court has been viewed as a minor player. It seems citizens would have to believe that the Court would play a larger role in enforcing fundamental rights in return for public support.

National courts, local antagonisms

2011-08-01T18:31:00.000-04:00

The Indonesian Constitutional Court recently issued two important decisions with the potential to realign Jakarta's relations with two troublesome provinces. In the first decision, the Court ruled that Aceh must allow independent candidates to run. Unique in Indonesia, Aceh permits local parties and local party candidates. However, the Court ruled that Aceh's special status did not preclude independent candidates from exercising their rights. Second, the Court resolved conflicts between indigenous rights and democracy. The Court held that, despite an earlier law, Papua must permit direct elections for governor and vice-governor. The irony here is that the court, a national institution, is nominally protecting local suffrage. However, one could also view this as national elites interfering and even rewriting local rules. Indeed, in both cases the national government had negotiated special local autonomy provisions and then allowed the Constitutional Court to override them. For more analysis, see the International Crisis Group's briefing here.

Hiding Lesse Majeste

2011-07-31T20:57:00.000-04:00

The Thai Constitutional Court recently affirmed a decision to hold a lesse majeste prosecution in camera. On its face, this seems to violate Articles 29 and 40 of the 2007 Constitution, which guarantee a right to a public trial. The Court justified the restriction as only used to the extent necessary. However, it's not quite clear what is necessary about it? Is the court worried about public repetition of libel? Are in camera trials the next phase in Thai judicial politics? The New Mandala blog provides an excellent legal analysis here.

The Lighter Side: Brush up on your culture before taking your bar exam

2011-07-25T18:25:00.000-04:00

Usually, when we are considering nominees to the Supreme Court, we're concerned about the judge's education, competence, and integrity. Now, Bandung’s Parahyangan Catholic University Professor Arief Sidharta, a member of Indonesia's Judicial Commission, proposes we should also consider a nominee's sense of culture. In interviewing candidates, he asks them about their knowledge of art and singing. Arief defends his unorthodox focus by noting:

“It’s about appreciating cultural values, like singing,” he said. “People who appreciate art and culture tend to be more sensitive to what’s going on in their surroundings, and this is exactly the quality that we need in our legal practitioners.”

It's an interesting argument, and certainly not one that graces the pages of comparative judicial politics scholarship. It's also nice to hear something about Indonesia's courts besides the rampant corruption.

Limit justice to save justice

2011-07-16T01:27:00.000-04:00

According to The Jakarta Post, the Indonesian House is considering reforms to the Supreme Court law. One of the proposed reforms is particularly interesting: limiting litigants' right of appeal. In recent years, the Supreme Court's caseload has reached phenomenal levels, as high as 17,000 per year. Some of these are relatively minor cases requiring only per curium decisions, but still they bog the court down. As Ronald Rofiandri from the Center for Legal and Policy Studies (PSHK) noted, “Not all cases should be brought to the appellate court, for example, divorce cases.” Reducing the court's workload could go a long way to ensuring that it spends the necessary time on the more important cases in its docket. It could also potentially reduce corruption by reducing rent-seeking opportunities (after all, fewer cases means fewer litigants to extort). In short, this could be one feasible reform that could lead to a dramatic improvement in Indonesia's notorious judiciary.

Time to find Burgos...

2011-07-14T20:14:00.000-04:00

Since his disappearance in 2007, Jonas Burgos has been the poster child for the problem of enforced disappearances in the Philippines. While the Philippine Supreme Court under Chief Justice Reynato Puno had expressed its support for resolving these cases, and even promulgated new writs to help, thus far it hasn't been able to bring the perpetrators to justice, much less find Burgos. Now, the Supreme Court has ordered the Armed Forces of the Philippines to produce Burgos... or else. Given the power of the AFP, it's not clear whether the Supreme Court can enforce its order. Indeed, the Court also suggested that the AFP should be should be held in contempt for not complying with earlier orders to produce documents related to other disappearances. Still, the decision is perhaps a good sign that the Supreme Court under the new chief justice, Renato Corona, hasn't abandoned his predecessor's mission. Read more at PhilStar.

If a soldier commits a crime...

2011-07-14T19:41:00.000-04:00

It's not uncommon for justice systems to permit the military to try their own soldiers in a separate courts-martial system. However, in more democratic countries, the constitution generally grants defendants the right to appeal their cases to the regular judiciary. Moreover, the military justice system's jurisdiction is usually limited to incidents that occurred during the course in the line of duty.

By contrast, Myanmar's new constitution establishes an autonomous system of military justice, in which not even the Supreme Court can exercise review of courts-martial. In an article posted on Mizzima, U Myo and James Tager argue that the Constitutional Tribunal can and should limit the military justice system's jurisdiction and ensure that the regular courts can exercise review. While I suspect some of their prescriptions are somewhat idealistic, to say the least, they nonetheless provide a useful overview of the problems Myanmar's military justice system might face. You can read the whole article here.

There they go again...

2011-07-10T12:06:00.000-04:00

As readers might have heard, Thaksin's sister, Yingluck Shinawatra, and the Puea Thai party won an overwhelming victory in Thailand's July 3 elections. While military leaders ruled out a coup, the defeated Democrat Party is asking the Election Commission to file charges against Puea Thai. In particular, the Democrats want the Constitutional Court to dissolve Puea Thai because of Thaksin's involvement in the campaign and allegations of "corruption." According to the news I've seen thus far, this "corruption" largely amounts to Puea Thai candidates handing free noodles during campaign events. So far, the EC hasn't actually filed a case against Puea Thai yet, but it's only a matter of time.

Thus far, history looks set to repeat itself. Of course, back in 2008, the Constitutional Court was instrumental in the PPP's downfall. Last year, the Court refused to dissolve the Democrat Party on similar charges. There's no reason to think the justices have changed their basic political outlook since the 2008 cases; I haven't heard of any major changes in court personnel, nor have Puea Thai allies been in a position to appoint new justices. However, if the Court dissolves Puea Thai now, it risks cementing a reputation for partisanship. I'll definitely follow this case to see how it develops and if it actually goes to trial.

Indonesia updates

2011-07-09T16:42:00.000-04:00

Two bits of news came out today that throw up further questions about Indonesia's legal system. Over a year ago, I mentioned a case in which an Indonesian woman, Slamet Yuwono, was sued for defamation after she'd posted negative comments on Facebook. At the time, she had won on appeal. However, now the Supreme Court has found her guilty and sentenced her to six months imprisonment. According to an interview in The Jakarta Post, her lawyer claimed:

Making a comment is everybody’s right... If that kind of regulation is implemented, there would be many Indonesians in jail because of negative comments on sites such as Facebook and Twitter.

In other news, according to The Jakarta Post, President Yudhoyono issued a decree to temporarily suspend Imas Dianasari, judge allegedly caught accepting a bribe on June 30. Unilaterally suspending judges is, to say the least, an exceptional power, granted in response to concerns over the corruption in Indonesia's judiciary. As far as I can recall, this is the first time under SBY's administration Indonesia that the president suspended a judge (although I'm not sure on this point). It'll be worth keeping an eye out to see how this power is used in the future.

"Shedding Light on Burma's Judicial System"

2011-07-08T22:11:00.000-04:00

Htet Aung, a journalist for The Irrawaddy, has written a fascinating account of a recent case in Burma's judicial system. Unlike most news articles about courts in Burma, the litigants in this case aren't high-profile political dissidents but rather farmers and workers. Their only crime was to resist attack from workers whose boss had close connections with Burma's economic and military elite. The article is striking in that it shows how corruption and cronyism in Burma have filtered down throughout the judicial system. Unfortunately, this is the type of judicial corruption that is particularly problematic to uproot.

Aung Thein, a public interest lawyer associated with the National League for Democracy, was particularly critical of the courts. Htet Aung writes:

President Thein Sein pledged in his first presidential speech that the new government must carry out “clean and good governance.” Asked whether a reform of the judiciary should be one of the first priorities of the new administration, Aung Thein said, “Handing out the maximum sentence is such an easy job. Even a court clerk can do that.”

That highlights a crucial difference between the "rule of law" and "law and order." The latter simply concerns controling crime, whereas the former requires elites and government officials to subject themselves to the law.

I encourage you to read the entire article here. I hope Htet Aung and his colleagues at The Irrawaddy continue to publish articles like this one about the courts.

Friendship money

2011-07-07T09:39:00.000-04:00

"Friendship money." That's the euphemism currently employed in Indonesia to describe Democratic Party legislator M. Nazaruddin's "presents" to members of the Constitutional Court. According to The Jakarta Post, Nazaruddin gave court members S$120,000 (approximately $97,700). Constitutional Court secretary-general Janedri M. Gaffar testified before the House’s ethics council about the allegations and claimed the court returned the money (interestingly, he seems to claim there was "a receipt for the return of the money to Nazaruddin", suggesting there was a paper trail).

As I've mentioned several times on this blog, corruption is nothing new in Indonesia's judiciary. However, until recently the Constitutional Court had a fairly clean reputation. Now, even if the justices did indeed return the money and are cleared of ethics violations, the stain might last. As such, it's worth pondering why politicians would bother to bribe the Constitutional Court at all. Many of the cases that come before the court concern relatively minor policy issues, which one exception: elections. For political elites, elections are perhaps the most important policy issue.

Thus, these allegations are interesting in light of recent proposals in the House to remove elections cases from the Court's jurisdiction. Without elections cases, the Court will still have jurisdiction over several important policy areas, but ones that affect the political elite indirectly. Unfortunately, I don't have the contacts within Indonesia's legislature to test this theory, but it's possible that removing elections from the Court's jurisdiction was partly a commitment strategy to protect the Constitutional Court from corruption (a tad idealistic, I know, but not unheard of). Either way, it will be interesting to observe allegations of corruption against the Constitutional Court over the next few years and whether or not they abate after the reforms take hold.

And the second trial moves on

2011-06-28T17:34:00.000-04:00

VOA Khmer has some more analysis of the second trial at the Khmer Rouge. Two key issues are whether the (admittedly less legalistic) 1979 trial under the Vietnamese or the 1996 amnesty preclude another trial. John Ciorciari, a professor of law and public policy at the University of Michigan (my home institution), says no to both questions. Read on here to find out more about the debate.

More trouble with the Khmer Rouge Tribunal

2011-06-26T21:57:00.000-04:00

It's been a while since we've seen much news regarding the Khmer Rouge Tribunal. The second trial, featuring Nuon Chea (Brother Number 2), Khieu Samphan (former head of state), Ieng Sary (former foreign minister), Ieng Thirith (minister for social affairs), is due to start soon. Unlike Duch, these four defendants allege their innocence and vow to fight the charges.

However, a new dispute appears to have broken out between the Cambodian and international members of the tribunal. The international prosecutors want to bring several more defendants before the trial, while the judges seem to want to avoid further prosecutions. In fact, the behavior of some of the judges has been shockingly unprofessional. According to the BBC:

They [the judges] warned they would punish a "disloyal staff member" they suspected of leaking information. And they "welcomed" the resignation of international staff who disagreed with their approach to investigations, one of whom referred to a "toxic atmosphere of mutual mistrust" in a "professionally dysfunctional office".

[Judge] Blunk also rebuked a journalist who asked whether the judges were trying to "bury" the third case, telling him: "The use of the word 'bury' is insolent, for which you are given leave to apologise within two days."

Of course, as everybody knows, the best way to inflame a reporter's charge is to try to attack the messanger. BBC also interviewed some Cambodian activists who suspected that the United Nations simply wants to wrap up the trials as soon as possible in order to save money.

Overall, this is a sad state of affairs for the KRT process and a far cry from what its supporters had hoped. It looks less and less likely that the KRT will have any meaningful impact on the Cambodian legal system. Perhaps the second trial at least will provide enough of a sense of justice to allow Cambodians to close the book on this part of their history.

Maybe this is why?

2011-06-22T23:10:00.000-04:00

Yesterday, I'd posted a report about new reforms (attacks?) on Indonesia's Constitutional Court. Today, Mahkamah Konstitusi Chief Justice Mahfud M.D. made yet another very public and "politically incorrect" comment about the SBY administration. As reported by Jakarta Globe, he claimed:

The moral bankruptcy of the legal system is due to the static legal enforcement... The key is leadership. We often face the belief that the president shouldn’t be involved in law enforcement. But in my opinion, the president should be involved in law enforcement but not the court process. Law enforcement is, indeed, the president’s duty.

Basically, the judiciary is accusing SBY of a lack of leadership - harsh words from the Third branch.

Despite having just a five-year term, Chief Justice Mahfud has been quite outspoken and sometimes critical of the other branches of government. Some Indonesians seem to believe the House's recent "reforms" to the Constitutional Court were a sort of retribution against an activist and outspoken court. On the other hand, if the House and president don't like the chief justice, they only need to wait a few more years to replace him. How much of a role is personal politics playing? It's always difficult to tell in these situations, but in Indonesia personal politics can never be entirely discounted.

Indonesia's Incredible Shrinking Constitutional Court(?)

2011-06-21T17:19:00.000-04:00

Last week, murmurs came out of Indonesia that the House of Representatives had agreed on a bill that would significantly revise the powers and role of the Constitutional Court (Mahkamah Konstitusi). Now, Jakarta Globe reports that the House passed the bill.

Two things stand out. First, the House is warning the court not to go beyond its mandate. In particular, several representatives expressed concern that the Court sometimes "clarified" laws without expressly ruling them unconstitutional. This practice, which Simon Butt calls "conditional constitutionality,"had allowed the justices to make statements about the law's constitutionality more broadly without finding unconstitutionality in the particular case at hand. Now the Court seems like it will be forced to rule one way or the other.

The second major change is that the Court's role in overseeing and adjudicating elections disputes has been all but eliminated. Some legislators - perhaps not surprisingly - complained when the Court overturned elections results. Jakarta Globe mentioned the possibility of a new elections court, but so far I haven't seen any more details on that.

The final major provision, nominally less controversial, requires all justices to possess at least a Masters in law and be between 47-65 years old when they join the bench.

Are these changes designed to weaken the Constitution Court? In a sense, it's hard to escape that conclusion as the House bill will strip away much of the Court's jurisdiction. However, I'd also heard criticism that the Constitutional Court had become bogged down in election cases. Of course, election cases are potentially the most dangerous to the political elite of an electoral democracy. Therefore, perhaps removing election cases to a separate court will permit smoother relations between the political elite and Constitutional Court? I can't predict the future, but it's that same logic which allows courts in some authoritarian regimes to survive - reduce the threat, and allow independence.

Commit thyself to the Truth

2011-06-19T23:19:00.000-04:00

What do you do if your judicial system is notoriously corrupt and lacks any semblance of independence? One option would be to engage in a massive overhaul of the judicial system, but this entails risks and, as Indonesia has demonstrated, can prove difficult. Another option is to blame the judges.

For several years now, Burmese political leaders have lectured judges on the need to rule in accordance to the law and avoid corruption. The implication in several of these speeches has been that many judges have lapsed and they need to reform their ways. Now, the new Chief Justice, U Tun Tun Oo, seems to be carrying forth the same message - if a bit less harshly. Here is an excerpt from a recent article in The New Light of Myanmar:

“All citizens will be under the protection of law to enjoy equal rights and the judicial pillar will be strengthened,” vowed Union Chief Justice U Tun Tun Oo at a meeting with judges, law officers and court staff at Yangon Region High Court here this morning.

The Union Chief Justice noted that judicial system stands to settle rows and conflicts among citizens, bringing about stability of the nation.

Righteousness, fairness, calmness and sobriety are strength of judiciary. Judges should be committed to truth and thus are to do away with corruption and bribery, pointed out the chief justice, urging them to safeguard the judicial system.

There are a few things to note. First, the chief justice did not say that all citizens will be under "the equal protection of the law," although admittedly this could simply be a matter of translation. More significantly is his portrayal of the judiciary as settling conflicts among citizens. Nowhere does he mentioned conflicts between the state and the citizen. As I mention in my recent article about Myanmar's new constitution, citizens do not have standing to bring suits directly before the Constitutional Tribunal. Thus, most claims between the citizens and state will have to be handled in the regular judiciary.

Finally, and perhaps most worryingly, Chief Justice U Tun Tun Oo made no mention of judicial independence. In the past, Burmese political leaders have claimed some role for judicial independence, but also stated that judges must cooperate "in harmony" with other branches. The constitution also takes that approach, saying the judiciary is independent so far as possible (a qualifier, but judicial independence is always a relative rather than absolute concept). Whether or not this omission is significant is hard to tell at this point. What I can say is that the chief justice's speech does not represent a sharp break from the past.

Thai tort

2011-06-18T10:39:00.005-04:00

The New Mandala blog recently posted a book review of a very interesting new book, Tort, Custom, and Karma by David Engel and Jaruwan Engel. I haven't read the book yet, but the basic argument seems to be that in rural Thailand the state legal system plays a minimal role in resolving personal injury disputes. They suspect that globalization and the process of atomization have distanced the state from the individual.

I'll write more once I read the book (I have it on my bookshelf). For now, my parting question would be whether the book simply explains northern Thailand or develops a theory applicable to many developing country contexts. Indeed, during my recent trip to Burma, many Burmese lawyers claimed that Burma was "unique" because people avoided the legal system. At the very least, Tort, Custom, and Karma shows that the disconnect between citizens and the law exists in a variety of contexts.

The Lighter Side: Proving your innocence, Socrates-style

2011-06-17T00:07:00.000-04:00

While not "funny," this story provides a good example of the sometimes farcical nature of Indonesia's criminal justice system. One of Indonesia's most notorious human rights cases is the 2004 murder of human rights activist Munir aboard a Garuda Airlines flight. According to The Jakarta Post, Pollycarpus, the convicted murderer, has now offered to drive arsenic to prove his innocence.* In particular, he claims that he would drink the amount of arsenic that allegedly was used to kill Munir. Aside from the fact that this wouldn't do much to prove his innocence (it would do nothing to demonstrate that he did not intend to kill Munir), the judges treated his proposal skeptically. My favorite response: "Not in here. You can do it somewhere else if you wish." Somehow I doubt he'll follow that advice.

* Obviously, Socrates drank hemlock as part of his punishment, not to prove his innocence. Nonetheless, I suspect Pollycarpus' proposal was meant in a similarly defiant light.

A hopeless suit

2011-06-16T23:06:00.000-04:00

The United Church of Christ in the Philippines filed a suit for P6 million in damages against former president - and now Pampanga Representative - Gloria Macapagal-Arroyo with regards to alleged extrajudicial killings and enforced disappearances during her presidency. Here are some details from PhilStar:

In the 18-page complaint filed at the Quezon City Regional Trial Court, UCCP demanded that P1 million be paid to the organization by Arroyo for moral damages; P500,000 each for the relatives of the six supposed victims; P500,000 for exemplary damages and P300,000 each for litigation and attorney’s fees.

UCCP is bringing the suit on the legal theory of command responsibility, i.e. as president she commands the Armed Forces of the Philippines and is responsible for disciplining any human rights violations that occur.

It's worth noting that other suits against AFP commanders, most notably Jovito Palparan, have failed to gain much traction in the courts. Plaintiffs need to provide clear evidence that the commander (or president) knew of the abuses, difficult even in the best of circumstances. However, one new factor in their favor could be Aquino, or namely whether the Aquino administration provides support for such suits. I'd be surprised if there were a major ruling against Arroyo, but then again the Philippine judiciary has always been full of surprises.

Burma Constitution articles

2011-06-14T22:44:00.000-04:00

Wow, I almost forgot to post these on the blog. First, my article for the Australian Journal of Asian Law on Burma's new constitution was finally published. Second, I wrote a brief article summarizing Burma's constitutional debates for Tom Ginsburg's Comparative Constitutions blog. In both, I argue that the new Constitutional Tribunal will likely help the government centralize control over local government bodies and help manage and update constitutional interpretations. I'm looking forward to seeing whether my predictions come true over the next few years.

Philippine Replacements and Acquittals

2011-06-14T14:55:00.000-04:00

I apologize as I've been traveling a bit and hadn't had time to update my posts recently, but there are a few pieces of news from the Philippines.

First, Justice Carpio-Morales, the lone dissenter in the de Castro v. JBC case last year that paved the way for President Arroyo to appoint the chief justice, is resigning from the Supreme Court. However, she's already decided what to do next. Merceditas Gutierrez had resigned as Ombudsman earlier this summer after facing impeachment complaints from the Congress. Justice Carpio-Morales is the frontrunner to replace her. Her nomination is being considered by the JBC right now. Whether she gets the position or not she is approaching the retirement age of 70 and must step down soon anyways, giving Aquino another Supreme Court seat to fill.

Second, the Supreme Court finally denied a petition to hold Senator Lacson liable for the murders of publicist Salvador Dacer and his driver. The case is from 2000 and had been litigated for quite some time. Dacer's daughters sought to overturn a Court of Appeals ruling that cleared Lacson of the murder, but the Supreme Court found that they lacked standing. In particular, Philippine criminal procedure law gives only the state the ability to appeal the dismissal of a criminal action (with one or two exceptions of course). Sadly, given the problems Filipino human rights activists have faced in cajoling prosecutors to bring these cases, this ruling could limit the ability of advocates to pursue these cases through the criminal justice system.

Finally, the Marcus burial issue has yet to be resolved. However, Vice President Binay has proposed burying Marcos with full military honors Marcos' home province of Ilocos Norte as a compromise. I haven't seen any further word on the lawsuit brought by Marcos allies for him to be buried in the Libingan ng mga Bayani (national cemetery).

Commentary on Indonesian Judicial Reform

2011-06-09T23:51:00.000-04:00

Hikmahanto Juwana, professor of law at the University of Indonesia, recently penned a commentary in The Jakarta Post about judicial reform in Indonesia. He makes a distinction between system reforms, which he believes are on path, and personnel reform, which is floundering. In essence, he sees the major problem to judicial reform as recruiting qualified and honest judges, as well as gathering sufficient evidence to punish corrupt judges. He advocates more administrative mechanisms to punish wayward judges. Lisa Hilbink's book about judges under Chile shows the danger that senior judges can manipulate internal disciplinary mechanisms in order to influence the rulings of lower judges. Still, given how desperate the situation in Indonesia's judiciary has become, such measures might be warranted. At the very least, it appears this latest judicial corruption scandal has more people talking about the problem at higher levels.

More details about Indonesian judicial corruption scandal

2011-06-04T13:25:00.000-04:00

The Jakarta Globe has more details about the corruption scandal involving Judge Syarifuddin Umar. The Bengkulu Legal Aid Office claims the judge took some Rp 5 billion ($585,000) while presiding over the graft trial of Bengkulu Governor Agusrin Najamuddin. Meanwhile, the Supreme Court announced that it would temporarily suspend Judge Syarifuddin Umar pending the investigation.

Indonesian judge arrested for corruption

2011-06-02T11:29:00.000-04:00

Last night, Indonesia's anti-corruption commission (KPK) arrested a bankruptcy court judge in the Central Jakarta Commercial Court on charges of corruption. He will be required to undergo judicial ethics training with the Judicial Commission. It's unclear if this is part of a larger effort to crack down on judicial corruption or just an individual case. It was a particularly conspicuous case in that the judge had tens of thousands of dollars (in different currencies), but it's certainly not the only case of judicial corruption. There are a few brief articles about the case in The Jakarta Post here, here, here, and here. Hopefully we'll see on this case more soon.

Thailand v. Cambodia - fight on!

2011-05-30T20:39:00.000-04:00

The dispute between Thailand and Cambodia over the Preah Vihear temple has been mentioned on this blog before, but now it's taken an even more explicitly legal turn. Cambodia petitioned the International Court of Justice to clarify its 1958 decision regarding the temple. That's right - the ICJ ruled on this issue in 1958, and the countries are still fighting over it. It will be interesting to see what happens this time around - and more importantly, if a new decision actually resolves the dispute.

Change in Indonesia's Constitutional Court?

2011-05-30T19:10:00.000-04:00

It's always been a bit of a mystery why Indonesia's parliament agreed to create a constitutional court during reformasi. One researcher concluded that most legislators simply hadn't realized what was actually in the reform packages they'd voted on. Whatever the motivation at the time, now it appears the parliament is going back and considering revising the court. According to The Jakarta Post, legislators are looking at judges' pensions, tenure, and appointment mechanisms - in other words, some of the foundations of judicial independence.

In other news, Indonesian police are investigating allegations that a Democrat Party official falsified an order from the Constitutional Court in an elections case. The police have been investigating it for a year, but have taken no action. Meanwhile, the official involved is now the Democrat Party's spokesman. Sadly, that's Indonesia - corruption making a mockery of the justice system.

Impeaching plagiarism after all

2011-05-19T17:58:00.000-04:00

Last time I'd discussed the allegations of plagiarism against Philippine Supreme Court justice del Castillo, the Supreme Court had exonerated him of intentional wrongdoing. Now, Congress, dominated by Aquino's Liberal Party, is threatening to impeach the justice. The House Judiciary Committee voted in favor of proceeding and is now forwarding the issue to the floor. Of course, this all happens in the context of the ongoing tension between Aquino and the Court, so perhaps it's not surprising that some on the party want to punish the Court for what they see as activist decisions...

More Burmese rule of law

2011-04-26T12:40:00.000-04:00

Irrawaddy reports that National League for Democracy has also called upon Myanmar's new government to adhere to the rule of law. As I mentioned yesterday, this seems to be an increasingly popular theme in the country's political dialogue. However, I suspect the government has a different interpretation of what rule of law means. According to a New Light of Myanmar article from late 2007, then-Prime Minister Thein Sein told an audience of judges that the judiciary must work in harmony with the executive for the betterment of the country. Given the military's dim view of the 1950s Supreme Court's judicial activism, I suspect the new government will be wary of any sort of judiciary that might act as a check on the executive or legislative.

No porn for you

2011-04-26T10:16:00.000-04:00

Indonesia's Constitutional Court threw out another challenge to the controversial anti-pornography law. According to Jakarta Post, activist lawyer Farhat Abbas filed a complained alleging that the law contradicted itself by punishing the storage of pornographic materials, but creating an exemption for personal use. The Court responded that the law is constitutional, and the court's jurisdiction only allows it to determine the constitutionality of laws, not resolve internal contradictions. In the U.S., I suspect one might argue that the law's internal contradictions make it "unconstitutionally vague" (and indeed much of U.S. vagueness jurisprudence seems to revolve around porn/obscenity cases), but I'm not aware of any such doctrine in Indonesian law.

Updates from the region

2011-04-25T13:53:00.000-04:00

Lot's of interesting bits of news, but not of a lot of time to post them. Here are some samples:

Myanmar/Burma: Talk about the tables turning! The National Unity Party, formerly Ne Win's Burma Socialist Programme Party, has urged the government to adhere to the rule of law and release all political prisoners. If anything, the courts under the BSPP (1972-88) were even more of a mess than Myanmar's current judiciary. However, the NUP's current statements probably reflect the fact that out-of-power dictators prefer to live under the rule of law, in the belief that legal procedures can provide them with some protection from the current elite. Still, it's an interesting twist to Myanmar's political dialogue. Personally, I hope the opposition continues its focus on the rule of law, as that might be more palatable to the elites than "democracy."

Malaysia: Yet another twist in the infamous Anwar Ibrahim sodomy trial. This time, government chemists claim the DNA found in the alleged sodomy victim matched Anwar's. I've already blogged frequently about the case, but needless to say it seems highly political. Asia Sentinel provides a good rundown of the case, the evidence, and the very suspicious circumstances surrounding the alleged "victim."

Philippines: The Supreme Court cleared a Court of Appeals justice of charges of gross negligence after she accepted a fraudulent contract into evidence. The deed was apparently signed in 2008 by an individual who had died in 2001. It's not clear from the article exactly what the justice knew at the time of the case. However, I'm left wondering why anybody forging a contract would rely upon a signature that's so easily falsifiable!

Better not bring any "unfounded accusations"

2011-04-22T11:03:00.000-04:00

While Burma's new parliament has been seated for almost three months now, the Elections Commission has decided it will hear some of the complaints leftover from last November's election. The statistics are revealing - of the 29 cases filed, 27 are by candidates from the pro-government USDP, while only 2 are from the opposition. However, another piece in an Irrawaddy article caught my eye:

A fee of 1 million kyat (US $1,136) is required to file an election fraud lawsuit with the authorities, and it carries a possible two-year jail term if the case is lost.

On Nov. 17, the EC told candidates who planned to challenge election results that they could be fined 300,000 kyat ($340) and sentenced to three years in prison if their accusations are deemed to be unfounded.

I have no background in election law, so I can't really compare these punishments to other countries. However, they do seem somewhat harsh, especially given the vagueness of the term "unfounded accusations." This all should discourage election-related litigation, and perhaps makes it all the more remarkable that opposition candidates have even filed any complaints. It will be interesting to see whether the cases are decidedly fairly. Last year, the commission received mixed reviews in that regard.

One might hope that by raising litigation costs, the commission would then decide any cases that it does receive impartially and efficiently. In other authoritarian regimes, high barriers to litigation or restrictions on the court's jurisdiction have actually made the regime feel more secure in allowing some level of judges independence. For Burma, that might take some time, but might not be impossible over the longer term.

Public Interest Litigation for Dictator's Rights

2011-04-20T18:04:00.000-04:00

You don't see this often: a Filipino lawyer has brought a lawsuit asking a Manila court to compel the Aquino administration to allow former president Ferdinand Marcos to be buried in the Libingan ng mga Bayani (Filipino for Cemetery of the Heroes). Yes, that's right, a Filipino lawyer is appealing to constitutional on behalf of one of history's most corrupt rulers. Here are his claims:

• Whether or not the burial of the remains of Marcos at the Libingan ng mga Bayani contravenes or undermines the constitutional principle (Article II Section 5) on the maintenance of peace and order and the promotion of the general welfare.

• Whether or not the refusal of President Aquino to allow the burial of the Marcos remains at the Libingan would be violative of social justice mandated under Article II Section 10 of the Constitution.

• Whether or not the refusal of Aquino to allow the burial of the Marcos remains at the Libingan would violate human rights as guaranteed by Article II Section 2 of the Constitution for every human person, including the Marcos family.

• Whether or not the refusal of the President to allow the burial of the Marcos remains at the Libingan would be discriminatory and a denial of equal protection of the laws guaranteed by Article II Section I of the Constitution.

• Whether or not the refusal of Aquino to allow the burial of the Marcos remains at the Libingan would be violating his duty to do justice to every man imposed under his oath of office provided for in Article VII Section 5 of the Constitution.

• Whether or not the burial of the Marcos remains at the Libingan will undermine Article XI Section 1 of the Constitution providing that public office is a public trust.

• Whether or not the burial of the Marcos remains at the Libingan will be in gross disregard of the mandate in Article XIV Section 3(2) of the Constitution that educational institutions shall among others inculcate respect for human rights, strengthen ethical and spiritual values and develop moral character and personal discipline.

• Whether or not the burial of the Marcos remains at the Libingan is in compliance with the mandate in Article XVI Section 7 of the Constitution for the State to provide immediate and adequate care, benefits and other forms of assistance to war veterans.

• Whether or not the refusal of Aquino to allow the burial of the Marcos remains at the Libingan would violate human rights as guaranteed by Article II Section 2 of the Constitution for every human person, including the Marcos family.

This is a legitimately "tough" case because while ideally you want to protect the human rights of every individual, including the Marcos family, it isn't obvious that these rights are really "constitutional." In other words, I'm not sure anybody has a constitutional right to be buried where they desire, especially when the location in question is a national cemetery. I honestly don't know whether this lawsuit will be taken seriously or just dismissed quickly. One thing's for sure: while the Philippines still faces struggles on the rule of law front, Filipinos are perfectly ready, willing, and able to utilize the courts for political purposes.

Blame the courts

2011-04-18T15:52:00.000-04:00

First of all, I apologize for the sparseness of posts over the last week or so. I have finals coming up, so I'm afraid I won't be able to write much for a while. However, here's one piece of news I found interesting:

I've already written several times about the bickering between the Aquino administration and the Philippine judiciary. Now, in response to allegations that not enough has been done to punish those accused of murdering journalists, presidential spokesman Edwin Lacierda recently stated:

Those cases already in the court, I think the pressure from the journalists should be exerted towards the judiciary and not the executive branch.

I always worry when a government official calls for "pressure" to be exerted on the judiciary, even in human rights cases. I understand Lacierda's basic point that the cases are out of the executive's hands now, but the phrasing of his response suggests some animosity remains. As political scientists, we rarely get to listen in on politicians' private conversations, so offhand comments like this are particularly noteworthy.

Pay raise for Philippine justices

2011-04-07T21:47:00.000-04:00

After months of on-and-off protests, Philippine judges have finally secured a budget increase. The Aquino administration has pledged another 107 pesos for salaries. However, notably the administration is also requesting the Supreme Court to allow an audit of the Supreme Court's Special Allowance for the Judiciary funds. Perhaps not coincidentally, a similar issue (auditing special funds) led to the impeachment attempt against former Chief Justice Hilario Davide in 2003. Davide resisted Congress' demands for an audit of the Court's special funds, citing judicial independence. While the Supreme Court ultimately dismissed the impeachment attempt as unconstitutional (it was the second drawn up that year), the whole affair does suggest the sensitivity of the issue. The PhilStar article doesn't record the Supreme Court's response to Aquino's request, but I suspect it won't turn over its books quietly.

Revenge of the Lawyers

2011-04-04T14:16:00.000-04:00

During the Arroyo administration, progressive lawyers were some of the Philippine president's harshest critics. Now, with the impeachment against Ombudsman Merceditas Gutierrez, an Arroyo ally, approaching, lawyers are volunteering in droves to assist the House of Representatives legal team. I'd noted earlier that progressive lawyers are increasingly unlikely to view the Supreme Court as an ally. It seems they might be drifting back towards the elected branches of government to pursue their goals. This makes me wonder however whether the Supreme Court will have enough stakeholders to maintain its independence. If not lawyers, who has a stake in the court?

Asia Foundation Thailand survey

2011-03-30T23:51:00.000-04:00

The Asia Foundation has released a new survey of Thai attitudes towards politics and political institutions. Fortunately, it includes several questions about the Thai judicial system. Overall, the judiciary is still the most respected political institution (aside from the monarchy of course), with 59% of respondents claiming that it has "high integrity." Perhaps more surprisingly given the public controversy, 63% of Thais regard the courts as generally unbiased or neutral. However, when respondents were separated into Yellow and Red shirts, the former had much more positive attitudes towards the courts than the latter. I highly suggesting skimming the pages related to courts and the justice system (pp. 69, 73, and 93).

Oops - don't throw that evidence out quite yet

2011-03-23T18:25:00.000-04:00

A few weeks ago I reported the judge in the Anwar trial threw out a key piece of DNA evidence because the government had obtained it illegally without Anwar's consent. It turns out I spoke too soon. According to Asia Sentinel, the judge has reversed his order and allowed the evidence in. Given turnarounds like that, it's hard not to sympathize with the pessimistic views of many Malaysian lawyers about their country's courts...

Access that court

2011-03-16T22:20:00.000-04:00

In a speech before the International Association of Court and Administrator 2011 seminar, Indonesian President Yudhoyono pledged to improve access to justice for the poor. Here is an except from The Jakarta Globe:

“We have to widen access by making court cases free, granting consultation and legal aid and providing mobile trials,” he said.

In the next two years, the government plans to increase the number of free litigation cases from 4,000 a year to 11,000. It also plans to provide legal aid for more than 11,500 cases while establishing mobile courts in 233 spots around the country.

“For that reason, strengthening civil society is an important factor in allowing the people to have effective access to justice,” he said. “The government has prepared a strategy for national access to justice in the 2010 presidential decree about Justice Development.”

While I didn't hear the full speech, from what I've seen the absence of any mention of corruption is striking - certainly an elephant in the room! From what I've heard from rule of law reformers in Indonesia, the problem isn't access so much as lack of faith in the courts. Potential litigants simply don't believe they will get a fair hearing, or moreover that the benefits of litigation are worth the costs. Apathy is the general feeling. In fact, USAID recently solicited proposals to stimulate demand-side rule of law reforms in Indonesia, namely getting more Indonesian stakeholders to care about the courts. Hopefully Yudhoyono's plan to reduce barriers to litigation will help somewhat in this effort.

Rules of Evidence saves Anwar

2011-03-08T23:45:00.000-05:00

It's not every day evidence law makes headlines in Southeast Asia. The Malaysian government began prosecuting opposition leader Anwar Ibrahim for sodomy soon after his PKR alliance did surprisingly well in the 2008 general elections. Now, the High Court has excluded DNA evidence linking Anwar to the alleged sodomy. The judges found that the DNA samples had been taken from a toothbrush, water bottle, and hand towel in Anwar's prison cell were taken without Anwar's permission. Now, the prosecution must rely on the testimony of the alleged sodomy victim, who, as I've written earlier, has already been caught in a "compromising position" when it came to light that he had an affair with one of the female prosecutors. I'm not sure if this means Anwar will escape conviction, but it might suggest UMNO feels secure enough to let him go. After all, Prime Minister Najib is considering calling early elections.

Manila Marquez: An effective influence

2011-03-08T23:34:00.000-05:00

The Philippine Supreme Court faces more blowback over the impeachment attempt against the Arroyo-appointed Ombudsman. Several justices are facing impeachment threats from Congress, although thus far it involves more bluster than bludgeoning. However, what really struck me in Supreme Court spokesman Marquez' recent comments, as reported by PhilStar, was how he characterized the impeachment process as a threat to judicial independence. Here are a few quotes:

“There appears to be concerted efforts to bring the court down,” SC spokesman Midas Marquez told reporters.

...

“Filing of impeachment against our justices will have to be studied very carefully. It is an effective attempt to influence future decisions of the court,” he lamented.

While impeachment has rarely been used in the U.S., several Filipino justices have faced impeachment attempts, including former Chief Justice Davide over his swearing in Arroyo. Indeed, that impeachment attempt took a toll on the court, but part of me is surprised Marquez admitted as much. Perhaps his comments were a preemptive strike attempting to portray the impeachment proceedings threats against sitting justices as threats to the rule of law rather than attempts to punish bad behavior (such as the recent plagiarism allegations, lobbying on behalf of plaintiffs, etc.).

No order in the court

2011-02-23T22:45:00.000-05:00

Every good law drama has at least one scene in which the judge resorts to banging his gavel and yelling, "Order in the court!" Of course, such scenes only make sense if the underlying assumption is that judges control their courtrooms. However, a recent Supreme Court decision from Burma suggests Burmese judges have no such luck. The justices decided that judges cannot decide who can - and, more importantly, cannot - attend a court hearing held inside a prison. Burma is notorious for conducting trials of political prisoners in prisons such as Insein and forbidding family from attending. This recent decision has received a good deal of press coverage (DVB has an article here). What's unclear to me is whether this holding has any value as precedence for trials held outside prisons. The 2000 Judiciary Act grants judges wide discretion on whether to hold trials in camera. If the Supreme Court's decision affects regular courts as well, it seems it would directly contradict the act. Alas, it wouldn't be the first time Burma's government fails to follow both the letter and spirit of the law.

Consequences

2011-02-18T00:20:00.000-05:00

Sometimes, as academics, we study the decisions of constitutional courts for their political and legal value. However, sometimes the most important impact of these decisions is on the lives of ordinary citizens. Sadly, a recent outrage in Indonesia reminds us that the decisions courts make can have grave consequences.

A while back, I mentioned a case in which Indonesia's Mahkamah Konstitusi upheld the 1965 Blasphemy Law as applied to the Ahmadiyah sect. Now, as has been widely reported, less than a year later, a mob of Muslims attacks and stabbed three Ahmadis to death in a village not far from Jakarta. This has justly been portrayed as a black eye for Indonesia. The Economist accuses the government of "fudging" on protecting human rights. Yet, few commentators seem to have drawn the line back to the Mahkamah Konstitusi. Of course, the justices bear absolutely no blame for the violence - that lies solely at the feet of a small number of disturbed young men. Still, I can't help but wonder if a clear moral mandate from the court might have sent a signal that suppression of minorities would not be tolerated.

In a recent speech, president SBY encouraged Indonesians to utilize legal means to resolve their disputes. I certainly hope more of his countrymen heed his advice.

Burma appoints Judges

2011-02-17T09:33:00.000-05:00

Burma's new national parliament (Hluttaw) has been quite busy with appointments these past two weeks. Last Friday, it appointed all nine members of the Constitutional Tribunal. According to the New Light of Myanmar, the appointees are:

The three members nominated by the elected President were U Thein Soe, Dr Tin Aung Aye and Daw Khin Hla Myint. The three members chosen by the Speaker of the Pyithu Hluttaw were U Tun Kyi, U Soe Thein and U Khin Tun. The three members nominated by the Speaker of the Amyotha Hluttaw were U Hsan Myint, U Myint Kyaing and Daw Mi Mi Yi.

The chief judge, Thein Soe, is also the former chairman of the Elections Commission. I don't know much about any of the other members. I believe Tun Kyi is a lawyer with the Ministry of Justice and deeply involved in writing the constitution. I do wonder how Thein Soe will manage the court. While the Elections Commission received a fair share of criticism, it also seemed more willing to entertain opposition challenges than the Supreme Court ever did. I'm not sure if that was a sign of the man or the regime's approach towards the elections though.

Yesterday, according to DVB, the parliament also appointed judge Tun Tun Oo as the new chief justice. He will replace long-serving Chief Justice Aung Toe, who first joined the high court bench in 1989. Again, I'm not that familiar with him, but the fact that he was personally nominated by President Thein Sein probably speaks to how independent the court will be once it convenes.

Manila Marquez: Our decision isn't meant to deodorize our image

2011-02-16T00:16:00.000-05:00

I'm starting to really enjoy Supreme Court spokesman Midas Marquez' commentary on recent cases. Yesterday, the Philippine Daily Inquirer reported him blatantly proclaiming, "“This is not an Arroyo court." Ombudsman Merceditas Gutierrez filed a complaint alleging that Congress had filed two articles of impeachment against her in one year, in violation of the constitution (interesting aside: this same provision saved former Chief Justice Davide in 2003). Gutierrez was an Arroyo appointee, allegedly close to Mike Arroyo, and some worried that the Supreme Court might protect her, given that most of the justices are also Arroyo appointees (14 out of 15).* However, the justices voted 9-7 to dismiss her complaint because the two impeachment charges had been filed in the same proceeding of Congress. The article goes on to state:

According to Marquez, the court’s ruling allowing the House committee on justice to proceed with the impeachment proceedings against the Ombudsman was not meant to deodorize its image.
It's not clear if Marquez actually used the word "deodorize," or if that was the reporter's invention, but that certainly presents quite an image - or smell, rather - of the Supreme Court's current standing in the Philippines.

* For more on these allegations, see my earlier post here.

Book Review: Misappointing judges

2011-02-15T23:43:00.000-05:00

I read a few of the chapters in Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World. I have to say I was disappointed with the Southeast Asia chapter. I noticed several basic errors with regards to countries i know well (for example, the Philippine Constitution was promulgated in 1987, not 1993). Furthermore, many of the "insights" were not all that insightful. I hope nobody needs to read this book to find out that the Communist Party of Vietnam has a monopoly over judicial appointments. This book is useful for getting an overview on the judicial appointment process of various countries, but be wary of relying on it alone without double-checking the country's laws.

Updates from the region

2011-02-11T19:25:00.000-05:00

First of all, I apologize for posting less frequently and with less analysis. Grad school is keeping me busy. I'm also working on some interesting articles, which I'll certainly share when they're ready.

There were two interesting bits of news from the region today:

Burma: In a recent speech, Aung San Suu Kyi encouraged Burma's youth to criticize corruption and arbitrariness in Burma's judicial system. Interestingly, when Irrawaddy magazine solicited for suggestions for Suu Kyi, I told her she should focus on the judicial system. Maybe she listed to me!

Indonesia: The Judges Ethics Council ruled that Constitutional Court Judge Arsyad Sanusi must step down after family members received bribes from a litigant in a case before the court. While he complied, the affair is a sad mark on the court, one of the few bright spots in Indonesia's judicial system.

Thailand: Thai activist Da Torpedo won an appeal against a lese majeste conviction. This is one of the few times a defendant has won in such a case. However, it's unclear whether the Constitutional Court will uphold the acquittal.

Suspects for life?

2011-02-01T01:20:00.000-05:00

A few months ago, I mentioned that Indonesia's Attorney General dropped what many believed were fraudulent charges against two KPK deputies, Bibit and Chandra. Surprisingly, some of their supporters wanted the two men to fight it out in court, believing that only a full trial would full vindicate them. Technically, the government used a Dutch procedure known as a deponering, which suspends the prosecution but still considers the men suspects.

Now, it appears opponents of the KPK seek to wield that technicality against Bibit and Chandra. According to The Jakarta Globe, the two men were not permitted to attend a House hearing on the KPK and reforms. Lawmakers claimed this was because the men were still legally considered suspects. Yet, as the newspaper notes, many believe the move was in retaliation for the arrest of 19 former and current legislators on charges of corruption.

Sadly, it seems that even if Bibit and Chandra are no longer in immediate danger of prosecution, last year's compromise over the case also compromised their ability to act effectively. Yet another tragedy in the story of post-reformasi Indonesia.

Book Review: Global Constitutions

2011-01-30T22:31:00.000-05:00

Tushnet and Amar's Global Perspectives on Constitutional Law is a slender volume, essentially a miniature comparative constitutional law textbook, almost a supplement to Jackson & Tushnet's Documentary Supplement to Comparative Constitutional Law 2005 (University Casebooks). This book covers some topics that earlier textbook doesn't such as campaign finance. Each chapter excerpts cases on the topic from various jurisdictions. Unfortunately, as is the case with many comparative law texts, each subjects covers only a few jurisdictions, so it's difficult to know whether they're really representative. Some of the notes are pretty useful and can serve as a guide to further sources.

Thai Judicial Politics - from a SAIS alum

2011-01-25T00:35:00.000-05:00

One of my fellow SAIS alums, Seth Kane, has written a fantastic piece in Asia Times on the current state of judicial politics in Thailand. It covers some of the same ground my (now obsolete) New Mandala articles on the judiciary and constitutional court, but with an insider's perspective on the Thai political scene. Seth also provides a useful contrast to much of the commentary by pointing out instances in which the courts have not sided with the Yellow Shirts. I encourage readers to check it out here. Congrats Seth!

Updates from the region

2011-01-21T11:17:00.001-05:00

A few interesting developments from the region:

Burma: An opposition candidate won a case against a candidate backed by the military regime! According to DVB, the Election Commission dismissed a complaint by a Union Solidarity and Development Party (USDP) candidate that his opponent, Sai Moon from the Shan Nationalities Democratic Party (SNDP), used armed groups to force people to vote for him. This is one of a handful of cases in which the courts have ruled against an elite figure. Even more interesting, according to the article other opposition candidates claim the Commission is handling such cases fairly. That's certainly a rare bit of good news and hopefully a reason for hope that the country's new judicial institutions will provide better services than they have since 1962.

Indonesia: No surprise that the latest news deals with corruption scandals. First, a while ago I blogged about the Gayus corruption case, in which a tax official bribed jailers to let him leave jail and vacation in, among other places, Bali. Now, the South Jakarta District Court has handed down a sentence. Seven years and a Rp. 300 million ($33,170) fine. However, according to The Jakarta Globe, many see this as too light a sentence for such flagrant abuses.

I have no basis upon which to judge these criticisms. I don't know if the court was particularly lenient on Gayus or if any foul play was involved. Regardless, the outcry is a useful reminder of the distinction between justice in the abstract and the judicial process. It may well be that the masses demand a more stringent punishment than the system provides.

In another corruption case, judges visited the home of former National Police chief Susno Duadji to investigate claims that a broker visited the home in December 2008 to pay him Rp. 500 million ($55,000). This event is interesting from a comparative law standpoint. In civil law countries like Indonesia, judges can and often do take it upon themselves to investigate or confirm factual allegations by the parties. In common law systems, judges almost never leave the courtroom and rely solely upon the testimony of witnesses. Still, the article doesn't explain how visiting a house will reveal what happened over two years ago.

Philippines: The war of words between the Aquino administration and the Supreme Court took another turn as Chief Justice Corona denounced a "propaganda war" against the Court's recent judgements. According to PhilStar, the chief justice claimed, "There are people who went out of their way to disparage the decisions of the SC." He particularly criticized those who attacked the judgments without actually reading them. Nonetheless, he was careful to clarify that the "propaganda war" attacked the judgments, not the justices themselves. Hopefully, everybody in the Philippines can keep that distinction in mind because it looks like the tensions between the court and presidency will remain for some time to come.

Updates from the Philippines

2011-01-14T18:05:00.001-05:00

Two interesting stories came out today about the Philippine Supreme Court. First, a relative of those killed in the Vizconde 1991 claims Justice Antonio Carpio improperly lobbied his colleagues to acquit defendants Hubert Webb (and six others). Carpio, so the allegations state, is a close friend of the Webb family. However, the Supreme Court Spokesman Midas Marquez dismissed the allegations as lacking evidence. As the Decider once said, bring it on!

The more interesting question is whether these allegations will tarnish Carpio's otherwise sterling reputation. According to Filipina journalist Marites Vitug's Shadow of Doubt, the Supreme Court is no stranger to this type of nepotism and favoritism. Yet, Carpio also came across as one of the heros of the book. After being passed over for the chief justiceship last year (see my earlier article here), Carpio has become a leading voice within the dissenters - and as such often seen as the leader against the Court's pro-Arroyo majority (I'm not claiming this is true, but I believe the perception exists). If there is any evidence Carpio lobbied on behalf of a man accused of mass murder, then that perception might change quickly.

The second story is an update on the continuing standoff between judges and Aquino administration over the judicial budget. Apparently, the Department of Justice made just enough promises to forestall a nationwide protest that had been planned for this Monday. The dispute had centered on salaries and pensions. Still, the very fact that the judges have had to protest and negotiate for a budget raise does not speak well to judicial independence in the Philippines. So far, I have not heard anything about the judges making any compromises to pacify the administration, but this could certainly become a risk now that the Aquino administration knows how much the salary cuts upset the judges.

Updates from Burma

2011-01-11T10:02:00.000-05:00

A few years ago, I wrote an op-ed discussing the African Union's advances in protecting human rights on a regional level, and suggested ASEAN could learn from them. Did Aung San Suu Kyi read it? Probably not, but I found it interesting that she recently told a Philippine senator that ASEAN's human rights involvement in Myanmar should be modeled on that of the A.U. She cited the A.U. in Cote d'Ivoire, which I hadn't emphasized in my op-ed (at the time, SAARC and Zimbabwe seemed more relevant). Either way, I think she's onto something in drawing the comparison to Africa rather than the E.U.

According to Democratic Voice of Burma, three men from Mon State who claim to have been tortured and arrested are petitioning the Supreme Court for their release. Of course, Burma's Supreme Court doesn't have a great track record on these types of cases. Still, the plaintiffs' family members are taking an interesting approach. According to one:

“We are not looking to put the blame on anyone or to get compensation. As Buddhists, we just blame it on karma. We just want our loved one released from prison and the family of [San Shwe] be informed about his death so they can hold a funeral.
Basically, they seem to hope that they can at least get their loved ones released from prison if they promise not to threaten elite interests. It will be interesting to see if this approach works.

Unfortunately, the approach of several farmers in Kachin State seeking takings compensation did not work. Yuzana construction company initially offered the farmers approximately $100 per acre of land. The farmers sued, obviously hoping to obtain more compensation. Instead, the court awarded less - just $8 per acre. This is a valuable and tragic lesson in the unpredictable nature of law and legal institutions in Burma.

In other news, according to Irrawaddy, Rangoon's government bookstore started selling books containing the new parliamentary laws and bylaws yesterday, but almost immediately ran out. Despite disillusionment with the November 7 elections, it seems people want to understand the political process.