Off to Naypyitaw on a Fulbright-Clinton Fellowship...

You have probably noticed that I have not updated the blog recently. I recently found out that I've been selected for a Fulbright-Clinton Fellowship in Myanmar (Burma) and will be working at the Myanmar Parliamentary Resource Center for about 10 months. So I've been busy moving out of my current apartment, putting it up for rent, etc. So stay tuned to this blog because once I arrive in Myanmar I will definitely start blogging about my experiences there...

PRL&PJ Article about Constitutional Tribunal

Here's an article I recently published in the Pacific Rim Law & Policy Journal about Myanmar's Constitutional Tribunal. I argue that the first bench of members used tetualist and originalist approaches to interpreting the 2008 Constitution. I also speculate that this might have made it more difficult for them to relate to the political changes occurring in Myanmar, and at the least did not reduce the risk of impeachment. You can read it on SSRN here. Enjoy!

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

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


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

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

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

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

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

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

Allen & Overy in Myanmar

Western firms are increasingly interested in investing in Myanmar, and so are Western law firms. The Lawyer is a brief writeup of Allen & Overy's increasing presence in the country

First constitutional rights claim in Myanmar/Burma?

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

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

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

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

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

Earlier this week, the World Justice Project released its fourth annual Rule of Law Index, which for the first time included Myanmar/Burma (data on Myanmar available here). The media, including The Irrawaddy, have focused on Myanmar's low ranking, 89th out of 99 countries included in the study (and 14th out of 15 countries in East and Southeast Asia). The Index weighs 8 broader factors, such as corruption and transparency, as well as 44 sub-factors. To obtain its measures, WJP interviewed 1,004 households in Myanmar as well as 16 experts (not including yours truly). 

As the  report’s lead author Alex Ponce pointed out to The Irrawaddy, the surveys only covered Myanmar's primary urban areas: Rangoon, Mandalay and Naypyidaw. This notably produced a bias in the results in the country's favor as it overlooked regional and ethnic areas, many of which have yet to feel the impact of the reforms. However, I suspect this problem exists for other countries in the region as well, i.e. that surveys focused on more accessible urban areas, which almost always tend to provide better governance.

In an interview with The Irrawaddy, WPJ executive director Juan Carlos Botero recommended that Myanmar could raise its score relatively quickly by focusing on open governance initiatives. To me, this seems flawed for two different reasons. First, methodologically, open government is weighted as one of eight key factors. While most scholars would accept open government as a component of "the rule of law," it's impossible to assign a quantitative weight to open government to the rule of law. However, in the WJP methodology weights it as one-eighth of the final score, so open government initiatives would have a large impact on the WJP rule of law score by virtue of that weighting, not necessarily because it would reflect actual improvements in the rule of law situation on the ground. 

Second, open government initiatives are not necessarily as painless and quick as Botero posits. Political elites are often very hesitant to expose their activities to public scrutiny. In Myanmar, genuine transparency would require the military to open its accounting books to the public. This would entail a major political change - an admirable one, but not an easy one. By contrast, political elites would probably feel less threatened by criminal or civil justice reform, even if the process takes years. After all, governments can and do regularly cordon off politically sensitive trials in special tribunals (Nick Cheesman has written about how the Ne Win regime did this with special criminal tribunals during the 1960s).

This is not to say that Myanmar's government should not undertake open government reforms. With skepticism about the reform process rising, transparency could help improve trust in the government. However, these issues do serve to highlight the challenges we face in measuring the rule of law. A recent review of judicial independence measures by Jeffrey Staton and Julio Rios-Figueroa helps illustrate the variety of potential measures, as well as the flaws inherent in each. So, in short, we should be wary of mourning (or celebrating) Myanmar's low score in the WJP Rule of Law Index.

Less than Expected (Myanmar/Burma)

By now most readers have probably read the news that Myanmar's Joint Constitutional Review Committee has issued a report advising against drastic amendments to the 2008 Constitution. According to The Irrawaddy, while the report supports amendments decentralizing government authority to state and region governments, it rejects both the proposal to reduce the military's role in the legislature and revision of § 59(f) (the ban on presidential candidates with foreign dependents).

The Committee claims that it received over 106,102 letters opposing any amendment to § 59(f), compared to just over 500 in support of change. However, a member of the governing Union Solidarity and Development Party (USDP) has revealed that the petition came from a USDP sponsored initiative and most of the majority of those signatures are from USDP members. It's a somewhat surprising move given that the USDP seemed to have been amenable to amending § 59(f) just a few weeks ago.

In other news, after months without any cases, President Thein Sein is now threatening to submit eight new laws to the Constitutional Tribunal. According to The Myanmar Times, the laws include:

• the Anti-Corruption Law 
• Farmers’ Rights Protection Law
• the Pyithu Hluttaw Law
• Amyotha Hluttaw Law
• Pyidaungsu Hluttaw Law
• Region and State Hluttaw Law
• Union Auditor General’s Office Law 
• Constitutional Tribunal Law

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

Judicial Corruption report in Myanmar (Myanmar/Burma)

According to The Irrawaddy, the Hluttaw's Judicial Affairs Committee Chairman Thura Aung Ko has revealed that the committee has received over 10,000 letters of complaints, 90% of which made allegations of corruption. Much of the corruption seems to have involved defendants bringing judges or court staff in order to win favorable outcomes. This is not too surprising given reports of corruption in the judiciary. What is not yet clear is the content of the cases, i.e. if they involve business or human rights disputes. In other words, who is affected most by judicial corruption in Myanmar? Does it have a disproportionate impact in certain types of cases? Hopefully, the committee will release a detailed report containing its full findings.

Untilting the Playing Field? (Myanmar/Burma)

On Monday, Myanmar's governing Union Solidarity and Development Party announced that it would support amending § 59(f) of the 2008 Constitution to allow Aung San Suu Kyi to run for president. I share my thoughts on this development in the International Journal of Constitutional Law's I-CONnect blog.

On another note, hope everybody reading this has a happy and productive New Year!

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

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

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

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

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

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

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

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

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

Survey says... Amend the Constitution! (Myanmar/Burma)

On Friday, according to The Irrawaddy, local authorities in Naypyitaw refused to give the National League for Democracy permission to conduct a poll of local support for amending the 2008 Constitution. The government reversed itself soon after and allowed the poll.

Not surprisingly, the NLD found overwhelming support for constitutional amendment. Out of the approximately 25,000 people who participated, 88% supported amendment, 8% favored rewriting the entire constitution, and the rest were neutral.

Shwe Mann supports opponent for president (Myanmar/Burma

Well, from a certain point of view. According to The Irrawaddy, Speaker Thura Shwe Mann has announced that he supports changing § 59F of the 2008 Constitution to allow Aung San Suu Kyi to be a candidate for president. Oddly enough, Shwe Mann himself also wants that job. Could this be an attempt by Shwe Mann to keep his hands clean in case the constitutional reforms do not allow his greatest potential challenger to complete in 2015?

Watching Court (Myanmar/Burma)

According to Eleven news, Thura Aung Ko, chairman of the Pyithu Hluttaw's Legislative and Judicial Affairs Committee, is preparing to submit a bill that would open courts to video and audio monitoring. The move is designed to allow media to report more effectively on trials and combat corruption. As noted before on Rule by Hukum, Stefan Voigt's research suggests that the quality of media supervision over the judiciary does indeed reduce judicial corruption. The bill could also increase public trust in the judiciary if it appears most cases are not decided on corrupt grounds.

There are of course concerns whenever cameras are introduced into the courtroom. First, there might be legitimate concerns with exposing court trials to the public, such as the risk that classified or privileged information might be revealed. Knowing Burmese law, it seems safe to say that there will be an exception for "public safety" or "public order" that can accommodate these exceptions.

Second, there is a risk that judges will "play to the camera." To some extent, this might just make judges more flamboyant or dramatic (think of Judge Judy on American television). However, there is also a risk that, if cameras are used to grade judges in the court of public opinion, judges will feel compelled to respond to popular criticism in their handling of cases. Benjamin Liebman has noted that Chinese judges have become very susceptible to public opinion especially because the Communist Party grades judges on how well they manage to keep the peace within their jurisdiction. As such, if this bill passes, it will be important to explain what impact, if any, public perceptions will have on judicial promotions and tenure.

Myanmar Human Rights Commission

Myanmar's National Human Rights Commission has just published a website. The site is quite sophisticated and contains a lot of information. Well worth checking out.

Speaking out for judicial independence (Myanmar/Burma)

There's been a lot of news about judicial reform in Myanmar/Burma. Last month, the U.S. Agency for International Development issued a request for proposals on a rule of law project in Burma. Even more exciting, more and more lawyers in Myanmar are taking part in the reform process. Since 2010, lawyers have established legal aid networks to help indigent clients. They are now turning their attention to broader systematic reform of the judiciary. Lawyers are increasingly organizing conferences about judicial reform, such as this one reported in Mizzima. As noted by Prof. Melissa Crouch, Yangon University law schools has also become more open to engaging with foreign donors and universities. Hopefully these are signs that any legal reform process will be owned by local stakeholders and not driven by foreign donors.

News Roundup

Unfortunately, I have been too busy over the past month to discuss developments in Southeast Asia, but the region hasn't stood still. Here's a roundup of recent news:

Indonesia

• Former Mahkamah Konstitusi chief justice Mahfud MD has declared that he would not participate in the Democrat Party primary. He expressed his concern that the results of the primary would not be respected (source: Jakarta Globe).

Myanmar

•  The Hluttaw has convened a joint committee to review and propose amendments to the 2008 Constitution (source: New Mandala).  It expects its report to go to the floor by the end of this year (source: Eleven Myanmar). While the review process is generally going to be closed, the NLD has been campaigning to make the process more open to the public (source: Eleven Myanmar). Meanwhile, Speaker Shwe Mann has sent mixed signals, suggesting that he would consider changes to the eligibility requirements of presidential candidates but would not bow to outside pressure (source: Myanmar Times). By contrast, Shwe Mann recently announced his support for federalism while speaking in Shan State (source: DVB). Federalism of course had until recently been considered anathema by senior military leaders.

• The Hluttaw is also considering an amendment to the bill on writs. According to Legal Affairs Committee chairman Thura Aung Ko, currently decisions on writs are often decided only by a single justice, which leaves petitioners at the mercy of individual justices. The amendment would require cases to be decided by a bench (source: Myanmar Times). Melissa Crouch has an article about the history of writs in Myanmar (source: I-CONnect).

Anti-Corruption Law (Myanmar/Burma)

Myanmar (Burma) now has a an anticorruption law. The Hluttaw passed the Corruption Eradication Law this week for the first time requiring senior government officials - including judges, legislators, and the president - to declare their assets. The law itself is not yet available in English. In the meantime, The Irrawaddy has more details here.

Blaming the victim: (Myanmar/Burma)

Sadly, I'm starting to wonder if I should start a new section called "blame the victim" on Rule by Hukum. This week, two more Muslims have been arrested in connection to the communal riots in Okkan, near Yangon. One of the Muslim women allegedly accidentally bumped into a Buddhist monk, while another woman yelled at the monk for lying about the incident. The incident then caused a riot in which Muslim property was burned.

Of course, what happened to the monk is unfortunate. But the rioting against Muslims has gotten out of hand. Even more worrying has been the ineffective government response. According to The Irrawaddy, "Burma has seen clashes between Buddhists and Muslims in several states this year, but so far only Muslims have been imprisoned." This year, the government has convicted more than 10 Muslims but no Buddhists.

At Wilson Center event in D.C., Pyithu Hluttaw Speaker Shwe Mann recently reminded the audience that the 2008 Constitution bans religious discrimination. One can only hope the government finds a way to put that sentiment into practice.