Constitutionalism and Legal Change in Myanmar

by Andrew Harding (Editor), Khin Khin Oo (Editor)

Overview

Myanmar's Constitution of 2008 was the 'road map' for the reform process that began in 2011. Despite extensive criticism of this Constitution for its emphasis on the role of the military, much progress has been made towards constitutional government and law reform. With the election of the opposition NLD to government in the general election of November 2015 and the presidential electoral college election of March 2016,now is the time to consider the Constitution, and prospects and needs for constitutional change as Myanmar moves towards democracy and the rule of law.
Much has been made of the Constitution's rigidity, which is seen as an obstacle to reform and inconsistent with embracing the rule of law, human rights and multi-party democracy, especially with a rapidly transforming state and society. Nonetheless, the Constitution is also seen as having potential to be a very positive force for reform.
Many issues arise now for constitutionalism and constitutional change: presidency; federalism and territorial governance; the status of minorities and freedom of religion; civil liberties in what is described as a 'discipline-flourishing democracy'; the courts, justice and the rule of law; the electoral system; and many more. This book is an attempt to gauge the extent and potential for the entrenchment of constitutionalism in Myanmar in a rapidly changing environment.

Product Details

ISBN-13:	9781849467902
Publisher:	Bloomsbury Academic
Publication date:	01/26/2017
Pages:	312
Product dimensions:	6.14(w) x 9.21(h) x 0.75(d)

About the Author

Andrew Harding is Professor of Law at the National University of Singapore.
Khin Khin Oo is an Associate Professor at the Department of Law, University of Yangon, Myanmar.

Table of Contents

Editorial Preface v

List of Contributors xxi

Table of Cases xxvii

Table of Legislation xxix

Table of Constitutional Provisions xxxv

1 Seeking Constitutional Settlement in Myanmar Janelle Saffin 1

I Setting the Scene 1

II Federalism and Secession 5

III Burma's Constitutional Moment? 7

IV Burma's 1947, 1974 and 2008 Constitutions 7

V Political Parties, Ethnic Nationalities, Peace Organisations and Constitutional Change 10

A The Nationalities Brotherhood Forum 10

B United Nationalities Federal Council (UNFC) 10

C United Nationalities Alliance (UNA) 11

D National League for Democracy (NLD) 11

E National Unity Party (NUP) 12

F United Solidarity and Development Party (USDP) 12

G Myanmar Peace Centre (MPC) 12

VI The National Peace Process 13

VII The 1990 Declaration 1/90, the National Convention and the Seven-step Roadmap to Democracy 15

VIII Political Space 18

IX A Political Pact 19

X The President and the Executive on Constitutional Change 20

XI Seeking Unity through a Shared Identity in a Constitutional Settlement 21

XII Conclusion 22

2 Rule of Law Concepts in Burma's Constitutions and Actual Practice: No Ground for Optimism Myint Zan 25

I Glimpses of Rule of Law, 1962-2011 25

II Espousal of the Rule of Law Concept by Burmese (Myanmar) Authorities 28

III Government Accountability Under the Law 29

IV The Practices and Provisions Concerning Fundamental Liberties of Citizens 31

A Arbitrary Detentions 31

B The Use of Torture 32

C Timely and Effective Remedies Before a Competent Court for Violations of Fundamental Human Rights 32

D The Five Writs under the 2008 Constitution: No Great Expectations 33

E The Process by which the Laws are Enacted and Enforced 34

F Justice Administered by Competent, Impartial and Independent Judiciary 35

i The Theoretical 'Guarantee' of Defence and Targeting of Defence Lawyers 36

ii Public Access to Judicial Proceedings 36

iii Brief Survey of 2008 Constitution Provisions Concerning the Judiciary 37

V Developments from Early 2012 to Early 2016 Regarding Rule of Law: Incautious Optimism? 38

VI The Constitutional Tribunal Imbroglio of 2012 40

VII Conclusion 44

3 A Second Panglong Agreement: Burmese Federalism for the Twenty-first Century David C Williams 47

I The First Panglong Agreement 49

A Before Panglong 49

B Panglong 50

C Problems with Panglong 53

i Under-inclusion 53

ii Vagueness 53

a Internal/External 53

b One Kyat Each 54

iii Self-enforcement 55

iv Post-Panglong Developments 55

D The 1947 Constitution 56

i State Governments 56

ii Secession 59

iii State Constitutions 59

iv The Upper House 59

v State Powers 60

E After the 1947 Constitution 61

II The Second Panglong Agreement 62

A Inclusion 62

B Specificity 63

i Elected State Governors 64

ii State Constitutions 64

iii State Powers 64

iv Supremacy Rule 65

v Structure of the Upper House 66

C Self-enforcement 66

III Conclusion 69

4 Irresistible Forces and Immovable Objects: Constitutional Change in Myanmar Andrew Harding 71

I The Amendment Process under the 2008 Constitution 71

II The Constitutional Review Process: Amending the Amendment Provision 75

III Critique of the Amendment Process 78

5 The 2008 Constitution: The Evolution of Leadership Priscilla Clapp 83

I Constitutional Provisions for Leadership 84

A The President 85

B The Commander-in-Chief 86

C Parliamentary Leadership 88

D Judicial Leadership 90

E Opposition Leadership 90

II The Impact of Leadership on Constitutional Interpretation 91

III Leadership Development 92

A President Thein Sein 92

B Speaker of the Lower House, Shwe Mann 93

C Commander-in-Chief Senior General Min Aung Hlaing 95

D NLD Leader Aung San Suu Kyi 96

IV Leadership Dynamics Affecting the Constitution 98

V The Prospects for Constitutional Amendment 102

VI Intentions Create Realities 102

6 Contesting the Rules: Myanmar's 2015 Election and Electoral Integrity Bridget Welsh 105

I Myanmar's 2015 Polls in Context 107

II The Legal Framework of Elections in Myanmar 110

III 'High Polities' of Electoral Integrity: Constitutional Reform 111

IV Administrative Integrity Issues in the Electoral Laws 120

A Administration: Administrative Bias and Capacity 120

B Inclusion: Candidacy, Parties and Voters 122

C Voting Process 127

D Campaigning 128

E Adjudication 132

V Conclusions 133

7 Achieving 'Genuine Federalism'? Myanmar's Inexorable Path Towards Constitutional Devolution and Decentralised Governance Marcus Brand 135

I The State of the Debate 137

II Federalism in Myanmar law 141

III Governance at the Region and State Levels 143

IV The Peace Process 146

V The Constitutional Reform Process 150

8 The Everyday Emergency: Between the Constitution and the Code of Criminal Procedure in Myanmar Melissa Crouch 157

I Executive Appropriation of Emergency Power 160

II From Executive Order to a Constitutional State of Emergency 164

III Myanmar's Constitutional Provisions on Emergency 168

A When Administrative Bodies Fail: Type-One Emergency 169

B Protecting the Public: Type-Two Emergency 170

C Military Takeover: Type-Three Emergency 171

IV Conclusion 172

9 How the Constitutional Tribunal's Jurisprudence Sparked a Crisis Dominic Jerry Nardi, Jr 173

I The Constitutional Tribunal 174

A Power and Authority 175

B Early Jurisprudence 176

II The Constitutional Crisis 178

A The 'Union Level Organisations' Case 178

B Impeachment 180

III Views on Constitutional Review 182

A Drafting and the National Convention 183

B After the 2010 Elections 185

IV Why the Case Became a Crisis 187

V Conclusions 190

10 Judicial Power and the Constitutional Tribunal: Some Suggestions for Better Legislation Relating to the Tribunal and its Role Khin Khin Oo 193

I Brief Background of Constitutional Review in Myanmar 193

II The Court System under the 2008 Constitution 196

III Formation of the Constitutional Tribunal 199

IV Functions of the Tribunal 205

V Accessibility of the Tribunal 207

VI Effect of Decisions of the CTU 209

VII Conclusion 213

11 Human Rights under the New Regime Catherine Renshaw 215

I Human Rights in Myanmar Before 2010 218

II Human Rights and the 2008 Constitution 221

III The Myanmar National Human Rights Commission 226

IV Transitional Justice 229

V Conclusion 234

12 The Legal Profession and the Substantive Rule of Law in Myanmar Janelle Saffin Nathan Willis 235

I History of the Legal Profession 237

II Structure of the Legal Profession 239

III The Bar Council 240

IV Legal Education 242

V The International Commission of Jurists (ICJ) 243

VI Substantive Rule of Law 246

VII Lawyers and the Rule of Law 248

VIII Identify Areas for Legal Professional Engagement Towards the Substantive Rule of law for Myanmar 249

IX Conclusion 251

Editorial Note: The Debate Concerning Section 59(f) of Myanmar's 2008 Constitution: A Gordian Knot of Rule of Law, Democracy and the Application of Problematical Constitutional Provisions Andrew Harding 253

Index 261

Editorial Reviews

"This book is an excellent contribution to both the scholarly and practical conversations on the transition to democracy in Myanmar, at the heart of which must be a discussion on the nature of the Constitution itself." --Singapore Journal of Legal Studies

"Constitutionalism and Legal Change in Myanmar is a valuable contribution to the literature in multiple fields: comparative studies, constitutionalism and Myanmar/Burma studies. It focuses on a critical topic for the future of Myanmar, and so reaches both academic and non-academic audiences. It provides an excellent introduction to the subject of constitutionalism in Myanmar. It also offers a model that serves as a starting point for future compilations that can maintain the book's focus on issues that are sure to change in the fluid environment of Myanmar's ongoing transition." --Journal of Contemporary Asia

"This edited collection, the first book on any Burma (aka Myanmar) constitution in English since 1961, is timely and unique in scope. Written by an impressive collection of academics and diplomats (both current and former), the book seeks to demystify some of the issues surrounding the origins and operation of the controversial 2008 Constitution ... Look no further than this book for your constitutional guide." --Public Law

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