Constitutionalism and Legal Change in Myanmar

Description

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 now arise 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. Editorial Preface Contents List of Contributors Table of Cases Table of Legislation Table of Constitutional Provisions 1 Seeking Constitutional Settlement in Myanmar I. Setting the Scene II. Federalism and Secession III. Burma"s Constitutional Moment? IV. Burma"s 1947, 1974 and 2008 Constitutions V. Political Parties, Ethnic Nationalities, Peace Organisations and Constitutional Change VI. The National Peace Process VII. The 1990 Declaration 1/90, the National Convention and the Seven-step Roadmap to Democracy VIII. Political Space Ix. A Political Pact X. The President and the Executive on Constitutional Change XI. Seeking Unity through a Shared Identity in a Constitutional Settlement XII. Conclusion 2 Rule of Law Concepts in Burma"s Constitutions and Actual Practice: No Ground for Optimism I. Glimpses of Rule of Law, 1962-2011 II. Espousal of the Rule of Law Concept by Burmese (Myanmar) Authorities III. Government Accountability Under the Law IV. The Practices and Provisions Concerning Fundamental Liberties of Citizens V. Developments from Early 2012 to Early 2016 Regarding Rule of Law: Incautious Optimism? VI. The Constitutional Tribunal Imbroglio of 2012 VII. Conclusion 3 A Second Panglong Agreement: Burmese Federalism for the Twenty-first Century I. The First Panglong Agreement II. The Second Panglong Agreement III. Conclusion 4 Irresistible Forces and Immovable Objects: Constitutional Change in Myanmar I. The Amendment Process under the 2008 Constitution II. The Constitutional Review Process: Amending the Amendment Provision III. Critique of the Amendment Process 5 The 2008 Constitution: The Evolution of Leadership I. Constitutional Provisions for Leadership3 II. The Impact of Leadership on Constitutional Interpretation III. Leadership Development IV. Leadership Dynamics Affecting the Constitution V. The Prospects for Constitutional Amendment VI. Intentions Create Realities 6 Contesting the Rules: Myanmar"s 2015 Election and Electoral Integrity1 I. Myanmar"s 2015 Polls in Context II. The Legal Framework of Elections in Myanmar III. "High Politics" of Electoral Integrity: Constitutional Reform IV. Administrative Integrity Issues in the Electoral Laws V. Conclusions 7 Achieving "Genuine Federalism"? Myanmar"s Inexorable Path Towards Constitutional Devolution and Decentralised Governance I. The State of the Debate II. Federalism in Myanmar law III. Governance at the Region and State Levels IV. The Peace Process V. The Constitutional Reform Process 8 The Everyday Emergency: Between the Constitution and the Code of Criminal Procedure in Myanmar I. Executive Appropriation of Emergency Power II. From Executive Order to a Constitutional State of Emergency III. Myanmar"s Constitutional Provisions on Emergency IV. Conclusion 9 How the Constitutional Tribunal"s Jurisprudence Sparked a Crisis I. The Constitutional Tribunal II. The Constitutional Crisis III. Views on Constitutional Review IV. Why the Case Became a Crisis V. Conclusions 10 Judicial Power and the Constitutional Tribunal: Some Suggestions for Better Legislation Relating to the Tribunal and its Role I. Brief Background of Constitutional Review in Myanmar II. The Court System under the 2008 Constitution III. Formation of the Constitutional Tribunal IV. Functions of the Tribunal V. Accessibility of the Tribunal VI. Effect of Decisions of the CTU VII. Conclusion 11 Human Rights under the New Regime I. Human Rights in Myanmar Before 2010 II. Human Rights and the 2008 Constitution III. The Myanmar National Human Rights Commission IV. Transitional Justice V. Conclusion 12 The Legal Profession and the Substantive Rule of Law in Myanmar I. History of the Legal Profession II. Structure of the Legal Profession III. The Bar Council IV. Legal Education V. The International Commission of Jurists (ICJ) VI. Substantive Rule of Law VII. Lawyers and the Rule of Law VIII. Identify Areas for Legal Professional Engagement Towards the Substantive Rule of law for Myanmar IX. Conclusion 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 Index