Law, Society and Transition in Myanmar 9781474201650, 9781849465977

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Acknowledgments In May 2011, the Asian Law Centre in The University of Melbourne Law School hosted an interdisciplinary Burma/Myanmar Studies Workshop. The original idea for this book emerged from this event. Since then, the focus of the book has narrowed to the legal system of Myanmar, and a wide range of contributors were added to the project. We thank all the contributors to this volume for their expertise and willingness to participate in this project. We also thank the University of Melbourne and Professor Simon Evans, Pro ViceChancellor (International), for the Myanmar Seed Fund Grant that partly funded this project. Kathryn Taylor and Faye Chan gave us essential editorial and administrative assistance, and Kathryn and Tessa Shaw provided invaluable assistance for the Burma/ Myanmar Studies Workshop. Dr Helen Pausacker played a leading role in the final editorial process and we could not have completed this book without her meticulous and unflagging attention to detail. Melissa expresses her sincere thanks to the Centre for Asian Legal Studies of the Law Faculty, the National University of Singapore (NUS), for funding research trips to Myanmar in relation to this publication in 2012 and 2013. She would also like to thank Carolyn Wee and the library staff at the CJ Koh Law Library, NUS, for their generous assistance and support in tracking down many Burmese legal materials and references. Finally, she thanks the Burmese community in Melbourne for their friendship, and endless bowls of mohingya. Tim thanks the Dean of the Melbourne Law School, Professor Carolyn Evans, for her strong support for the work of the Faculty’s two centres for research on Asian Legal systems, the Asian Law Centre and the Centre for Indonesian Law and Islamic Society. Without the backing of the Law School and these two Centres, this book would not have been possible. Finally, we are extremely grateful to Hart Publishing, for publishing this volume and for their enthusiastic support and constant professionalism throughout the editing process, including with the design of the cover. We think it gives a vivid sense of the hope and spirit of a people embarked on a chaotic journey towards change.

Abbreviations AFPFL AHRC AHRD AICHR ALRC ASC ASCII ASEAN SB 2 BLC BLG BLR BSPP CALS CEDAW CERD CPB CPCS CPJ CRC CRPD CSO DICA DRI EEM EMB FPTP FTUB IBA IBAHRI ICCPR ICFTU IDEA IDPs ILO INGO IOSCO IPU JICA KBC

Anti-Fascist People’s Freedom League Asian Human Rights Commission ASEAN Human Rights Declaration ASEAN Intergovernmental Commission on Human Rights Asian Legal Resource Centre ASEAN Security Community American Standard Code for Information Interchange Association of Southeast Asian Nations Bureau of Special Investigation Burma Lawyers’ Council Burma Labour Gazette Burma Law Reports Burma Socialist Programme Party Centre for Asian Legal Studies Convention on the Elimination of all Forms of Discrimination against Women International Convention on the Elimination of Racial Discrimination Communist Party of Burma Centre for Peace and Conflict Studies Council of People’s Justices Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities civil society organisation Directorate of Investment and Company Administration Democracy Reporting International (EU) Election Expert Mission election management body first past the post Federation of Trade Unions of Burma International Bar Association International Bar Association’s Human Rights Institute International Covenant on Civil and Political Rights International Confederation of Free Trade Unions Institute for Democracy and Electoral Assistance internally displaced persons International Labour Organization international non-governmental organisation International Organization of Securities Commissions Inter-Parliamentary Union Japan International Cooperation Agency Kachin Baptist Convention

x Abbreviations KIA/O Kachin Independence Army/Organisation Komnas HAM Komisi Nasional Hak Asasi Manusia (National Commission on Human Rights, Indonesia) KSPP Kachin State Progressive Party LBR Lower Burma Rulings LDA Latent Dirichlet Allocation LNGO local non-governmental organisation MDG Millennium Development Goals MFI microfinance institution MIC Myanmar Investment Commission MLESS Ministry of Labour, Employment and Social Security MNPED Ministry of National Planning and Economic Development MOHA Ministry of Home Affairs MPF Myanmar Police Force MPR Majelis Permusyawaratan Rakyat, the Indonesian People’s Consultative Assembly MSEC Myanmar Securities Exchange Centre MTDC Mayangone Trade Dispute Committee NDA New Democratic Army NDA-K New Democratic Army – Kachin NDF National Democratic Force NGO non-governmental organisation NHRC National Human Rights Commission NLA National Library of Australia NLD National League for Democracy NLM New Light of Myanmar (newspaper) NLP natural language processing OAG Office of the Attorney General OCHA UN Office for the Coordination of Humanitarian Affairs ODIHR Office for Democratic Institutions and Human Rights OHCHR Office of the High Commissioner for Human Rights OSCE Organization for Security and Co-operation in Europe PACT People Acting Collaboratively Together PCLASC Pyithu Hlattaw’s Commission for Legal Affairs and Special Cases PDF portable document format PWG People’s Workers’ Gazette SEZ Special Economic Zone SLORC State Law and Order Restoration Council SOE state-owned enterprise SPDC State Peace and Development Council TF-IDF term-frequency inverse document frequence TOR terms of reference UAGO Union Attorney General’s Office UBR Upper Burma Rulings UDHR Universal Declaration of Human Rights UEC Union Election Commission UNDP United Nations Development Programme

Abbreviations xi UNHCR UNICEF UNSC UOB USDA USDP VEM WASH XN

United Nations High Commission for Refugees United Nations Children’s Emergency Fund United Nations Security Council Union of Burma United Solidarity and Development Association Union Solidarity and Development Party Variational Expectation-Maximisation water sanitation and hygiene facilities Xinhua News

Contributors Nick Cheesman is a Research Fellow in the Department of Political and Social Change, College of Asia and the Pacific, Australian National University (ANU). He co-convenes the Myanmar/Burma Update conference series, and co-edits and authors chapters for the corresponding book series, in which the most recent publication is Debating Democratization in Myanmar (ISEAS 2014). His dissertation on the politics of law and order in Myanmar received the ANU’s Crawford Prize and the Asian Studies Association of Australia President’s Prize. A book building on the dissertation’s contents is forthcoming with Cambridge University Press. Alistair DB Cook is a Research Fellow at the RSIS Centre for Non-Traditional Security Studies, Nanyang Technological University, Singapore. He holds a PhD from the University of Melbourne. His research interests are the Asia Pacific and, in particular, Myanmar. His work is thematically focused on non-traditional security issues, notably the causes of internal conflict and international responses. He is the co-editor of NonTraditional Security in Asia: Issues, Challenges and Frameworks for Action (Singapore, ISEAS, 2013). Melissa Crouch is a Research Fellow at the Centre for Asian Legal Studies in the Law Faculty of the National University of Singapore (NUS). She has been a Postdoctoral Fellow at NUS at the International Institute of Asian Studies in the Netherlands as well as a Research Fellow at the University of Melbourne. She is the author of Law and Religion in Indonesia: Conflict and the Courts in West Java (Routledge, 2014). She conducts socio-legal research in the areas of constitutional law; law reform in transitional states; and Islam and the state in Southeast Asia, with a particular focus on Indonesia and Myanmar. In December 2014, she will be joining the Law Faculty at the University of New South Wales, Sydney. Anna Dziedzic is a researcher in comparative constitutional law at the Melbourne Law School, the University of Melbourne, Australia. She has an MA in human rights from University College London and Bachelors degrees in Arts and Law from the Australian National University. She has previously worked in the fields of public policy and law reform, including in Samoa. She has published work on Australian constitutional and discrimination law, as well as comparative constitutional law. Nicholas Farrelly is a Postdoctoral Fellow at the Australian National University. He was a Rhodes Scholar at Balliol College, Oxford, before returning to take up an academic appointment at the Australian National University. His previous research has focused on the borderlands of northern Myanmar, north-east India and south-west China. In 2006 he co-founded New Mandala, a blog that has grown to become the pre-eminent website for academic discussions of Thailand and Myanmar. In 2012 he was awarded an Australian Research Council Early Career Research Fellowship to study Myanmar’s political cultures in transition.

xiv Contributors Andrew Harding is a leading scholar in the fields of Asian legal studies and comparative constitutional law. He commenced his academic career at the National University of Singapore (NUS) before moving to the School of Oriental and African Studies (SOAS), University of London, where he became Director of the Centre for South East Asian Studies. He returned to NUS from the University of Victoria, BC Canada, where he was Director of the Centre for Asia-Pacific Initiatives. He has worked extensively on constitutional law in Malaysia and Thailand, and has made many contributions to scholarship in comparative law, and law and development, having published nine books as author or editor. He is co-founding editor of Hart Publishing’s book series ‘Constitutional Systems of the World’, a major resource for constitutional law in context, and has coauthored the books on Thailand (2011) and Malaysia (2012) in that series. Andrew Huxley is a barrister and Professor of Southeast Asian Law at SOAS, University of London. His practice is mainly in crime, tort and family law. He has taught law at Trinity College, Oxford, the University of the West Indies, the University of Hong Kong, and Washington & Lee University. He writes on Burmese legal history and on law and the state in contemporary Southeast Asia. He edited Thai Law: Buddhist Law. Essays on the Legal History of Thailand, Laos and Burma (1996) and Religion, Law and Tradition: Comparative Studies on Religious Law (2002). His most recent article is a translation of a sixteenth-century Burmese law report. Michael Lidauer is a PhD candidate at Goethe University, Frankfurt and Research Associate of the Peace Research Institute, Frankfurt. As a social anthropologist with specialisation in Southeast Asia, and a background in election observation with the European Union, his work is interdisciplinary, with a focus on political science. He was a member of the EU Election Expert Mission to Myanmar. Since then, he has also worked as a consultant on Myanmar for Electoral Reform International Services and Democracy Reporting International, in collaboration with the Carter Center. Tim Lindsey is Malcolm Smith Professor of Asian Law, Director of the Centre for Indonesian Law, Islam and Society, and Associate Director (Indonesia) of the Asian Law Centre, at the University of Melbourne. He has previously been Director of the Asian Law Centre and Associate Dean (International) in the Melbourne Law School. From 2006 to 2011 he was also an Australian Research Council Federation Fellow. He has more than 90 publications to his name, including Indonesia: Law and Society and The Constitution of Indonesia (with Simon Butt). His recent publications include a monograph series, Islam and Law in Southeast Asia (three volumes: Indonesia; Singapore; and Malaysia and Brunei, the last two with Kerstin Steiner). He is a founding editor of the Australian Journal of Asian Law. Kyaw Soe Lwin obtained his PhD from the Department of Asian and International Studies, the City University of Hong Kong. In 2002, he earned a Bachelor of Electronic Engineering from the Yangon Technological University (YTU). He also holds a Master of Social Sciences in development studies from the City University of Hong Kong, for which he specialised in labour issues and human rights. He currently works for the Myanmar Peace Centre, Yangon. His research interests include state and society relations, and the politics of labour.

Contributors xv Lwin Moe is a computational linguist, currently working at LINGUIST List, Eastern Michigan University. He is interested in computational issues relating to Southeast Asian languages. He was previously involved in the Southeast Asian Languages Library project (SEALang) in Bangkok, Thailand, digitising monolingual and bilingual dictionaries, and compiling text. Tun Zaw Mra is part of Baker & McKenzie’s Myanmar practice and is currently based in Singapore. He obtained his undergraduate law degree from University College London, and previously practised in the corporate department of Herbert Smith’s London office. His main areas of interest in relation to Myanmar are constitutional law and corporate law. Dominic Nardi is a PhD candidate in the Political Science Department of the University of Michigan. He is interested in judicial politics in developing countries, particularly in Myanmar, Indonesia and the Philippines. His dissertation research focuses on how nonstate actors influence judicial behaviour. He has published articles about judicial politics in Southeast Asia in both law journals and magazine editorials. In addition, he has worked as a consultant with legal organisations in Indonesia and the Philippines, including the Asia Foundation. Catherine Renshaw is a Senior Lecturer at the Australian Catholic University (Sydney), and prior to that was an Associate of the Sydney Centre for International Law at the University of Sydney. She researches, writes about and teaches human rights and democracy in Southeast Asia. She serves on the editorial board of the Journal of South Asian Studies. Between 2008 and 2010 she was Director of an Australian Research Council project on national human rights institutions in the Asia Pacific region, at the University of New South Wales. She is the author of numerous journal articles and book chapters on national human rights institutions in Asia and the ASEAN Intergovernmental Commission on Human Rights. Gilles Saphy is a political scientist and an electoral expert with over 15 years’ work experience in countries in democratic transition. He participated in the organisation of the first post-conflict elections in Bosnia and Herzegovina in 1996–97 and was involved in electoral support missions in sub-Saharan Africa, South Asia and Southeast Asia before being recruited as electoral adviser in the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) between 2004 and 2009. In 2012 he was a member of the EU Election Expert Mission to Myanmar. Since 2013 he has headed the Election Observation and Democratic Support project of the European Union, based in Brussels. Cheryl Saunders is Laureate Professor at the University of Melbourne and founding director of its Centre for Comparative Constitutional Studies. She has specialist research interests in comparative public law, constitution-making and comparative constitutional theory and method. She is a President Emeritus of the International Association of Constitutional Law and of the International Association of Centres for Federal Studies, a Fellow of the Academy of Social Sciences in Australia and a member of the Advisory Board of International IDEA. She is the author of The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2011).

xvi Contributors Andrew Selth is an Adjunct Associate Professor at the Griffith Asia Institute, Griffith University, Brisbane. He has studied international security issues and Asian affairs for 40 years as a diplomat, strategic intelligence analyst and scholar. He has published four books and more than 50 peer-reviewed works, most of them about Burma and related subjects. Melinda Tun is an Australian lawyer of Burmese origin who has practised corporate law for over six years at international firm Baker & McKenzie in Sydney, Hong Kong and Singapore. In 2005 she graduated from the University of Sydney, Australia with a Bachelor of Economics and a Bachelor of Laws (Honours). In 2013 she spent several months in Yangon as a legal advisor at the Centre for Economic and Social Development of the Myanmar Development Resource Institute, Yangon. Sean Turnell is an Associate Professor in Economics at Macquarie University, Sydney, Australia. He is the author of numerous academic papers on Myanmar, and has been a regular commentator on the country in the international press. His book on Burma’s financial history, Fiery Dragons: Banks, Moneylenders and Microfinance in Burma, was published in 2009 by the Nordic Institute of Asian Studies. He has been a Visiting Fellow at the University of Cambridge, the Southeast Asia Program, Cornell University, and the Paul H. Nitze School of Advanced International Studies, Johns Hopkins University. David C Williams taught at Cornell Law School before relocating to Indiana University in 1991. The School of Law named him the John S. Hastings Professor of Law, and the University appointed him Distinguished Faculty Research Lecturer. He was a member of the Faculty of Law at the University of Cambridge and a fellow at Wolfson College, as well as the European University Institute. He has written widely on constitutional design, and the relationship between constitutionalism and political violence. He is the author of The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (Yale University Press, 2003). He is also co-editor and primary author of Designing Federalism in Burma (UNLD Press, 2005).

Glossary Upper House, or Nationalities Assembly ethnic Burmans written law texts, particularly legal rules and reports (Buddhist) dual function of the military, as both a defence and political force (Indonesian) Jinghpaw Wunpawng the united Kachin Loan Htein riot police, Security Preservation Battalions Maha Mangala Sutta ‘Discourse on Blessing’, guide to ethical behaviour Maharajathat Buddhist legal text Na Sa Ka ‘Border Control Force’ or Border Area Immigration Scrutinization and Supervision Bureau Nyein Chan Yei Apwe Peace Group Pancasila ‘five principles’, the Indonesian national ideology: 1. belief in almighty God, 2. humanitarianism, 3. Indonesian unity, 4. representative democracy and 5. social justice. Pyidaungsu Hluttaw Union Level Assembly, or Union Parliament Pyithu Hluttaw 1. Lower House, or People’s Assembly (2011–present) 2. Unicameral parliament (1974–1988) Pyattôn Law reports – texts with detailed account of one case or summaries of several cases rajathat work of a king – a sermon or set of rules Reformasi Reformation (Indonesian) sangha Buddhist clergy sesat deviant (Indonesian) shene specialist lawyers Tatmadaw army, Defence Services Taya Yôn Chôk Chief Court Amoytha Hluttaw Bama Dhammathats dwifungsi

Notes on Terminology The name of the country was officially changed by the military junta from ‘Burma’ to ‘Myanmar’ through the Adaptation of Expression Law No 15/1988. The debate over the name of the country has been discussed at length elsewhere (Holliday 2011: 4–10; Egreteau and Jagan 2013: xiii–xv; Aung-Thwin and Aung-Thwin 2012: 7–8). In this volume, the country is generally referred to as ‘Burma’ when referring to the period pre1988, and ‘Myanmar’ for the period since 1988, although we have given the authors flexibility in the use of these terms. We have also allowed variation in nomenclature in relation to the names of some ethnic groups (such as Arakan or Rakhine State), states and towns (Steinberg 2010: xxi–xii). The Burmese do not usually recognise a family name but titles are commonly used. For women, Ma (younger sister) is used for someone younger or of a similar age, while Daw (aunt) is used for an older woman. For men, the terms used are Maung (younger brother) for someone younger, Ko (elder brother) for someone around the same age and U (uncle) for someone older. The currency in Myanmar is the kyat (K). The official exchange rate at the time of publication was approximately 970 kyat to US$1. The citation of legal sources in Myanmar has varied according to the political eras. For all laws and regulations, we have specified the number and year of the law, and the body in power, for example, The Attorney General Law No 1/2001 (State Law and Order Restoration Council Law). Table 2.1 in Chapter 2 comprises a list that specifies whether laws were published annually or in volumes during particular political periods. This volume follows the Romanisation system for Burmese script based on the BGN/ PCGN 1970 agreement. REFERENCES Aung-Thwin, Michael and Aung-Thwin, Maitrii (2012) A History of Myanmar Since Ancient Times: Traditions and Transformations (London, Reaktion Books). Egreteau, Renaud and Jagan, Larry (2013) Soldiers and Diplomacy in Burma: Understanding the Foreign Relations of the Burmese Praetorian State (Singapore, NUS Press). Holliday, Ian (2011) Burma Redux: Global Justice and the Quest for Political Reform in Myanmar (New York, NY, Columbia University Press). Steinberg, David I (2010) Burma/Myanmar: What Everyone Needs to Know (Oxford, Oxford University Press).

1 Introduction: Myanmar, Law Reform and Asian Legal Studies MELISSA CROUCH AND TIM LINDSEY

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EGAL SCHOLARS TOOK their eyes off Myanmar for too long. Huxley (2004: 94) once observed that ‘Myanmar law has died of neglect’ and the same might, in fact, be said of sustained legal scholarship on Myanmar, whether by local or foreign scholars. Opportunities have now emerged, however, for law reform that even five years ago was unthinkable - a resurrection of law in Myanmar seems to have begun. The current political transition has, for example, reinvigorated engagement between the legal profession and the government, including the Parliament and the Attorney General’s Office. It has also created room for connections between local actors and international law firms, non-government organisations and a range of other groups. This has led to multiple and often overlapping conversations about the possibilities for change in a shifting institutional landscape. The resulting scramble for information by legal practitioners and international development agencies is a reflection of both the practical challenges for access to information about law in Myanmar and the lack of scholarship on law in that country. This is not to discount the important work of the handful of legal historians or political scientists who have worked on the legal system of Myanmar,1 nor dismiss the challenges of legal research – particularly empirical research – prior to 2011. It is also not to deny that a large range of legal materials are now available online in the Burmese language (see Crouch and Cheesman, this volume). Nevertheless, there is a pressing need for more informed scholarly analysis on the legal system of Myanmar, not least by scholars from Myanmar. This volume is a first attempt to begin this task. It aims to provide basic information about law in contemporary Myanmar and lay a foundation for further research. This chapter is intended to serve as a guide to the volume as a whole. It highlights key themes and debates in each chapter and identifies points of commonality across the chapters. Each chapter is designed to be read on its own but this introductory chapter directs the reader to larger trends and patterns in the law reform process as it was unfolding in Myanmar at the time of writing (late 2013). We frame this introduction within a broader comparative context, one that reflects the expansion of the depth and breadth of the field of Asian legal studies in recent

1 For example, Professor Andrew Huxley, Dr Nick Cheesman, Dr Myint Zan, Professor David Williams and Associate Professor D Christian Lammerts, among others.

4 Melissa Crouch and Tim Lindsey decades (Steele 2010). In particular, its focus is on law both ‘in context’ and ‘in action’, as opposed to simply how it appears in legal texts such as regulations and judicial decisions.2 There have been a number of legal scholars based at, or associated with, Australian universities (see Taylor 1997), who helped develop this approach by pioneering new research on the legal systems of Asian societies. One of the most well-known of these was the founder of the Asian Law Centre at the University of Melbourne, the late Professor Malcolm Smith (for more, see Steele 2010), who advocated a self-consciously pragmatic and contextual approach to understanding law in Asian societies. Another is Professor MB Hooker, now based in Canberra, who has written prolifically on the legal systems and traditions of Southeast Asia (see, for example, Hooker 1972, 1978a, 1978b, 1980, 1984). His work is based on extensive fieldwork, and focuses on explaining how legal texts are actually understood and applied in local practice. It includes some discussion of the Burmese legal system in the context of broader trends and patterns in law and legal institutions in Southeast Asia.3 Influenced by the work of these scholars and others like them, this volume is intended as a response to the ongoing need for legal research on legal systems in the Asian region that takes a socio-legal perspective and locates law beyond formal texts in its complex social and political context. As Darian-Smith (2012: 2) has pointed out, ‘studying doctrinal law alone does not tell the full story about how and under what conditions law is imagined, produced, formalised, enforced, reformed, or made meaningful’. Miyazawa (2013: 129) would add that one of the continuing challenges for socio-legal research on Southeast Asia is to ‘be more ambitious in our theoretical quest when it is empirically justifiable’. Miyazawa recognises that scholarship informs public policy, the pace of legal reform in East Asia and the fact that public policy is ‘too important to be left to the government . . .’ (2013: 128). He also cautions, however, that legal scholarship on Asia should not sacrifice depth in theory and method to produce only policy-oriented analysis (2013: 125). In fact, in the last two decades, scholarship on Asian legal systems has begun to be more widely accepted as an area of intellectual importance in its own right. The scholars working in this area have increased in number and it is beginning to have more influence on the broader theoretical field of ‘law and society’.4 A 2011 study by Chua (forthcoming 2014) suggests, however, that there is still a way to go. It shows that coverage of scholarship on law and society in Southeast Asia in select journals in the field (Law & Society Review and Law & Social Inquiry) has been very limited, although this may in part be due to the omission of regionally-focused journals like as The Australian Journal of Asian Law from her survey. In any case, it is clearly true that scholars focusing on the legal system of Myanmar – and Southeast Asia more broadly – have the opportunity to build on wider law and society scholarship as they produce work focused on particular countries or regions. Again, we hope that this volume may make some contribution to this process. In the last two decades, there has been a proliferation of ‘law and society’ edited volumes on Southeast Asia. There is, for example, Poh-Ling Tan’s volume on law and 2 The contrast between law in the books and law in action has been thoroughly discussed by ‘law and society’ scholars. For a recent reiteration of this field and its evolution, see Darian-Smith (2012) and Gould and Barclay (2012). 3 On Islamic law in Burma see Hooker 1984: 44–84; on Burmese law texts, see Hooker 1978a: 17–25, 143–47; and Hooker 1975: 85–94. 4 The field of ‘law and society’ is generally perceived to be embodied by the establishment of the Law and Society Association (US), and the ‘socio-legal’ movement in the United Kingdom, see Darian-Smith 2013: 1–12.

Introduction: Myanmar, Law Reform and Asian Legal Studies 5 society in East Asia generally (1997), and more recent and wide-ranging collections spanning East Asia have been published since then, including by Tomasic and Antons (2013). There are also numerous volumes that concentrate on the legal systems of specific countries in Southeast Asia. Some of these are of a general nature, such as the two volumes on the legal system of Indonesia edited by Lindsey (1999; 2008), while others focus on more specific issues from a law and society perspective, such as Sidel’s monograph on law and society in Vietnam (2008) and another on property rights in Vietnam (Sidel and Hue-Tam 2012). These volumes all emphasise the dynamic nature of legal systems in Asia, the explosion of state-centred reforms in recent years, and new developments in legal pluralism. They build on, and in some cases contend with, the earlier literature, which often focused more on traditional religious and cultural legal structures. 5 There have also been collections specifically examining socialist and communist regimes in Asia. These, however, deal with China and Vietnam (Gillespie and Chen 2010; Gillespie and Nicholson 2005), and do not consider Myanmar’s socialist era or its legacy for that country’s legal system today.6 There have also been a number of collections devoted to transition dynamics and the development of the legal system, such as those by Nicholson and Gillespie (2012) on law and development; Antons and Gessner (2007) on the effects of globalisation in the Asian developmental state; Lindsey on developing and transitional states (2007); Nicholson and Harding on new courts in Asia (2009); and Biddulph and Nicholson on comparative legal studies in Asia (2008). These volumes raise issues that are relevant to Myanmar’s current reform process, such as the nature of legal transplants and the effect of ‘borrowing’ laws and legal institutions. Again, however, Myanmar does not feature as a case study in any of them. This book seeks to fill some of these gaps, and is based on the belief that any attempt to understand the current transition process and the future of Myanmar’s legal system must be grounded in its social, political and cultural context, past and present. We seek to promote deep and engaged intellectual understanding of Myanmar’s legal history and development. The aim of this book is not only to provide critical information about Myanmar’s transforming legal system as it stood in 2013 and early 2014, but also, as mentioned, to provide an introductory text that can serve as a foundation for future research and teaching on the legal system in Myanmar. The focus is therefore on the legal framework and institutions of Myanmar in their social context, with a particular emphasis on comparative perspectives on the reform process. While some chapters are policy oriented, others are more concerned with ‘thick description’ (Geertz 1973), comparative analysis, or finding ways in which Myanmar’s experience can inform broader theoretical discussions. This volume is not intended to be definitive or exhaustive. We see it rather as a first contribution to a growing area of scholarly activity.

5 6

See for example Hooker 1972, 1975, 1978, 1980. One of the few volumes that focuses on Myanmar during the socialist era is Steinberg (1982).

6 Melissa Crouch and Tim Lindsey

INTRODUCTORY CHAPTERS

We structure the book around several key themes: the judiciary; the constitution; commercial law; law enforcement and conflict; and regional and comparative analysis. We use these themes to highlight gaps and offer suggestions for future research. Each chapter can be read as a snapshot of a particular area of law or legal issue, capturing the literature that is available in this area at the time of writing, as well as highlighting emerging legal issues. Chapter 2, A Short Research Guide to the Legal System of Myanmar, is designed for students, scholars and practitioners interested in conducting further research on the legal system of Myanmar. Melissa Crouch and Nick Cheesman provide a guide to primary sources available in English and Burmese at the time of writing, including court decisions, digests, laws and journals.7 They demonstrate that there is a wealth of legal resources on Myanmar now in circulation both online and in print, although they acknowledge that the latter can be difficult to access. In Chapter 3, The Layers of Legal Development in Myanmar, Melissa Crouch delivers an overview of the development of the legal system in Myanmar. This is intended as an introductory resource for the reader not familiar with the interlinked trajectories of legal and social change in Myanmar. It aims to provide a broad summary that readers can use to contextualise individual chapters. THE JUDICIARY

Part II, The Courts: Past and Present, begins with a chapter by Andrew Huxley on the Burmese Buddhist legal tradition based around a case study of theft, Is Burmese Law Buddhist? Transition and Tradition. The author is an eminent scholar in his field who has spent a large part of his academic career expanding our understanding of Burmese Buddhist law, locating it in the context of broader literature on Buddhist law in Southeast Asia.8 His chapter is a mixture of thoughtful reflections on the broader socio-political and legal changes that took place after independence and are now taking place at the 65th anniversary of the country’s foundation, combined with detailed discussion of the dhammathats, Burmese law texts. He argues that prior to 1885, Burmese law was distinctly Buddhist. This year, however, marked not only the end of Burmese rule and the beginning of colonialism across the entire country but also the replacement of codified Burmese law with case law. He demonstrates that colonial authorities with effectively no knowledge of the local culture and language imported legal codes from India into Burma virtually wholesale, ignoring the protests of more informed and knowledgeable local colonial authorities.

For an extended guide to the secondary literature, see Crouch (2014). Huxley’s work on the legal system of Burma and on Burmese Buddhist law includes (but is not limited to) an analysis of sixteenth-century Burmese law (2012); the Unocal case (2008); Burmese Buddhist law (2001, 1995, 1988–89) and the dhammathats, written law texts (1997); the development of the legal system of Myanmar through the careers of two prominent Burmese lawyers (1998); and an edited collection on Thai law that includes discussion of Burmese Buddhist law (1996). 7 8

Introduction: Myanmar, Law Reform and Asian Legal Studies 7 Huxley captures the dynamics of legal development since then in three phases: a transition from tradition since 1885, from imperial legal models since 1972, and from socialism since 1990. His trenchant criticism of the post-1962 period and Ne Win’s ‘deplorable’ takeover shows that the military lacked both the legal expertise and resources (and, it could be added, the motivation) to completely remodel the legal system according to socialist ideals of codification. He also spares no sympathy for one of the architects of the modern legal system in Myanmar, Dr Maung Maung, and the destruction he wrought on ‘Burmese legal hermeneutics’. Huxley deftly speaks across legal cultures and families, drawing parallels and contrasts with common and civil law contexts, as well as both Western and Asian legal traditions, including those of Sri Lanka, Thailand and India. He focuses specifically on the right to testate and explains the socio-political forces behind this right, including that a king or ruler is unlikely to favour a right to testate in a Buddhist society because such a right inevitably favours monks. His chapter is full of insights that indicate the extent of the legal challenges today, including that there is still no legal power to testate in Myanmar. He concludes with a more personalised reflection that draws on parallels between his own life and that of the nation of Burma. Huxley’s chapter goes far beyond a rereading of ancient Burmese legal texts and offers multiple suggestions for future research. His references to the tensions between the case law approach of the common law and the codification more typical of civil law systems raises the need for more detailed research on how the legal system in Myanmar actually functions and in what direction it is headed, a theme taken up by other authors in later chapters. His brief mention of the style of legal education also suggests the need for research on how restrictions on legal education (Myint Zan 2008) have distorted the development of the legal profession, and to what extent legal education can become a catalyst for change in the transitional era. In the next chapter, Bodies on the Line in Burma’s Law Reports 1892–1922, Nick Cheesman considers the role of the human body and the related themes of race and gender through a historical analysis of colonial criminal cases before 1922 as found in the Burma Law Reports. His chapter provides insight into the rich accounts of social, cultural and political life contained in these texts, which historians of Burma have largely neglected. He captures the way in which the Burma Law Reports feature bodies that have been offended and assaulted and the way bodies disrupt public order. In terms of gender, he highlights the fact that there was only one reported case of rape for the entire period from 1872 to 1937. He goes on to canvass various reasons for this, including that evidence given by a Burmese woman was considered somehow ‘less reliable’ than a man’s evidence. He also focuses on ‘obscured bodies’ to demonstrate the differences between the role of the police, who contain such bodies, and the role of the courts, which exposes these bodies to the public. He concludes his discussion with a note on the way that the Burma Law Reports demonstrate the inability of colonial authorities to control the bodies of the colonised. The final chapter in this section, by Dominic Nardi and Lwin Moe, is titled Understanding the Myanmar Supreme Court’s Docket: An Analysis of Case Topics from 2007 to 2011. It begins with an overview and history of the Supreme Court, and then offers an innovative quantitative analysis of the caseload of the Supreme Court from 2007 to 2011, covering all 99 cases reported during this period. The authors provide an explanation of the ‘latent topic model’ approach they adopt, the adjustments necessary because the reports are in Burmese language, and why they used this particular

8 Melissa Crouch and Tim Lindsey method. Their approach opens a new area of inquiry, since some volumes of the Myanmar Law Reports were only made electronically available by the Supreme Court in June 2013. Their survey is not without its limitations, of course, and the authors acknowledge, for example, that during the period surveyed, the Supreme Court was not independent of the executive. They also recognise that most of the Court’s caseload is unreported, and that people are unlikely to use the courts at all for everyday disputes, such as traffic offences. The Myanmar Law Reports are therefore largely concerned with criminal cases, and it is generally understood that politically sensitive cases are not reported (see also Cheesman, this volume; Crouch, this volume). Despite these constraints, their innovative analysis offers scholars of Myanmar law valuable insights and identifies important possibilities for future research. Nardi and Moe find, for example, that key matters heard by the Supreme Court during this period include inheritance, contracts and criminal procedure. The large body of criminal cases is, they note, not particularly surprising. They observe, however, that inheritance issues appear to have declined since 2008, although they acknowledge that drawing conclusions from this is difficult given the limited five-year window analysed and the small number of reported cases. They point out the potential for research of this kind to inform legal practice and education in Myanmar, observing that case law is, unfortunately, still rarely used in law teaching. This chapter provides an important basis for further statistical studies on the caseload of the Supreme Court, and could be used in a comparative quantitative analysis of court caseloads in other authoritarian regimes. These chapters remind us of how little has so far been written about the courts and the judiciary in Myanmar, beyond analysis of the Burma/Myanmar Law Reports. While these are, on one hand, a rich source of data (Cheesman, this volume), on the other the Myanmar Law Reports only report a small number of cases, and have been restricted since 1988 to the Supreme Court. They are therefore limited in scope and there is almost no legal scholarship on the practices and decisions of the lower courts, aside from Cheesman’s (2012) comprehensive and insightful analysis of criminal cases. More importantly, there is little substantive analysis of judicial backgrounds, reasons why individuals might go to court, or public perceptions of courts. This is a potential area for future research if more reported cases become publicly available. The newest addition to Myanmar’s court system, the Constitutional Tribunal, also points to the need for research on understandings of constitutionalism, to which we now turn.

THE CONSTITUTION

Part III, Constitutionalism, remains a pressing topic for debate as Myanmar’s transition process continues. This section should be read in light of Huxley’s caution (this volume) that, in any major transition, ‘constitution-drafting is less than half of the job to be done’. David Williams provides an insightful and thorough analysis of the shortcomings of the 2008 Constitution in his chapter, What’s So Bad About Burma’s 2008 Constitution? A Guide for the Perplexed. Informed by his long-standing experiences with ethnic nationalities of Burma and their exercises in state Constitution drafting, he provides an accessible overview of a complex and controversial area. His central message is of the

Introduction: Myanmar, Law Reform and Asian Legal Studies 9 importance of constitutional law in the transitional period. As he says, reform is taking place in Burma ‘not because of the Constitution, but in spite of it’. His chapter draws attention to a key issue that has not received sufficient attention to date – that military rule in Myanmar has effectively resulted in the ‘rule of men’. Other reports support his assessment. For example, there are only four female cabinet ministers in the entire country, across both state and region governments, that is, about 2.5 per cent of the total (MDRI-The Asia Foundation 2013: 55–56). Of the 664 members in the Union Parliament, just 30 are women (International Bar Association 2012: 41). Williams adds nuance to the debate on military involvement in Parliament, and he demonstrates that under the current arrangement the military cannot block ordinary legislation, only constitutional amendment. Nevertheless, he likens the military to a ‘self-perpetuating, wholly independent fiefdom with unlimited powers’. His chapter goes on to investigate the mechanics of the existing power structure. He also explains the rights provisions in the Constitution, pointing out that such provisions are only effective to the extent that there is also a parallel enforcement mechanism in place. Overall, Williams addresses a wide range of key issues relating to the constitutional text and demonstrates the risks inherent in the current arrangements in light of Myanmar’s history of oppressive military rule. In the second chapter in this section, The Common Law and Constitutional Writs: Prospects for Accountability in Myanmar, Melissa Crouch investigates the constitutional provisions dealing with writs that provide an avenue for citizens to apply to the Supreme Court for review of a government decision. Focusing on the low number of reported cases by comparison to the actual number of cases lodged, Crouch explores the socio-political dynamics of constitutional writ cases and their potential for development. She begins with a history of the development of the constitutional writs from 1948 to the 1960s, and then describes the period up until 2011, when there was no right to bring writ applications to the Supreme Court (and, indeed, until 1988, no Supreme Court). This is necessary to appreciate the significance of the ‘re-introduction’ of the writs in the 2008 Constitution. Crouch then analyses the six reported cases in the 2011 Myanmar Law Reports, showing the highly procedural and technical approach taken by the Supreme Court in supervising the jurisdiction of lower courts. She contrasts this with unreported cases of habeas corpus lodged with the Supreme Court that were unsuccessful. Finally, she critically examines the 2012–13 debates over the draft writ bills. Despite the structural lack of judicial independence in the post-2011 era, the revival of this avenue of rights has given lawyers renewed confidence in their ability to challenge the exercise of government power in courts, and in the relevance of common law precedent. Crouch concludes from the reported writ cases and from the draft writ bill discussions that the relationship between the executive and the judiciary blurs any line between the branches of government established by the formal separation of powers, limiting the potential for accountability of executive action. The final chapter in this section by Anna Dziedzic and Cheryl Saunders, Constitutionmaking in Myanmar: Insights from World Experience, provides a comparative analysis of the challenges of Constitution making and the role of the regional and international community in this process. They address the theoretical and practical challenges raised by the prospect of constitutional reform, including whether a Constitution should be amended or replaced, and the most appropriate process to facilitate this.

10 Melissa Crouch and Tim Lindsey In the first part of the chapter they deal with the importance of constitutional reform during transitional periods, referring to the experiences of Indonesia, Chile and South Africa. They then consider various issues that commonly arise as part of a Constitutionmaking process, such as the need for a clearly defined agenda, how changes should be approved as fundamental law, how any disagreements that arise should be resolved, and the form and extent of public participation. They then consider the possibilities for international engagement and regional influence, and the tensions these can create, stressing the importance of local control and ownership over the process. Overall, Saunders and Dziedzic demonstrate that the constitutional reform challenges Myanmar is facing are ones that have been faced by many other countries over the past few decades. While this does not diminish the magnitude of the problems Myanmar must overcome if it is to make a full transition to democracy and substantive constitutionalism, it does serve as a reminder that there is a wealth of comparative experience on which its leaders could draw. Constitutional law remains an important area of inquiry, and the chapters in this part clearly demonstrate its potential to shape the boundaries of the transition process. This is particularly true for Myanmar given its chequered constitutional history. The likelihood of constitutional amendment in the future means constitutional law may well become critical in determining the path of reform. This means future research must go beyond the constitutional text to consider how it is actually negotiated, enforced and perceived in practice in Myanmar.

REGULATING ECONOMIC ACTIVITY

In Part IV, Economic, Political and Business Reforms, contributors analyse a range of legislative reforms that have taken place since 2011, putting them in historical and social context. In the first chapter in this section, Legislative Foundations of Myanmar’s Economic Reforms, Sean Turnell, a leading scholar of Myanmar’s economy, addresses the legal building blocks of the reform process in relation to the economy, including the Foreign Investment Law, the Central Bank of Myanmar Law, the Microfinance Law and the Special Economic Zone Law. He provides a concise analysis of these central legal reforms and indicates areas where further reforms are necessary for the growth and stabilisation of the economy. In discussing the shift made by the introduction of these new economic policies, he emphasises the difficulty of economic recovery from the devastating impact of several decades of military rule, as well as the labyrinth of ‘domestic crony and quasi-monopoly businesses’. Turnell’s chapter raises a key issue relevant to many other areas of legal reform – the problems of implementation and the role played by enabling regulations, so often vital for fleshing out the details of how legislation actually works in practice. He also identifies the issue of ‘personalised authority’, which, in the case of economic reforms, is embodied in the Chairs of the Myanmar Investment Commission, and the way it has contributed to Myanmar’s ‘most significant policy problems’. Like other contributors, Turnell highlights the ‘unilateral and unchallengeable’ power of the President (see, for example, Williams, this volume), here in relation to the independence of the Central Bank of Myanmar. On the Microfinance Law No 13/2011, Turnell emphasises that the scope of activities that are covered are extensive, even if law only permits activities that have already taken place.

Introduction: Myanmar, Law Reform and Asian Legal Studies 11 Turnell’s chapter is an accessible overview of key economic reforms. While he gives credit for the steps that have been taken so far, he leaves the reader under no illusion that a fully functioning and viable market economy is likely any time soon. In the next chapter, Elections and the Reform Agenda, Michael Lidauer and Gilles Saphy turn our attention to electoral reforms and situate them within broader discussions of ‘democratisation by election’ as a mechanism for regime transition. Their experiences as observers with the European Union greatly enrich this chapter. They begin with an overview of Myanmar’s electoral history since the early 1900s, emphasising that the 1990 election was the first multi-party election held since 1960, and that no form of political party activism was permitted after the 1990 elections. They then carefully explore the dynamics of the 2010 general election and the 2012 by-elections, demonstrating that the former was surrounded by allegations of ‘massive manipulation’, making a sham of the USDP’s ‘victory’. They capture the intensity of the debate leading up to these elections, when political parties that did contest the election were seen as letting go of the 1990 results (in which the NLD was successful). They also emphasise the dramatic and unexpected unfolding of the 2012 by-elections, in which the NLD not only took part but won every seat it contested. They persuasively argue that the difference in the processes and outcomes of the 2010 and 2012 elections had almost nothing to do with the legal framework, and everything to do with the ‘good will’ of the country’s leaders. Lidauer and Saphy then examine in detail the existing legal framework for electoral reform, identifying key areas of concern. As they bluntly point out, under the 2008 Constitution, ‘the entire governance structure of the country is at stake in one single election event every five years’ (a point also made by Williams, this volume). Further the Union Election Commission has broad and largely unchecked discretionary powers, and its members’ terms are unclear, with no guarantee of independence. The absence in regulation of time frames, provision for election observation or details of election campaigns leaves many crucial practical issues unclear. The Political Parties Registration Law No 2/2010 also stipulates what they describe as ‘unusual’ limitations on the right to form a political party. Perhaps most problematic of all, however, they argue, is the fact that the losing party in any dispute brought before the Election Commission may face criminal penalties – surely a very significant disincentive to dispute any election outcome. Many of their other concerns relate more directly to the Constitution, and it is on this issue that Lidauer and Saphy – again like many other contributors – underscore the vital importance of the constitutional amendment process for reform more broadly. While Lidauer and Saphy relate their discussion to international standards in this area, they acknowledge that even at the international level there is little consensus on election management structures and procedure. They examine the engagement of the international community in the 2010 and 2012 elections, noting that international organisations were reluctant to engage prior to 2010 but that there has been a flood of activity in this area since the 2012 by-elections. They also show that despite the basic lack of political experience in Myanmar, Members of Parliament have been surprisingly vigorous and assertive, not always voting along party lines. Given the steps taken since 2010, Myanmar’s elections appear to be a vital part of the ‘mode of transition’. This chapter stands as a snapshot of electoral reform changes and challenges in Myanmar at the time of publication, but we believe it also offers insights relevant to the impending 2015 elections.

12 Melissa Crouch and Tim Lindsey The final two chapters in this section deal with specific areas of business law. In A Principled Approach to Company Law Reform in Myanmar, Melinda Tun focuses on the Company Act 1914 and places the potential for reform in comparative perspective. She recognises the legacy of British law in Myanmar but emphasises that the Company Act has been ‘frozen in time’, with no amendments for the past 22 years and only four minor amendments prior to that. Further, some written provisions in the Company Act have simply ‘fallen into disuse’, she says. Although she finds reassurance in the many features Myanmar law in this area shares with its common law neighbours, she makes a compelling case for reforming the Company Act as a matter of priority. Tun suggests lessons to be learnt from the wealth of experience in reforming company law available in other jurisdictions. She also seeks to normalise the process of reform of company law as well as affirm the basic existing structure of the Company Act, but is very aware of the complexities this would involve. Tun discusses misunderstandings that have arisen regarding the interaction between the Company Act and the Foreign Investment Law No 21/2012, arguing that far from the latter trumping the former, the Company Act applies to all companies incorporated in Myanmar – regardless of whether or not they have foreign investment approval. She also notes the importance of institutional capacity, particularly that of the Directorate of Investment and Company Administration, for the successful implementation of any reforms that do take place. She concludes with a plea for a reform process that is both guided by transparent principles and inclusive, while remaining under the control of local actors. Overall Tun makes a case for an approach to reform that puts principles and clear goals first. She emphasises the way in which many good practice reforms, such as the ‘think small first’ principle, could be used in Myanmar, where they are not entirely unknown. She does note, however, that the virtual vacuum of existing case law creates considerable uncertainty for those involved in corporate law reform. Many of the questions she raises are also pertinent to a wide range of other fields of law, such as whether a particular law should be redrafted ‘in whole or part’. In the final chapter in this part, The Securities Exchange Law and Prospectus Regulation: Early Sketches of Equity Capital Market Law and Regulation in Myanmar, Tun Zaw Mra analyses equity capital markets and prospectus regulation in light of plans to establish a stock exchange in Myanmar in 2015. He considers the ways in which the introduction of the new Securities Exchanges Law No 20/2013 relates to, and overlaps with, existing legislation, such as the Company Act and the Contracts Act. Outlining the process by which an issuing company is required to both register a prospectus under the Company Act and receive approval from the Securities Exchange Supervisory Commission, he questions whether a merit- or disclosure-based approach will be taken, although he acknowledges that most jurisdictions use a combination of both. He also points out that the Supervisory Commission has been given wide discretion to approve applications, and that this is a concerning feature of many other such commissions established by the raft of national laws passed since 2011. He further notes that because the Myanmar Securities Exchange Centre allows only over-the-counter trading, and does not yet have any form of settlement system, it is somewhat misleading to refer to it as a ‘stock exchange’, at this stage at least. Tun Zaw Mra observes that public companies are vastly outnumbered by private companies in Myanmar. Yet considering the legal framework, which these companies

Introduction: Myanmar, Law Reform and Asian Legal Studies 13 operate, he cautions that the general rhetoric that Myanmar is part of the ‘common law family’ could engender a ‘false sense of comfort’. He insists that it is equally, if not more, important to pay attention to local practices and the historical development of the legal system in its social and political context. He also makes the crucial point that it is not so much legislation and case law but, rather, government regulations and ministerial policies and procedures that have the greatest influence on equity capital markets – and this is true also of many other areas of legal practice in Myanmar. The detail of how a particular area of law actually works is often defined in government regulations and policies. Both this and the previous chapter are written by Burmese lawyers and look comparatively at common law jurisdictions, including Australia, England, Singapore and Malaysia. Both show that dramatic changes have taken place in commercial regulation in terms of the development of new concepts and principles, and that Myanmar’s legal framework must be responsive to these. Both also raise questions about the extent to which the courts in Myanmar might refer to, or follow, foreign judgments in the future. The transitional period has ushered in a range of economic reforms relating to business, the economy and foreign investment, and will likely continue to do so. The legal profession and law firms, encouraged by foreign investors, will continue to demand business and investment security through law, and this will require still more reform – including adopting best practice from other legal systems. This section reminds, however, that the good in the existing legal framework should not be discarded, and the reform process must remain sensitive to local practice.

ENFORCING LAW AND RESOLVING CONFLICT

Part V, Law Enforcement, Conflict and Dispute Resolution, contains chapters that consider central institutions in the process of being introduced or reformed. Andrew Selth, a long-standing observer of, and commentator on, Myanmar’s security forces, looks at the state of Myanmar’s police force, its history and organisation in Police Reform and the Civilianisation of Security in Myanmar. In particular, Selth investigates the role and function of the police force in connection with the military, both past and present. He describes the reform of the police force, which began in the early 2000s, and pinpoints areas in which further reforms are needed, including at the state and region level, if and when power is decentralised. As with Turnell’s assessment of the economic system, Selth is frank about the ‘serious problems’ ahead and the ‘reckless impunity’ with which the police and military have acted up until now. In particular, he shows how the military has infiltrated police ranks, with high-level positions in the police force being filled by former military officers. Selth describes the expansion and strengthening of the police force that is taking place but shows that the lack of a clear delineation between the role of the military and that of the police remains a significant issue – in particular, the absence of separate public identities for these organisations. His chapter also demonstrates the need for a clean reputation, the generation of a sense of legitimacy and integrity, and a culture of professionalism. All these are, of course, issues relevant to a range of other legal institutions and law enforcement agencies, and corruption, he argues, remains the key problem. His chapter

14 Melissa Crouch and Tim Lindsey suggests there is room for research on perceptions of corruption, the forms it takes in Myanmar, and how it interacts with, or avoids, legal structures and actors. Selth concludes by emphasising the need for constitutional amendment to alter the current arrangements by which the police force sits under the Ministry of Home Affairs, with the Minister appointed by the Commander-in-Chief. Until such structural impediments to separation between the police force and the military are removed, ‘second generation’ substantive reforms to police operation and practice will remain limited, he argues. Turning to conflict resolution, and, in particular, the law relating to labour, the chapter by Kyaw Soe Lwin, Legal Perspectives on Industrial Disputes in Myanmar, offers insights into the history and development of mechanisms for resolution of industrial disputes in Myanmar. He reviews shifts in how workers have sought to resolve industrial disputes over different political periods. Under post-independence parliamentary rule, for example, he demonstrates that the conditions for workers and employment opportunities available to them gradually deteriorated as the economic position of the country declined. Kyaw Soe Lwin emphasises the range of mechanisms that workers used strategically to resolve labour disputes, including unions, political parties, arbitration, complaints to the International Labour Organization, and, of course, protests and demonstrations. In particular, he describes the options for formal dispute resolution available through the state from 1947 until 1952, although he concludes that these did not play a significant role. He also describes the way trade unions emerged from political parties at the time, including the All Burma Trade Union Congress (affiliated with the Burma Communist Party), and three different trade unions that developed from divisions within the Socialist Party. He then turns to the period post-1962 under Ne Win, when the army depended on the ‘working masses’ for political support and, to retain this support, established a People’s Workers Council (known after 1974 as the Workers Association). While the army did not hesitate to use violence against workers on strike, those who chose to resolve disputes through the Workers Association were often ‘favoured’ by the government. He demonstrates an increase in industrial disputes under the socialist regime, due to government policies that often encouraged workers to challenge their employers. The subsequent State Law and Order Restoration Council/State Peace and Development Council (SLORC/SPDC) era led to a sharp decline in the formal resolution of disputes. It was, Kyaw Soe Lwin argues, perhaps the darkest era for labour rights in Myanmar – particularly because of the close relationship that developed between the military and the business community. In concluding, he notes not only significant changes that have since taken place to the legal framework in this area, both through the repeal of old laws and the introduction of new ones, but also a corresponding increase in labour strikes due to the atmosphere of greater political freedom. Kyaw Soe Lwin admits that only a small portion of workers have actually exercised their new-found rights but remains optimistic about future improvement of the system of industrial dispute resolution. The other two chapters in this part address the politics of the conflict in Kachin State from different perspectives. In War, Law and Politics: Reflections on Violence and the Kachin, Nicholas Farrelly provides a sophisticated analysis of one of the most complex conflicts in Myanmar, that between the Kachin Independence Army/Organisation (KIA/O) and the government of Myanmar. The importance of resolving this conflict

Introduction: Myanmar, Law Reform and Asian Legal Studies 15 cannot be overstated, if the government’s hopes of finding a way to declare a nationwide ceasefire are to be realised. Farrelly outlines the history of this conflict, and the reasons for the breakdown of the ceasefire agreed in the 1990s. He shows how the unparalleled success of the KIA/O in the 1980s not only perpetuated the conflict but also expanded its power. The significant growth in its wealth that this enabled only increased after the 1994 ceasefire, as ‘Kachin economic leaders’ benefited from concessions granted to the logging and mining industries, the jade industry in particular. In exchange, the military gained the chance to reinforce its presence in northern Myanmar. Farrelly notes that the KIA/O should not be considered united, given its many internal divisions, a characteristic it shares with the armies of other ethnic nationalities in Myanmar. A key point of contention in any discussion of ethnic politics in Myanmar is the Panglong Agreement. Farrelly examines both the ‘mythical status’ it has acquired for ethnic nationalities, and the blunt refusal of the government to recognise its connection to current negotiations. The importance of the Panglong Agreement, and questions about whether its ‘spirit’ will influence the transition process, are also considered by Williams (this volume), and Dziedzic and Saunders (this volume). Farrelly then turns to consider the elements of the relationship between ‘law and war’ in Myanmar, including the contested legal status of ethnic armies such as the KIA/O, and the absence of legal mechanisms to deal with the breakdown of a ceasefire. He captures the way in which violence and the politics of negotiation have triumphed over formal state law – at significant cost – and the difficulties this presents if law is to prevail over violence in the future. Alistair Cook provides an analysis of the politics of humanitarian aid in Kachin State in the next chapter in this part, Civilian Protection and the Politics of Humanitarian Action in Kachin State. Cook emphasises the obstacles that currently obstruct the delivery of aid for the internally displaced. He contrasts the limits of international humanitarian assistance with the responsiveness of Kachin social and religious networks, in particular religious organisations addressing immediate humanitarian needs. He explains the crucial role that local actors play in negotiating the delivery of humanitarian assistance, in the absence of a more formalised response. This is partly because of tension between local Kachin actors and the Myanmar government, and the Myanmar government’s ironic insistence that aid must be channelled through it. Given the conflict in Kachin State, Cook questions how much control the President really has over the actions and behaviour of the military in such areas. He expresses some scepticism about the reform process, questioning its ‘sustainability’, and noting that many ethnic nationalities – including the Kachin – have yet to feel any positive effect from the transition process. He also highlights the importance of China and its role in resolving this crisis, given its geographical proximity and the fact that, as one informant claims, ‘China is the husband of the Burmese military’. Cook also refers to the broader approach to refugees taken by states in Southeast Asia, where most countries, including Myanmar, have not yet signed the Refugee Convention, and, he argues, are unlikely to do so in the near future. The non-binding nature of international norms on humanitarian assistance, and the inability of the UN Special Rapporteur to even gain permission to travel to Laiza in 2013, starkly demonstrate the extent to which the Kachin conflict is beyond the reach of international actors. Cook’s chapter suggests a shrinking humanitarian space for international actors but correspondingly increased scope for local actors.

16 Melissa Crouch and Tim Lindsey

A COMPARATIVE APPROACH

While many of the chapters in this volume have comparative elements, the concluding section, Myanmar Law in Regional and Comparative Perspective, is dedicated to looking at law in Myanmar from an expressly comparative perspective. One example raised at several points throughout the volume as highly relevant for actors in Myanmar searching for appropriate models of law reform is Indonesia. Dziedic and Saunders (this volume), for example, refer to Indonesia as an example of constitutional reform during a period of transition from authoritarianism to democracy. Williams (this volume) similarly refers to Indonesia in the context of countries where the military was willing, over time, to accept constitutional amendments.9 In the next chapter, Unlike Any Land You Know About? Myanmar, Law Reform and the Indonesia Model, Tim Lindsey offers an analysis of the role of Indonesia as a model for Myanmar’s leaders, both under the authoritarian, military-backed rule of President Soeharto’s New Order regime, and more recently under the ‘Reform Era’ democratic governments that followed his fall in 1998. Lindsey argues that not only have the ruling elite in Myanmar seen Indonesia as a country with significant similarities to their own, but Indonesia’s leaders have shared this perception, sometimes actively encouraging Myanmar to treat their state as a model. He explores why they have done so, and how relations with Myanmar have been used in quite different ways by successive Indonesian leaders to strengthen their own legitimacy. He also considers how Indonesian understandings of Myanmar’s geo-strategic significance have been central to this process. The chapter closes with an assessment of how far Indonesia’s largely successful transition to democracy can be used as a way of understanding the current political changes taking place in Myanmar. The example of Indonesia as a ‘norm leader’ is also highlighted by Catherine Renshaw in the following chapter, The Regional Context of Myanmar’s Democratic Transition: What Role for ASEAN’s New Institutions?, which considers the regional dynamics of Myanmar’s membership of the Association of Southeast Asian Nations (ASEAN). Renshaw offers a timely focus on Myanmar’s history as a Member State of ASEAN and the potential of this connection for the future development of concepts of democracy and human rights in the region. This is an important issue, given that Myanmar is chair of ASEAN in 2014. Renshaw considers the extent to which ASEAN as a regional institution may have influenced Myanmar’s democratic transition but suggests that any discernible ‘neighbourhood’ effect is weak at best. She questions what, if any, significance the introduction of the ASEAN Charter in 2007 might have for Member States such as Myanmar, exploring whether ‘non-democratic’ conduct on the part of a Member State could amount to a breach of the ASEAN Charter. While noting the newness of the Charter, she also emphasises that even prior to this ASEAN represented Myanmar’s ‘most important and sustained multilateral engagement’. This has made tensions between ASEAN and Myanmar – such as ASEAN’s rare criticism of Myanmar after the 2007 Saffron Revolution – even more significant. She identifies three potential future trajectories for 9 For a critical analysis explaining why the constitutional amendment process in Indonesia was so successful, see Horowitz (2012).

Introduction: Myanmar, Law Reform and Asian Legal Studies 17 Myanmar’s reform process: incremental transition, military entrenchment or military takeover. She concludes that while ASEAN is unlikely to reward steps taken towards democracy, or provide a source of democratic legitimacy, the fact that Myanmar remains a part of the ASEAN ‘family’ leaves open an avenue for external influence. Finally, in Law and Development in its Burmese Moment: Legal Reforms in an Emerging Democracy, Andrew Harding reflects on the reforms that have taken place in Myanmar since 2011 in light of the literature on law and development, identifying this period as Myanmar’s ‘Burmese moment’ in law and development. He considers the link between Myanmar’s transition process and developments in the literature on law and development, suggesting we should move beyond discussion of ‘movements’ because law reform is ‘situational, not chronological’. In providing an overview of some of the key issues and developments in the transitional context, he focuses on central topics such as the Constitution, the rule of law, law and economics, and the challenge of human rights. He questions whether a rigid or flexible Constitution would be more likely to weather the transition process. He also notes the paradox in constitutional reform that ‘bodies created to act as checks and balances on the exercise of power may come into conflict with each other’. He emphasises the need for research on popular understandings of constitutionalism and public perceptions of law. As to the complex question of whether Myanmar is a common law system, Harding argues that the debate on the classification of law and legal families may not be particularly useful, and that it is ultimately more important to consider how the law actually works and is understood in practice. He also questions the current law-making process, particularly the privatisation of legal drafting that took place over the Special Economic Zone Law. His chapter raises important questions for those involved in the law reform process, and calls for greater attentiveness to, and emphasis on, local practice. His chapter captures the views and discussions of scholars during this ‘Burmese moment’ in law and development. He concludes that Myanmar and the law and development movement should both be seen as involved in a ‘long process of mutual discovery’. CONCLUSION: A SNAPSHOT OF LAW REFORM IN MYANMAR

Whether Myanmar is a country in transition from one system to another, or simply from one government to the next, ‘moments of transition’ always present challenges for the law (Sarat 2012), usually resulting in either its reform or marginalisation. In Myanmar, the future of its political transition is still not certain but it clearly has the potential to usher in a dramatic shift to democracy and a substantially reformed legal and political system – both things that have long been awaited by its people. Before this will be possible, there are a large number of complex problems that must be resolved, many of which have been explored in the chapters just described, and which have implications well beyond the borders of Myanmar. To take one example, despite the efforts of many legal reformers in Myanmar to reposition its legal system more squarely in the ‘common law’ world, it defies easy classification and demonstrates the inherent complexity that so often obstructs attempts to classify legal systems by legal families or systemic origins. Likewise, Myanmar offers a valuable point of departure for discussions on the use of comparative law and the need for it to go beyond comparison of rules to a deeper inves-

18 Melissa Crouch and Tim Lindsey tigation of the influence of social and political context on similarities and difference identified. The chapters in this volume demonstrate that there are multiple points of comparison that could be made, for example with post-socialist states, with transitional and democratising regimes, with common law countries, or with other legal systems in Southeast Asia. The nature of comparative law is such that these sorts of investigation may be of real practical benefit. It is significant, we think, that legal practitioners, Members of Parliament, and scholars in Myanmar involved in the law reform process have, in different ways, already shown interest in comparative law as they consider the possibilities inherent in the reform process. In closing, we note that the pace of reform in Myanmar has been rapid and this is unlikely to change in the short term. This volume cannot hope to keep up with those changes. Instead, we hope the snapshot of law in Myanmar this volume offers – law as it was lived until early 2014 – will become the basis for further research on, and engagement with, a society that for too long has been a blind spot for lawyers and scholars beyond its borders.

REFERENCES Antons, Christoph and Gessner, Volkmar (2007) Globalisation and Resistance: Law Reform in Asia Since the Crisis (Oxford, Hart Publishing). Biddulph, Sarah and Nicholson, Pip (eds) (2008) Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia (Leiden, Martinus Nijhoff). Cheesman, Nick (2012) The Politics of Law and Order in Myanmar (Australian National University, Department of Political and Social Change, PhD thesis). Chua, Lynette J (forthcoming 2014) ‘Socio-legal Research on Southeast Asia: Themes, Directions and Challenges’ Asian Journal of Comparative Law. Crouch, Melissa (2014) ‘Rediscovering “Law” in Myanmar: A Review of Scholarship on the Legal System of Myanmar’ 23(3) Pacific Rim Law and Policy Review 543–75. Darian-Smith, Eve (2012) Laws and Societies in Global Context: Contemporary Approaches (Cambridge, Cambridge University Press). Geertz, Clifford (1973) ‘Thick Description: Toward an Interpretive Theory of Culture’ in The Interpretation of Cultures: Selected Essays (New York, Basic Books). Gillespie, J and Chen, A (eds) (2010) Legal Reforms in China and Vietnam: A Comparison of Asian Communist Regimes (Abingdon UK, Routledge). Gillespie, J and Nicholson, P (eds) (2005) Asian Socialism and Legal Change: The Dynamics of Vietnamese and Chinese Reform (Canberra, ANU E Press and Asia Pacific Press). Gould, Jon B and Barclay, Scott (2012) ‘Mind the Gap: The Place of Gap Studies in Sociolegal Scholarship’ 8 Annual Review of Law and Social Science 323–55. Hooker, MB (1972) Adat Laws in Modern Malaya: Land Tenure, Traditional Government and Religion (Kuala Lumpur, Oxford University Press). —— (1975) Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (Oxford, Clarendon Press). —— (1978a) A Concise Legal History of Southeast Asia (Oxford, Clarendon Press). —— (1978b) Adat Law in Modern Indonesia (Kuala Lumpur, Oxford University Press). —— (1980) Native Law in Sabah and Sarawak (Singapore, Malayan Law Journal). —— (1984) Islamic Law in South East Asia (Oxford, Oxford University Press). Horowitz, Donald L (2012) Constitutional Change and Democracy in Indonesia (Cambridge, Cambridge University Press).

Introduction: Myanmar, Law Reform and Asian Legal Studies 19 Huxley, Andrew (1988–1989), ‘Burma: It Works, But is it Law?’ 27 Journal of Family Law 23. —— (1995) ‘Buddhism and Law: The View from Mandalay’ 18(1) Journal of the International Association of Buddhist Scholars 47. —— (ed) (1996) Thai Law: Buddhist Law Essays on the Legal History of Thailand, Laos and Burma (Bangkok, White Orchid Press). —— (1997) ‘The Importance of the Dhammathats in Burmese Law and Culture’ 1 Journal of Burma Studies 1. —— (1998) ‘The Last Fifty Years of Burmese Law: E Maung and Maung Maung’, LAWASIA 9. —— (2001) ‘Positivists and Buddhists: The Rise and Fall of Anglo-Burmese Ecclesiastical Law’ 143 Law and Social Inquiry 113. —— (2004) ‘Case Note: California Refuses to Apply Myanmar Law’ 6(1) Australian Journal of Asian Law 88. —— (2008) ‘Case Note: Comparative Law Aspects of the Doe v Unocal Choice of Law Hearing’ 1(1) Journal of Comparative Law 219. —— (2012) ‘Lord Kyaw Thu’s Precedent: a Sixteenth-Century Burmese Law Report’ in P Dresch and H Skoda (eds), Legalism, Anthropology and History (Oxford, Oxford University Press). International Bar Association (2012) ‘The Rule of Law in Myanmar: Challenges and Prospects’, www.ibanet.org. Lindsey, Tim (ed) (1999) Indonesia: Law and Society, 1st edn (Sydney, Federation Press). —— (2007) Law Reform in Developing and Transitional States (London, Routledge). —— (2008) Indonesia: Law and Society, 2nd edn (Sydney, Federation Press). MDRI and the Asia Foundation (2013) State and Region Governments in Myanmar (Yangon, Myanmar Development and Resource Institute). Miyazawa, Setsuo (2013) ‘Where Are We Now and Where Should We Head For? A Reflection on the Place of East Asia on the Map of Socio-legal Studies’ 22 Pacific Rim Law & Policy Journal 113. Myint Zan (2008) ‘Legal Education in Burma since the Mid-1960s’ 12 Journal of Burma Studies 63. Nicholson, Pip and Gillespie, John (2012) Law and Development and the Global Discourses of Legal Transfers (Cambridge, Cambridge University Press). Nicholson, Pip and Harding, Andrew (eds) (2009) New Courts in Asia (London, Routledge). Poh-Ling Tan (ed) (1997) Asian Legal Systems: Law, Society, and Pluralism in East Asia (Sydney, Butterworths). Sarat, Austin (2012) ‘What Transition Means to and for Law’ in Joshua Alexander Geltzer (ed), Transitions: Legal Change, Legal Meanings (Alabama, The University of Alabama Press). Sidel, Mark (2008) Law and Society in Vietnam: The Transition from Socialism in Comparative Perspective (Cambridge, Cambridge University Press). Sidel, Mark and Hue-Tam Ho Tai (eds) (2012) State, Society and the Market in Contemporary Vietnam: Property, Power and Values (London, Routledge). Steele, Stacey (2010) ‘The Study of Asian Legal Systems in Australia and Professor Malcolm DH Smith’ in Stacey Steele and Kathryn Taylor (eds), Legal Education in Asia (New York, NY, Routledge). Steinberg, David I (1982) Burma: A Socialist Nation of Southeast Asia (Boulder, CO, Westview Press). —— (2010) Burma/Myanmar: What Everyone Needs to Know (Oxford, Oxford University Press). Taylor, Veronica (ed) (1997) Asian Laws through Australian Eyes (Sydney, Federation Press). Tomasic, Roman and Antons, Christoph (eds) (2013) Law and Society in East Asia (Farnham, Ashgate).

20 Melissa Crouch and Tim Lindsey LAWS Central Bank of Myanmar Law No 16/2013 (Pyidaungsu Hluttaw Law) Companies Act 1914 (The Burma Code, Vol XI) Constitution of the Republic of the Union of Myanmar (2008) Foreign Investment Law No 21/2012 (Pyidaungsu Hluttaw Law) Microfinance Law No 13/2011 (Pyidaungsu Hluttaw Law) Myanmar Special Economic Zone Law 8/2011 (State Peace and Development Council Law) Political Parties Registration Law No 2/2010 (State Peace and Development Council Law) Securities Exchange Law No 20/2013 (Pyidaungsu Hluttaw Law)

2 A Short Research Guide to Myanmar’s Legal System MELISSA CROUCH AND NICK CHEESMAN*

R

ESEARCHERS OF MYANMAR’S legal system have faced similar challenges to researchers of the country from other disciplines over the past few decades. Access to resources, particularly for foreign researchers, was severely limited prior to 2011. Due to heavy censorship and the overall decline in legal education and professionalism in Myanmar from the 1960s onwards, much of the research produced locally is of a low standard. Most of it follows rather narrow, well-trodden paths, and rarely raises critical questions or engages with the larger empirical problems facing legal institutions and legal professionals in Myanmar. Despite the challenging conditions, many legal sources do, however, exist, both in print and online. This chapter identifies some of those materials and is oriented towards primary sources, although it also includes some limited discussion of secondary sources by Burmese authors.1 The chapter is focused on laws and institutions introduced from the British colonial period onwards. It divides the materials thematically, and discusses what is available to researchers in English and Burmese languages. Read in conjunction with the introductory chapter in this volume by Crouch and Lindsey, it provides signposts to legal materials for future research. LAWS AND REGULATIONS

While a range of national laws and regulations are available online in different places, no comprehensive or central resource of legislation currently exists for researchers or practitioners. Laws from the colonial era onwards have been printed in various compilations (see Table 2.1). The Burma Code, a 13-volume series running from the British colonial period to the mid-1950s, is available on the Supreme Court website. Some key statutes, such as the Penal Code, Civil Code, Criminal Procedure Code, Civil Procedure Code and Evidence Act, are widely available for sale in Myanmar, and can also be found online. Bilingual versions are available for most of these, although they generally have not been updated to incorporate amendments since the 1970s. During the period of par* The authors would like to thank Professor Myint Zan, Professor Andrew Huxley, Dr Christian Lammerts and Tun Zaw Mra for their useful comments on an earlier version of this chapter. 1 For a review of English language secondary sources on the legal system of Myanmar, see Crouch ( 2014).

22 Melissa Crouch and Nick Cheesman liamentary democracy after independence, the Parliamentary Acts (1955–61) were published every year. Subsequently, the Revolutionary Council Laws were published in Burmese in a three-volume set, covering 1962 to 1964, 1965 to 1972, and 1973 to 1974. After the 1974 Constitution was introduced, a compilation of legislation was published in the new legislature’s Pyithu Hluttaw Laws in Burmese (1974–88).2 The Office of the Attorney General (OAG, or Union Attorney General’s Office, UAGO) has published laws, in separate Burmese and English series, since 1988. In the English-language version, the laws were first published bi-annually from 1988 until 1999 (with the exception of 1990, which was published as a single volume) and then published annually from 2000. The laws are divided between those passed under the State Law and Order Restoration Council (1988–97), the State Peace and Development Council (1997– 2011), and, since 2011, the new Pyidaungsu Hluttaw. An important difference between the English and Burmese versions of the published laws is that while the former versions contain only laws, the latter also contain accompanying rules for the implementing of legislation, executive orders and instructions. The 1989 and 1990 editions also contain martial law orders. For earlier periods, editions published from 1974 to 1988 also contain rules and procedures, and, from 1955 to 1961, rules. The Office of the Attorney General established a website in 2012 that contains a basic overview and history of the organisation, its functions and divisions, again in English (see also UAGO 2011). It has also published a book in Burmese that contains a list of all consolidated legislation until 1997 (OAG 1998), and a report in English on the same (OAG 1997). For readers looking for something more current, U San Lwin has also compiled an index of laws (2010, Burmese and English). Table 2.1: Compilations of Laws Burma Code (13 volumes, legislation from 1818 to 1954, not chronological) Parliamentary Acts (1955–62, published annually) Revolutionary Council Laws (1962–74, three volumes) Pyithu Hluttaw Laws (1974–88) Myanmar Laws (1988–ongoing, published annually) – State Law and Order Restoration Council Laws (1988–97) – State Peace and Development Council Laws (1997–2011) – Pyidaungsu Hluttaw Laws (2011–ongoing)

The Government Gazette, which is published weekly in Burmese, contains the text of new legislation, as well as executive orders and instructions, details of the establishment and recomposition of committees, promotions and postings of gazetted officers, and other relevant matters. The Gazette is available on the website of the Ministry of Information, which also contains copies of some draft laws. Draft laws and enacted laws have also been published in newspapers, usually in the Burmese-language Myanma Alin and The Mirror (Kyemon), and sometimes in the English-language New Light of Myanmar.

2 Pyithu Hluttaw Ubade. 1974–88. Rangoon, 1974–88 (Gazette extraordinary). See http://referenceworks. brillonline.com/entries/foreign-law-guide/myanmar-session-laws-COM_138408?s.num=11.

A Short Research Guide to Myanmar’s Legal System 23 From time to time, government ministries and departments publish books with collections of relevant laws and other instruments on specific topics. For instance, the Ministry of Immigration and Population has published a number of collected volumes of laws and rules relevant to its mandate. Some ministries and government departments now also have websites that contain laws and regulations specific to their field, such as the Ministry of Labor, Inland Revenue and the Directorate of Investment and Company Administration (DICA). In 2013 the Pyithu Hluttaw (Lower House), Amyotha Hluttaw (Upper House) and Pyidaungsu Hluttaw (Union Parliament) launched websites that contain parliamentary discussions and debates, and some laws. For example, at the time of writing, the Pyidaungsu Hluttaw had uploaded laws from 1974 and 1975. The President’s website contains a wealth of information on executive notifications, ordinances, rules and announcements made since 2011, which are available in English and Burmese although some sections of the website (such as ‘Laws’) are incomplete. For earlier periods, availability of such documentation varies. The State Law and Order Restoration Council issued a number of volumes of its instructions, some of which concern the judiciary, as did the Council of State during the BSPP era. The Revolutionary Council issued annual volumes of instructions and announcements out of the chairman’s office. The three post-colonial Constitutions, 1947, 1974 and 2008, have been published in a variety of forms, and all of them are available online. Both the 1947 and 2008 Constitutions are available in bilingual Burmese-English versions, with concurrent text on opposing pages, although the English translation of the 2008 text is of a poor quality and ought not be relied upon to give an accurate impression of the original. English translations of the 1974 Constitution, officially published in Burmese, are also readily available. Finally, a large body of literature exists on pre-modern Burmese law and ‘customary’ law during the modern period.3 Lammerts (2010) presents the most recent and comprehensive list of pre-modern law, as well as in-depth discussion of surviving pre-modern legal texts and manuscripts (see also Lammerts 2013). Other English-language sources that provide an introduction to, and discussion of, the pre-modern legal texts are Huxley (1997) and Okudaira (1986). Among the Burmese-language texts worth examining in this regard is U Aung Than Tun’s three-volume History of Myanmar Dhammasats (2005–07). On the colonial genealogy of Burmese ‘customary’ law, which has at times been referred to as ‘Burmese Buddhist law’, see Orlan Lee (1978). Scholars interested in pre-colonial courts and jurisprudence may consult Htun Yee’s multi-volume collection of Konbaung-era legal cases (2006) or Yandameit Kyaw Htin (1965), although many records remain unpublished. On the royal legislation of the Burmese monarchs, see especially Than Tun, ‘Royal Orders of Burma’ (1983–90). On late pre-modern judicial administration and state law see Taw Sein Ko’s (1914) records from the Hluttaw. An excellent overview and discussion of the judicial system in the eighteenth and nineteenth centuries is provided by Kyin Swi (1965).

3 We are grateful to Associate Professor Christian Lammerts and Professor Andrew Huxley for drawing some of the pre-modern legal texts and sources to our attention.

24 Melissa Crouch and Nick Cheesman COURTS AND LEGAL PERIODICALS

A consolidated list of law reports from the colonial period until the present is included in Table 2.2 below. No single law report series ran continuously through the colonial era. Instead, a range of volumes were published over different periods, all in English, some of them also translated into Burmese. Until 1922 the courts in respect of which official reports were produced were the Chief Court in Rangoon and the Court of the Judicial Commissioner in Mandalay (see Cheesman, this volume), and the High Court in Rangoon. At independence in 1948, the Burma Law Reporting Council took responsibility for publishing the Burma Law Reports. Until 1962 the Chief Justice chaired this Council, which consisted of legal practitioners and officers from the OAG (Win Maung 2001). Throughout this time the Law Reports consisted of the decisions of the Supreme Court and High Court and were mainly in English, with some cases reported in Burmese. From the 1960s, cases were increasingly reported in Burmese – and since the 1970s only in Burmese. The Burma Law Reports from 1962 to 1973 include volumes of decisions of the Chief Court – the new apex court formed out of the merging of the Supreme Court and High Court – the Courts-Martial Appeal Court, and the newly-established Special Criminal Courts’ Appeal Court. From 1974 to 1988 the Burma Law Reports published decisions of the Central Court, which superseded the Chief Court, and, after 1988, of the revamped Supreme Court. Table 2.2: List of Law Reports Agabeg’s Burma Law Reports (1895 to 1908) Vols I to XIV. All India Reporter, Rangoon (1923–37). Burma Law Times (1907–20), Vols I to XIII. Burma Law Journal (1922–27), 6 volumes. Burma Law Reports (1948–). This includes the following editions: High Court and Supreme Court (1948); Supreme Court (1949–62); High Court (1949–62); Chief Court (1962–70), which included decisions of the Court Martial Appeal Court (1962–68); and Special Criminal Courts Appeal Court (1966–73); and the Central Court (1974–1988). From 1989, only decisions of the new Supreme Court were recorded in the Myanmar Law Reports (1989–ongoing). Indian Law Reports Rangoon series [1923–37 (March)], Vols I to XIV. Lower Burma Rulings of the Chief Court, Rangoon (1900–22), Vols I–XI, 1900–02, then published bi-annually. Printed Judgments of Lower Burma (1893–1900). Rangoon Law Reports (1937–42; 1946–47). Selected Judgments of Lower Burma (1872–92). Special Criminal Courts Appeal Court Rulings (1965–70). Upper Burma Rulings of the Court of the Judicial Commissioner, Mandalay (1892–1922) published irregularly: 2 volumes for 1892–96, 1897–1901, 1902–03, 1904–06, 1907–09; and a new series for 1910–13, 1914–16, 1917–20, and 1921–22.

Various law digests of court cases have been published, as set out in Table 2.3 below. Among the most comprehensive and best organised prior to the 1970s are Herbert

A Short Research Guide to Myanmar’s Legal System 25 Dunkley’s Digests for 1872 to 1922 and 1923 to 1937; U Hla Aung’s Digest of Criminal Rulings for 1956 to 1972; and U Thein Han’s Digest of the same, for 1956 to 1968. New digests that include cases from more recent decades are now appearing. Table 2.3: Law Digests CK Tambe’s Decennial Digest of Burma Rulings 1923–32. Digest of Buddhist Law, 2 volumes, Government Press 1905. Herbert Dunkley’s Digests 1872–1922 and 1923–37. Myint Naing’s Digest of Burma Rulings (Criminal and Civil) 1973–93. Sai Maung’s Digest of Burma Rulings (Criminal and Civil) 1977–89. SS Halker’s A Digest of Civil Rulings in Burma 1872–1925 (2 volumes). SS Halker’s A Digest of Criminal Rulings in Burma 1872–1925. U Aung Thein, Myanmar Naingngan Taya-siyindôn mya [Digest of Myanmar Rulings 1999–2009]. U Ba Gyi’s The Criminal Digest (year unknown). U Hla Aung, Myanma Naingngan Siyindôn-mya Kauknôk-chet (Yazawut Hmugin-mya) 1956–1972 [Extracts of Burma rulings (Criminal Cases) 1956–1972]. U Po Tha’s Digest of Burma Rulings 1937–55. U Thein Han’s Digest of Burma Rulings (Criminal and Civil) Rulings 1956–72.

Since 1998 the Supreme Court has irregularly published the Judicial Journal, which is mostly in Burmese but also contains a short section in English. The OAG has published its own Law Journal since 1999, again irregularly and again in Burmese with an English section. Law departments at universities and bar councils have also sporadically published annuals. These periodicals mostly offer articles and photographs on their associational activities, together with general interest pieces, but also contain some analysis and commentary. In December 2012 legal professionals began publishing the Legal Affairs monthly magazine, the first privately produced legal periodical to appear in Myanmar since media liberalisation in 2011. The Burma Lawyers’ Council (BLC), originally based in Thailand, has published a number of legal periodicals.4 Table 2.4: List of Law Journals Journal of Constitutional Affairs (began in 2003 by BLC, in Burmese) Judicial Journal (since 1998 by the Supreme Court in Burmese with English section) Law Journal (since 1999 by the OAG in Burmese with English section) Lawkapala Ubade Yeya Sazaung (Lawkapala Legal Affairs Periodical) (BLC, in Burmese) Legal Journal on Burma (began in 1997 by the BLC in English) Mandaing Law Review (in Burmese, with an English section) The Burma Law Institute Journal 1958–60 The Legal Affairs Magazine (began in 2012, in Burmese) The Legal Mirror Magazine (began in 2012, mostly in English) Universities Law Journal (from 1980 to 1985, in Burmese)

4 The BLC is the primary organisation of lawyers in exile on the Thai-Burma Border. It was declared an ‘unlawful association’ under the Unlawful Associations Act 1908 by Order 1/2009. At the time of writing, the BLC maintained an office in Mae Sot, Thailand.

26 Melissa Crouch and Nick Cheesman The Supreme Court publishes its own fortnightly Burmese-language gazette in hardcopy. This covers a range of internal administrative and legal matters, including transfers, promotions and retirements of judges, instructions and memoranda, and disciplinary action taken against judges, judicial bureaucrats and lawyers. Further, the Supreme Court launched a website in June 2013, and for the first time has made case lists publically available, with future dates for court trials. The website also contains the Court’s journal, and some electronic versions of the Myanmar Law Reports, although at the time of writing only reports from 2003 to 2012 had been uploaded. As to internal instructions and regulations, in 1970 the apex court published a useful volume of extracts from General Letters and Instructions issued to lower courts for the period 1946 to 1970. The text is in the language of the original documents: mostly Burmese, but some English. A separate volume in Burmese contains the full text of all General Letters for 1962 to 1969. The Supreme Court in 1989 published a volume of instructions issued by the Council of People’s Justices, the supreme judicial body in the socialist period, for 1974 to 1988. After 1988 the Supreme Court irregularly published volumes of its orders, instructions and memoranda, among which the most comprehensive volume is a compilation on judicial affairs for the period 1988 to 1997. Other volumes for the period 1993 to 1997 address judicial affairs, civil service affairs and support, and managerial issues. Further editions cover 1998 to 2001. The text of all these publications is only available in Burmese. Finally, the Constitutional Tribunal, established in 2011, launched a website in 2012, which includes its court decisions in Burmese, with some in English although at the time of writing it had only heard five cases. It also publishes its own decisions in hardcopy volumes. Some have also been published in The New Light of Myanmar.

OTHER PRIMARY SOURCES

A range of official manuals and compilations address various areas of law and regulation. Some of these volumes are used in courts, law offices and police stations daily. They include the Courts Manual, last updated and made available as a bilingual edition in 1999, although the most commonly available version seems to be the 1978 Burmese text. They also include the four-volume Police Manual, which was completely overhauled and reissued only in Burmese in 2000. The Myanmar Police Force website now has scanned versions of the Police Manual online. Older versions of the colonial-era Police Manual are available in English for the purposes of historical research, and some special agencies, like the Criminal Investigation Department, have also had their own manuals. The revised Jail Manual was reissued in 1994 although it underwent fewer revisions compared to the English original than the Police Manual. A list of manuals up to 2001 is available in Aung Than Tun (2001: 152). Other important regulatory books include the Law Offices Manual, issued by the OAG in 2002, and the Civil Service Discipline Manual, which sets out how investigations and action are to be taken against public servants – including judicial personnel – for misconduct. A variety of supplementary texts amplify the contents of the latter manual. The OAG (2001) has also published a handbook detailing lawyers’ responsibilities and rights, which includes the texts of relevant laws. A range of other official and quasi-official publications also deal with aspects of the law and legal system. In the early 1970s, the Chief Court published volumes outlining

A Short Research Guide to Myanmar’s Legal System 27 the new socialist judicial system. Dr Maung Maung’s 1975 book on the system is doctrinal in its content and is a quasi-official text. The Burma Socialist Programme Party (BSPP 1980) published a compilation of articles on the judiciary in its periodicals (such as Lanzin Thadin). University-based historians have also produced texts that touch on law and the legal system in various periods. A two-volume edition deals with the writing of the 1947 Constitution (Kyaw Win et al 1990), and part of the third volume in another series covers the 1974 Constitution (Thein Hlaing and Khin Hla Han 1993). The latter text was translated into English as The Myanmar Political System in Change (1962–1974). Governments in successive periods have published books touting their claimed successes, including regarding legal affairs and the judiciary. For the caretaker government period (1958–60) see, for example, Is Trust Vindicated? (Government of the Union of Burma 1960; also available in Burmese), and a 1974 text summarises achievements for the Revolutionary Council period (in Burmese only). In the 1990s and 2000s, the State Law and Order Restoration Council (SLORC) published three volumes listing its ostensible achievements, and each contains sections on law and the judiciary. These volumes are available in both English and Burmese, published separately, in English with the title Nation Building Endeavours, covering the periods 1988 to 1991, 1992 to 1994, and 1995 to 1997. The Ministry of Home Affairs (MOHA) published its own volume in 2000, in Burmese. This book has lengthy sections on the police force, prisons, and the Bureau of Special Investigation. SECONDARY LEGAL MATERIALS BY BURMESE AUTHORS

Some of the more prolific authors on law and legal affairs in Myanmar during recent years include U Kyaw Zeya, a Supreme Court advocate; U Myint Aung, a retired judge; U Htin Zaw, a former Supreme Court director; U Tin Ohn (also known as Maung Tin Ohn); and U Chit Maung, another advocate of the Supreme Court, among others. Their work varies in quality, and often contains large extracts cut and pasted from primary sources (such as legislation). U Hse Maung, former director of the Central Court, published an autobiography (2000), which despite being a disorganised and largely unedited compilation of events and anecdotes contains some nuggets on important events and personalities. Classic texts from earlier periods include various publications by Maung Maung (1956, 1961, 1963) before he joined the Revolutionary Council; Maung Maung Kyi’s 1967 ‘new approach’; and U Aung Than Tun’s ‘Four Eras’ (1968). Myint Zan is the only expatriate Burmese researcher who has studied the legal system and written on it extensively, mostly in academic journals from the 1990s onwards.5 Among the more popular handy reference books used by professionals in Myanmar is U Mya Sein’s 1982 guide, which contains sections on the structure of the courts (now out of date), criminal laws, customary law and civil law. U Ba Kyaing, a former director of the OAG has published a number of compilations of key laws that are also widely used, including his ‘special and miscellaneous’ laws (2003), and another volume on laws and regulations relevant to the police (2004). He has published many other practical guides 5

The publications of Professor Myint Zan are referenced throughout the chapters in this volume.

28 Melissa Crouch and Nick Cheesman for lawyers. U Mya, a retired Supreme Court director, published a useful book (1992) on special appeals to the court, which at the time were an innovation. The book contains an outline of relevant jurisprudence, some early rulings, and related analysis. New opportunities to publish since 2011 have encouraged authors to put out books on new and hot topics, like the rule of law, constitutionalism, and citizenship. Many of these works are compilations of opinion pieces from news periodicals. Among monographs, U Than Htaik has published a detailed although hard-to-find survey of constitutions in Myanmar (2013), and U Tin Win has published a handy resource book on writs (2012). Notwithstanding, in contrast to some other fields, such as the flourishing literature on political movements and political resistance to dictatorship, locally published legal scholarship in the years since the end of direct military rule has remained largely conservative. A variety of legal dictionaries exist, none of them particularly comprehensive or consistent. The OAG has published an English-Myanmar Legal Dictionary (UAGO 2010), with a list of English legal terms and their Burmese equivalent. U Ba Kyaing (2002) and U Kyaw Zeya (1996) have also put out their own dictionaries: the former is, like the OAG text, only English-Burmese; the latter is both English-Burmese and Burmese-English but is divided into an array of issue-based, overlapping subsections that make it difficult to use. Notably, all the prominent legal authors in Myanmar during recent years have been men: hence the honorifics ‘U’ and ‘Maung’ that appear throughout this chapter, and the absence of any ‘Daw’ or ‘Ma’. Although women have published articles and occasional books,6 none of them are particularly well known. This is despite the fact that, at the time of writing, all law professors in Myanmar are women. Women’s views are desperately needed, and hopefully in the current period of political change they will find their way to the fore, to the betterment of legal scholarship in Myanmar. RESOURCES AND NETWORKS

In terms of online research databases, the largest source for Burma Studies materials generally is the Online Burma/Myanmar Library, which has links to documents in both English and Burmese where available, and includes both primary and secondary resources. It contains a specific section on legal materials, divided into two sections. The first, ‘Texts’, contains national laws, draft laws, other legal regulations, and orders and announcements issued by the military. The second section contains commentary, primarily by non-government organisations, international organisations, the government, scholars and journalists. The BLC website also contains a large range of legal material, however it has not kept the site up to date and some links are now broken. There are a number of other online sources of laws, usually subject-specific. For example, Displacement Solutions has compiled laws relating to land and property; and Network Myanmar contains past laws and documents on the Constitution and the elections.

6 One recent exception to this is the compilation of constitutional writ cases by Daw Mar Lar Aung (2011), which is discussed further in Crouch (this volume).

A Short Research Guide to Myanmar’s Legal System 29 For material not available online, researchers have the option to purchase, or use a library. In Myanmar, booksellers specialising in legal texts tend to situate themselves close to court premises, like the High Court buildings in Yangon. Researchers interested in a wider array of materials covering a longer time frame need to spend time in secondhand stalls and bookshops. For researchers outside the country wanting to buy or find texts other than through private sources, Dr Thant Thaw Kaung’s Myanmar Book Centre is currently the only reliable and professional channel. The Centre has a large range of materials on its premises in Yangon, and staff can search for materials elsewhere, if researchers have specific requests. Accessing libraries in Myanmar had until recently required negotiating skills and connections. Although changing conditions give cause for optimism that previously off-limits collections in the country will become more open in the foreseeable future, the most accessible library collections of legal materials on Myanmar are currently abroad. These include the collections at the Library of Congress in the US, the British Library and Cambridge University Library in the UK, and the National Library of Australia (NLA). The NLA collection, for example, includes a complete set of the law reports from 1948 onwards, and most of those from 1892; the Government Gazette from 1974; the Supreme Court Gazette from 1994 onwards; a range of periodicals and books by key authors; university texts; official handbooks; volumes of legislation; and bibliographies. It also houses some rare unpublished documentation, such as files from courts going back to the late colonial period. University libraries, such as those at Cornell and Northern Illinois, the National University of Singapore and the Australian National University, also have patchy collections accessible to researchers at those institutions. A number of bibliographies provide extensive lists of references available in the broad area of Burma Studies, which include sections on law. One example is The Bibliography of Burma (Myanmar) Research: The Secondary Literature by Charney (2004). This bibliography includes references on the early modern law and politics (2004: 33–4), law and court life in the Konbaung Dynasty (2004: 48–52), law enforcement in the colonial period (2004: 99), and a general section on law that includes Burmese Buddhist law, constitutional law, and the legal profession, among others (2004: 171–74). For a general literature review of material since 1988, see Selth (2012). The department of library studies at Yangon University has also had students periodically compile bibliographies of dissertations on law, some of which are available for sale off campus. For those seeking to connect with international academic networks and conferences, the Burma Studies Group, which is part of the Association for Asian Studies, hosts a biennial Burma Studies Conference at a different location each time. The Myanmar/Burma Update Conference is also held every two years at the Australian National University in Canberra. The conference website contains links to publications coming out of the event, among which recent volumes published by the Institute of Southeast Asian Studies have included chapters on law and legal issues. The Myanmar Law Google group serves as an online forum for current news posts and discussion among researchers and practitioners. To conclude, an increasingly wide range of legal materials is available for the study of the legal system of Myanmar, especially to researchers familiar with the Burmese language. We are under no illusion as to the challenges to accessing these materials, and the need both for greater depth and quality of legal research. Nevertheless, we hope that identifying key legal references and materials will facilitate future research on the legal system of Myanmar.

30 Melissa Crouch and Nick Cheesman

REFERENCES Aung Than Tun, U (1968) Kit Le Kit Myanma Taya-ubade [Four eras of Burmese law] (Rangoon, Kalaungpyan Press). —— (2001) Myanmar Laws Digest (Yangon, Innwa Publishing House). —— (2005) History of Myanmar Dhammasats, 3 vols (np, Sabebiman). Ba Kyaing, U (2002) Legal Dictionary (South Dagon, Sitthidaw Press). —— (2003) Adu hnin Adwedwe Ubade-mya Paung-chôk [Collected special and miscellaneous laws], 4th edn (South Dagon, Sitthidaw Press). —— (2004) Yè Tawan-mya hnin Thet-saing-thaw Ubade Yeya Abyabya [Police duties and various related legal issues] (self-published). BSPP (1980) Padi Yeya Sazaung-pa Taya-siyinye-saingya Saungpa-mya [Articles on the judiciary in the Party Affairs Journal] (Rangoon, Burma Socialist Programme Party). Charney, Michael (2004) ‘The Bibliography of Burma (Myanmar) Research: The Secondary Literature’, revised 2004, SOAS Bulletin of Burma Research Bibliographic Supplement, Winter, 1. Crouch, Melissa (2014) ‘Rediscovering ‘Law’ in Myanmar: A Review of Scholarship on the Legal System of Myanmar’ 23(3) Pacific Rim Law and Policy Review 620–45. E Maung (1951) The Expansion of Burmese Law: A Series of Lectures (University of Rangoon, Royal Print Works). —— (1970) Burmese Buddhist Law (Rangoon, Sapaylawka Printing Works). Government of the Union of Burma (1960) Is Trust Vindicated? (Rangoon, Director of Information). Hse Maung, U (2000) Kyundaw-i Pyithu Wundan Bawa [My life as a public servant] (selfpublished). Htun Yi (2006) Konbaung kit pyatsa pôn chôk (Yangon, Myanma hmu Biman Sape Ban). Huxley, Andrew (1997) ‘Studying Theravada Legal Literature’ 20(1) Journal of the International Association of Buddhist Studies 63–92. Kyaw Win, U, Mya Han, U and Thein Hlaing, U (1990) Taingyintha Lumyo-mya A-ye hnin 1947 Achegan Upade [National races affairs and the 1947 Constitution], 2 vols (Yangon University, History Department). Kyaw Zeya, U (1996) Ubade Wawhara Paung-chôk [Collected legal terms] (Yangon, Sagapyawnethu-mya Press). Kyin Swi (1965) The Judicial System of the Kingdom of Burma (University of London, School of Oriental and African Studies, PhD dissertation). Lammerts, D Christian (2010) Buddhism and Written Law: Dhammasattha Manuscripts and Texts in Premodern Burma (Cornell University, PhD dissertation). —— (2013) ‘Narratives of Buddhist Legislation: Textual Authority and Legal Heterodoxy in 17th– 19th Century Burma’ 44(1) Journal of Southeast Asian Studies 118. Lee, Orlan (1978) Legal and Moral Systems in Asian Customary Law: The Legacy of the Buddhist Social Ethnic and Buddhist Law (Hong Kong, San Francisco, Chinese Materials Centre). Maung Maung (1956) Burma in the Family of Nations (Amsterdam, Djambatan Ltd). —— (1961) Burma’s Constitution, 2nd edn (The Hague, Martinus Nijhoff). —— (1963) Law and Custom in Burma and the Burmese Family (The Hague, Martinus Nijhoff). Maung Maung, Dr (1975) Taya-ubade Adwedwe Bahuthuda [Legal general knowledge] (Rangoon, Win Maw Oo Press). Maung Maung Kyi (1967) A New Approach to Life and Law in Burma (Rangoon, n.p.). MOHA (2000) Thamaing Hmattan hnin Swunzaung-chet-mya [Historical record and achievements] (Yangon, Government of the Union of Myanmar). Mya, U (1992) Agwindu Ayuganhmu-mya [Special appeal cases] (Yangon, Sitthidaw Press). Mya Sein, U (1982) Athôn-cha Ubade Paung-chôk [Practical legal compendium], 2nd edn (Yangon, U Myint Aung Press).

A Short Research Guide to Myanmar’s Legal System 31 OAG (1997) The Index of Myanmar Laws and Amendments (the Laws Enacted and the Laws Repealed up to 31 December 1997) (Yangon, Office of the Attorney General). —— (1998) Myanma Naingngan Ubade-mya hnin Pyinzinchet-mya A-nyun [Guide to Myanmar laws and amendments] (Yangon, Office of the Attorney General). —— (2001) Shene-sheyat-mya-i Kyinwut-theikka-mya Tawan-mya hnin Agwin-aye-mya [lawyers’ code of conduct, responsibilities and rights], 3rd edn (Yangon, Office of the Attorney General). Okudaira, Ryuji (1986) ‘The Burmese Dhammathat’, in M B Hooker (ed), Laws of South-East Asia. Vol 1: The Pre-Modern Texts (Singapore, Butterworths & Co), 23–142. Revolutionary Council (1974) Tawhlanye Kaungsi-i Lôksaung-chet Thamaing Agyin-chôk [Concise history of the Revolutionary Council’s activity] (Rangoon, Printing and Publishing Corporation). San Lwin, U (2010) General Index of Myanmar Laws, 2nd edn (Yangon, n.p.). Selth, Andrew (2012) Burma (Myanmar) Since the 1988 Uprising: A Select Bibliography (Griffith Asia Institute, Griffith University). Taw Sein Ko (1914) Selections from the Records of the Hluttaw (Rangoon, British Burma Press). Than Htaik, U (2013) Myanma Naingngan Pwèzibôn Ubade Thabawtaya hnin Pwèzibôn Ubademya [myanmar constitutionalism and constitutions] (Yangon, Sheyat Press). Than Tun, (1983–90) The Royal Orders of Burma, AD 1598–1885. (Kyoto, Centre for Southeast Asian Studies). Thein Hlaing, U and Dr Daw Khin Hla Han (1993) Myanma Naingnganye Sanit Pyaung Kala, 1962–1974 [A period of change to Myanmar’s political system, 1962–1974], vol 3 (Yangon, Universities Press). Tin Win, U (2012) Sagyudaw [Writs] (Mandalay, Nwewe Press). UAGO (2010) English-Myanmar Law Dictionary, 4th edn (Yangon, Union Attorney General’s Office). —— (2011) The Role of the Union of the Attorney General’s Office (Naypyidaw, Union Attorney General’s Office). Win Maung (2001) ‘Law Reporting in Burma: Lack of Transparency’ 8 Legal Issues on Burma Journal, April. Yandameit Kyaw Htin (1965) Yezagyo Kôndaw pyattôn (Yangon, Hanthawadi).

WEBSITES Amyotha Hluttaw, www.amyothahluttaw.gov.mm Burma Language Resources, SOAS, www.soas.ac.uk/sea/burmese Burma Lawyers Council, www.blc-burma.org Burma Studies Group, www.burmastudiesgroup.org Centre for Burma Studies, Northern Illinois University, www.burma.niu.edu/burma Constitutional Tribunal, www.myanmarconstitutionaltribunal.org.mm [in English and Burmese] Displacement Solutions: http://displacementsolutions.org/ds-initiatives/burma-hlp-initiative Ministry of Information, Legal Section, [in Burmese only], www.moi.gov.mm/laws Myanmar/Burma Update Conference Series, http://asiapacific.anu.edu.au/asiapacific-region/ myanmarburma-update Myanmar Law Google Group [online], [email protected] Myanmar Police Force, www.myanmarpoliceforce.org Network Myanmar, www.networkmyanmar.com/index.php/political-database New Light of Myanmar, www.myanmar.com/newspaper/nlm/index.html Office of the Attorney General of Myanmar, www.oag.gov.mm/ [in English and Burmese] Online Burma/Myanmar Library, www.burmalibrary.org/index.php President’s website, www.president-office.gov.mm/en/hluttaw/laws [English and Burmese version]

32 Melissa Crouch and Nick Cheesman Pyithu Hluttaw, www.lawdatabase.pyithuhluttaw.gov.mm Pyidaungsu Hluttaw, www.myanmarparliament.gov.mm Union Supreme Court website, www.unionsupremecourt.gov.m The World Law Guide, Legislation Myanmar, www.lexadin.nl/wlg/legis/nofr/oeur/lxwebum.htm

3 The Layers of Legal Development in Myanmar MELISSA CROUCH*

W

HEN LAWYERS, LAW professors or government officials in Myanmar today are asked what kind of legal system Myanmar has, the resounding response is that it is a ‘common law’ system.1 This advice is received as music to the ears of donors and investors from common law countries, who presume that the ‘common law’ has the same meaning everywhere and that this will facilitate future legal transplants of common law models. Although Myanmar has a legal system derived from a British colonial model, it has developed since then. There remain some similarities with its common law heritage, such as that judges and lawyers follow judicial precedent where it exists, but in many areas of law it is virtually non-existent (see Tun Zaw Mra, this volume; Tun, this volume). To really understand what kind of legal system Myanmar has and how it operates today, it is necessary to look beyond the ‘common law’ label. There is a need to carefully reconsider the wider history of its legal institutions, the patterns of law-making and the role of law-makers. In this chapter, I respond to this challenge by surveying the layered legal history of Myanmar. This is not to suggest that Myanmar is somehow less than a common law legal system but, rather, to emphasise the diversity of legal institutions and legal practice within the common law world and recognise that Myanmar has not always been a part of it. My approach stresses multiple, and at times conflicting, layers of development in order to refute the perception that law reform has occurred alongside what has been perceived by some outsiders as the ‘big bang’ of political reforms since 2011. This allows us to consider the complexity inherent in the legal institutions within an ostensibly ‘common law’ system, and the detours, bumps and sharp bends that obstruct the road to reform. Like many other colonies, Burma experienced the devastating effects of British imperialism. Its experience of British colonialism was the shortest in Southeast Asia,2 and this meant that the colonial legal system did not evolve over a long period of time but was largely imported from British India. The legal system also developed in ways distinct

* I would like to sincerely thank Nick Cheesman, Andrew Selth, Christian Lammerts, Ben Schonthal, and Tun Zaw Mra for comments on an earlier draft of this chapter. All errors remain my own. 1 I do not propose to go into the detail of debates about legal families and classifications of legal systems. Rather, my aim is to draw out different influences and forces that shaped the legal system of Myanmar. 2 This is, of course, leaving aside Thailand, which was the only country in Southeast Asia that was never colonised.

34 Melissa Crouch from other former British colonies because at independence it was one of only two former colonies to reject the British Commonwealth, and this severed ties with the courts and legal profession in England. The fact cited most often to emphasise Myanmar’s distinct context is, however, that its military has dominated the political sphere since 1962 (Egreteau and Jagan 2013: 9), which means that the armed forces have exerted significant influence over the legal system. Keeping this in mind, I seek to explore how judicial and legal institutions relate to political developments, as many other Asian legal studies scholars such as Lev have done (Lev 2000: 161). Specifically I examine the origins of the law in Myanmar, the key influences on the development of the modern system and the direction it has taken. While each successive regime issued reassurances about the continuity of laws, the reality is that, following independence, laws were often superimposed on a fragile constitutional order and used to justify violence, exploitation and military rule. This does not mean that law was irrelevant or meaningless but rather that we need to take a closer look in order to understand what law means in authoritarian settings (Ginsburg and Simpser 2014; Ginsburg and Moustafa 2008) and the ways in which remnants of these legal nightmares overshadow present reform efforts. THE ORIGINS OF BURMESE LAW

The area that we know today as Myanmar was ruled by a series of different kingdoms. The first to be established by the Burmans was known as the Kingdom of Bagan. While there were interregnums between some kingdoms, the period of the kings clearly ended with the downfall of the Konbaung dynasty in 1885. Prior to this, a distinct legal culture had developed over time in Burma (Huxley 2008: 184). Our understanding of precolonial legal culture is informed by primary sources that date to the twelfth century and contain inscriptions with records of judicial disputes.3 These sources indicate that a body of written law known in Burmese as dhammathat was used in the adjudication of cases.4 The dhammathat can be classified into two types: ‘manual texts’, or compilations of bodies of knowledge; and ‘narrative texts’ that contain a full legal story from beginning to end (Lammerts 2010: 208–28). It was the second style of narrative texts that characterised the dhammathat and distinguished it from other types of written law in pre-modern Burma (Lammerts 2010: 366). The dhammathat were like a guidebook for judges, whose legal authority was based on their educational background and moral standing (Lammerts 2010: 434, 492). They do not easily equate to a common law understanding of law reports, legislation, codified law or religious texts (Huxley 1988–89: 24). In addition, records and texts from the fifteenth and sixteenth centuries demonstrate that court cases and other literature also made reference to other recognised sources of law. These include pyathtôn, which were essentially compilations of judge-made precedent; yazathat, or law made by the king (Lammerts 2010: 3); canonical and non3 The work of scholars such as Kyaw Yin (1968) and Lee (1978) seek to explain the legal system under the period of the kings, yet their simple narrative has at times reduced or obscured the complexity of the legal tradition and its development over time. One scholar who begins the task of rereading primary sources is Lammerts (2010). 4 For an analysis of the significance of dhammathat to Burmese legal culture, see Huxley 1997. For a more extensive explanation of its Pali etymology, see Lammerts (2010).

The Layers of Legal Development in Myanmar 35 canonical Ja- taka and related Buddhist narratives; and vinaya, monastic law, which in pre-modern Burma was, in certain instances, applied to the laity (see generally Lammerts 2010).5 The dhammathats are broadly structured around 18 major titles of law. These 18 titles comprise criminal, personal and economic matters; dhammathat also contain extensive rules on legal procedure, kingship and monastic law (see generally Lammerts 2010). The history of their reception is complex6 but until the eighteenth century dhammathat was generally regarded as a form of law that originated in Buddhist tradition and was preserved and passed down unaltered by legists and kings. After the eighteenth century Burmese legal scholars increasingly argued that dhammathat should also be understood as a product of human law-making to foster social prosperity so that merit making could be undertaken. Until the colonial era, dhammathat was regarded as authoritative Buddhist literature, on a par with, and, according to some authors, even included in, the Buddhist canon (Lammerts 2013). The kings, some of whom are now memorialised in imposing statutes at the capital city of Naypyidaw, sought to conquer local kingdoms and propagate Buddhism. They included the first main king, Anawratha (1044–77); King Bayinnaung (1551–81), who achieved unrivalled expansion of power; and King Alaungpaya (1752–60), who was the first to sign an agreement with a foreign power, England (Steinberg 1982: 18–24). The king was the head of the Hluttaw, the Supreme Council of State. The Hluttaw fulfilled numerous roles, including as a legislative chamber, a ministerial cabinet, and a court that had civil and criminal jurisdiction, and could hear appeals from lower courts (Kyaw Yin 1968: 62). Some kings have been noted for the significant legal reforms they undertook, such as King Mindon (1853–78), who initiated changes to the court system of administration and improved social infrastructure (Thant Myint U 2004: 109–29). King Mindon also introduced regulations to combat corruption, and facilitate greater specialisation by the courts, dividing them into civil and criminal jurisdictions (Yi Yi 1962: 11–19). As this legal tradition developed, a unique legal profession emerged,7 which was already established by the twelfth century (E Maung 1951: 15). Law advocates were known by the term she-ne, which aptly captures the role of lawyers as advocating on behalf of their clients because it literally means ‘those who stand in front’ (Huxley 1994: 219). This rich legal tradition and its profession of ‘tradition bearers’ came to an abrupt end in the 1880s (Huxley 2008: 199). The onset of colonialism led to the intentional decimation of a highly literate and professional legal culture (Huxley 1998). The social, political and legal customs and traditions established and developed during the period of the kings was profoundly disrupted and displaced by the AngloBurmese Wars (1824–26, 1852–53 and 1885), which were the result of both internal factors and external developments in the region. In the early 1800s, tensions rose between British and French colonial powers in Southeast Asia, and their rivalry and battle for ‘supremacy’ in the region led to the Anglo-Burmese Wars (Furnivall 1948: 70). The For an excellent analysis of the decline of the vinaya, see Huxley (2001). The literature on Burmese law under the kings has been preoccupied with the question of its origins (see for example Huxley 2008; E Maung 1951; Kyaw Yin 1968; Orlan 1978). Other scholars, such as Lammerts, have suggested that this debate on origins is misguided and based upon inaccurate presuppositions that stipulate strict sectarian divisions in the legal culture’ (2010: 487). For a more detailed review of scholarship on Burmese Law, see Crouch (2014). 7 For a detailed description of the judicial system of the kings of Burma, see Kyin Swi (1965). 5 6

36 Melissa Crouch British embarked on what became known as the First Anglo-Burmese War in order to cement the boundaries of British India. This led to the signing of the Treaty of Yandabo, ceding parts of southern and western Burma to the British, and the annexation of the Rakhine and Tenasserim regions. Mr Maingy, the first Commissioner of Tenasserim, set about establishing a judicial system but proceeded on the misguided assumption that all decisions of the Burmese courts were merely arbitrary (Furnivall 1991: 22). The British were not content with the Yandabo concessions, and after launching the Second Anglo-Burmese War of 1852, Rangoon and other parts of Lower Burma were ceded to them. British authorities then began to take steps to flesh out a legal system that they intended would consolidate territorial rule. In 1866 the Chief Commissioner was given power to enforce the laws of British India in Burma but did not have power to promulgate laws (Donnison 1953: 29). It was not until 1872 that the first Judicial Commissioner of Burma, Douglas Sandford, was appointed and took over judicial powers from the Chief Commissioner (Furnivall 1960: 12). In the same year, court decisions began to be reported for the first time, with the publication of the Selective Lower Judgements of Lower Burma. The ultimate demise of the monarchy and its system of law in Burma occurred as a result of the Third Anglo-Burmese War in 1885. King Thibaw, the last king of the Konbaung dynasty (1752–1885), and his family were captured by the British and shipped off to India. One effect of this final stage of the annexation of Burma to British India was to subsume it under the foreign common law tradition. COLONIAL DICTATORSHIP BY LAW ‘For legally, the Governor is the dictator of Burma’ (Aung San 1946: 96)

By 1890, the Indian Codes generally applied to Burma as a province of British India. Staple bodies of law, from criminal law to property to contracts, were copied wholesale from India, and many, such as the Penal Code, remain in force today, largely unaltered. Several laws were passed to establish a hierarchy of courts and administrative control that extended across Upper and Lower Burma. Through the Burma Laws Act 1898, Upper Burma came under the umbrella of British India as the final stage of annexation. This was also significant because it allowed for the recognition of customary law in matters of family personal law and remains valid today. The field of customary law, however, was only recognised in the confined areas of marriage, inheritance and divorce, a concession that did not interfere with the imperialist and empire-building aspirations of colonial authorities. The Burma Laws Act included customary law for Muslims, Hindus and Buddhists.8 This spurred debates, for example, about what ‘Burmese Buddhist law’ actually was, and scholars now generally agree that it is neither ‘Buddhist’, as it is not a religious text, nor is it ‘customary’ in the sense of being a collection of customs passed down over time (Huxley 1989: 24). In addition to religious-based legal norms, the Burma Laws Act also recognised customary law for some ethnic groups because Upper Burma was home to a diverse range of ethnic nationalities. Many of the areas that were home to particular ethnic groups were regulated under separate judicial and administrative systems under British rule, 8

Burma Laws Act 1898, s 13(1).

The Layers of Legal Development in Myanmar 37 and exceptions were provided for the use of customary law. For example, customary law applied in Shan State, provided the penalty for the offence complied with ‘the spirit of the law in force in the rest of British India’.9 This form of recognition of local traditions, although not without its limits, was therefore part of the broader territorial divisions in colonial administration. At the national level, in 1897, a Legislative Council was established in Rangoon and its members were responsible for assisting the Lieutenant Governor in drafting legislation for Burma. It was not until the early 1900s, however, that the judiciary was separated from the executive. There remained some cases in which judicial and executive functions were blurred, such as government officials who continued in their role as judges (Cheesman 2009–2010). In 1921, after pressure from nationalists, the British Parliament passed legislation granting Burma dyarchy, that is, the opportunity to elect Burmese to government departments. This legislative reform was followed by further judicial reforms. In 1922 a High Court was introduced, replacing the Chief Court of Lower Burma and the Judicial Commissioner of Upper Burma as the highest court of appeal, although its jurisdiction did not include Shan State, the largest of the ethnic areas, or other Frontier Areas (Furnivall 1960: 12). A decade later, pressure from its growing nationalist movement led to formal legal changes in Burma’s relations with British India. In April 1937 the Government of Burma Act 1935 came into force, and from then on Burma was considered to be a separate colony, no longer under British India administration. Similar in some respects to the Government of India Act 1935, it provided for the first bicameral legislature. Yet it was highly criticised for the way it enabled the Governor to retain ultimate executive power (U Maung Maung 1989: 7), as reflected in the quote from General Aung San at the beginning of this section. The Act was accompanied by the Government of Burma (Adaptation of Laws) Order 1937, which provided further details on the form of self-governance, and Dr Ba Maw was appointed the first Prime Minister. In 1926 the local legal profession had been formalised in line with the common law tradition, with the creation of a Bar Council similar to that in India.10 It consisted of 15 members, including the Attorney General as chairperson, four members nominated by the High Court, and 10 elected by advocates of the High Court. The Bar Council was responsible for regulating admission to practice and inquiring into cases of misconduct. The importance of the profession was reflected in the politics of the early 1920s when lawyers had a significant influence on legal and political developments, and were ‘central’ to the nationalist movement in Burma (Cheesman and Kyaw Min San 2013). Of the lawyers who formed this ‘barristocracy’, most had received their legal training at the Inns of Court in London (Huxley 2004). The pool of legal professionals remained small, however, and the early modern legal system of Burma was disproportionately shaped by a handful of prominent legal professionals (Huxley 1998). For example, E Maung (1889–1972) was a lawyer, and later became an academic at the University of Rangoon (1926–32). He went on to serve as judge of the High Court and then the Supreme Court, before being appointed to the role of Minister of Foreign Affairs (1949), Minister for Judicial Affairs (1958) and Minister for Home Affairs (1961). Throughout his life and work, he argued for the retention of 9 10

Burma Laws Act 1898, s 11. Bar Council Act 1926.

38 Melissa Crouch the common law legal system, despite it being ‘cut and pasted’ by the British from British India. He also published in areas such as Burmese Buddhist law and constitutional law. His contribution can be contrasted with Maung Maung (1924–94), who was a law officer in the Attorney General’s office from 1953, and in 1958 was promoted to the position of Assistant Attorney General. He studied at Utrecht University and was later a visiting fellow at Yale University. He became a judge in 1962 and was appointed Chief Justice in 1965. From 1971 to 1974 he was Minister for Judicial Affairs and a member of Ne Win’s Revolutionary Council. Maung Maung was responsible for the devastating restructuring of the legal system in the 1960s and 1970s and played a role in the drafting of the 1974 Constitution. While his initial writings contained exhortations to ideals of rule of law and constitutionalism (see generally Taylor 2008), it is clear that by the time he ended his public career – with his role as President in 1988 lasting for less than a few weeks and ending when the military took over – he had discarded those ideas. If the degeneration of the legal system of Burma, including its legal profession and legal education, could be attributed to any one person, it would be him. In the 1940s the administration and legal institutions of Burma were disrupted by World War Two and the invasion by the Japanese after a sustained attack on Rangoon in December 1941 (E Maung 1948). In 1942 the Governor of Burma suspended the jurisdiction of the High Court in Rangoon and later declared the courts closed. By May 1942 the Japanese had extended their rule from Rangoon to the rest of Burma. The invasion of the Japanese was the impetus for many Burmans to join the armed resistance,11 led by its founder General Aung San, who had become well-known as a leader of the Rangoon University Students Union in the 1930s. Some token legal measures were introduced during this time, such as the Japanese insistence that the Burmese draft a Constitution for the administration of Burma in 1943.12 The new Constitution provided for a Constituent Assembly, a cabinet led by a Prime Minister, and a Privy Council of up to 20 members to advise the head of state. The Constitution provided that all laws remained in force unless otherwise amended (art 23), and the courts continued to operate and, in theory, retained their independence (arts 29, 33). By 1945, however, the national army, led by General Aung San, had been corresponding secretly with the Allies and it turned against the Japanese, helping liberate Burma together with the British. In May 1945 the British reoccupied Burma and the Government of Burma Act came into force again. The British, however, no longer enjoyed unrivalled control over Burma as they once had. The independence movement had gained the momentum it needed to force the British to begin discussions. In January 1947 a delegation from Burma went to London to finalise negotiations. The result was the Aung SanAttlee Treaty for the transfer of power, signed by Prime Minister Clement Attlee and General Aung San as the head of the Burmese delegation, president of the Anti-Fascist People’s Freedom League (AFPFL) and Deputy Chairperson of the Executive Council of Burma. However it was not only the agreement with the British for independence that was crucial. The need for a political and legal settlement between the ethnic nationalities and the Burmans was also pressing. On 12 February 1947 Aung San made what many see as his most significant contribution to politics by meeting with leaders of the Shan, 11 Initially known as the Burma Independence Army, it later became known as the Burma National Army: see Callahan 2004. 12 Act to Enact a Scheme for the Government of Burma Act No 1 of 1305 BE (Japanese Constitution).

The Layers of Legal Development in Myanmar 39 Kachin and Chin ethnic nationalities. All parties present signed what is known and revered by many as the Panglong Agreement,13 an historic agreement that recognised the need for separate governance arrangements with ethnic nationalities. Despite the fact that not all major ethnic nationalities were included in this meeting, the Panglong Agreement remains a symbolic political pact between the majority Burmans and ethnic nationalities that also call Burma home. This historic occasion was followed in April by the elections to the Constituent Assembly and from June to September 1947, the 111-member Constituent Assembly met to draft the 1947 Constitution (Myint Zan 2000: 22). On 19 July 1947, however, General Aung San was assassinated, along with seven other members of the interim Parliament. 14 This event shook the nation and diverted the leadership trajectory of the soon-to-be nation state. The death of the martyrs, and, by implication, ‘what might have been’, continues to be commemorated annually on 19 July. Hopes of leaving the arbitrary rule of colonial authorities behind, as echoed in the words of Aung San above, were shaken as the reality of internal power struggles set in. INDEPENDENCE AND THE FRAGILITY OF CONSTITUTIONALISM ‘We can’t expect to eat the mango fruit of the mango tree we planted only yesterday’ (Prime Minister U Nu).15

On 4 January 1948 Burma achieved its independence and asserted itself as a ‘sovereign independent Republic’ according to the Constitution of 1947. Furnivall aptly captures the spirit of the 1947 Constitution in his assessment that it was ‘a liberal Constitution with socialist aspirations’ (Furnivall 1960: 31). As with all auspicious occasions in Burma, astrologers had fixed the day and time the 1947 Constitution would come into force (Maung Maung 1963: 15). Significantly, Burma chose not to join the British Commonwealth after independence due to pressures from politicians on the Left (Steinberg 2010: 46). This decision had practical implications for legal practise, such as ending court appeals to the Privy Council, and withdrawing opportunities for students to obtain scholarships to study law in England. The transition to independence and subsequent period of parliamentary democracy was far from peaceful, and no sooner had the British left (along with an exodus of many Indians) than other serious challenges confronted the new government. The task of governance was fraught with obstacles, including an armed struggle launched by the Communist Party of Burma (CPB),16 and ethnic insurgencies resulting from the breakdown of political agreements with some ethnic nationalities (Smith 1991). The military therefore found reason to consolidate its role in politics and administration. At independence, the Constituent Assembly became the Provisional Parliament and acted as a bicameral Parliament until the first elections were held. The President was not For the text of the Panglong agreement, see Tinker (1984: 404–05). The mastermind behind the assassination was a political opponent of Aung San, U Saw, a former Prime Minister of Burma (1940–42). The trial of U Saw is captured in detail by Maung Maung (1962b). 15 Prime Minister U Nu’s speech in the Constituent Assembly on 24 September 1947, moving the adoption of the Constitution in Maung Maung (1961: 257). 16 There were two communist party factions. For a history of the Communist Party of Burma, which fought against the government until 1989, see Linter (1990a). 13 14

40 Melissa Crouch directly elected but rather appointed by both houses of Parliament, and the Prime Minister was, in turn, appointed by the President as head of the Union. The presidential term was for five years, and was limited to two terms. The first Prime Minister of Burma was U Nu (1907–95), former president of the Rangoon University Student Union and Foreign Minister under Japanese occupation.17 The Constitution established a separate judiciary, and Dr Maung Maung (1962a: 227) boasted that the courts were ‘one of the then most independent and respected judiciaries in Asia’. The Constitution contained a chapter on fundamental rights, and a key part of the Supreme Court’s jurisdiction was its authority to hear applications for the constitutional writs and protect individuals from the arbitrary decisions of government (see Crouch, this volume). The courts and all judicial services were overseen by the Ministry of Judiciary Affairs, and the Constitution guaranteed independence for judges. In 1948 there were 11 judges on the Supreme Court and High Court, of which seven were qualified as barristers and four had degrees from England (Myint Zan 2004). After 1948 the judgments of the Supreme and High Courts of Burma, the two apex courts, were compiled in a series then called the Burma Law Reports. In terms of the structure of Parliament, there was one representative for every 100,000 people in the Chamber of Deputies and it held financial control. In the Chamber of Nationalities, there were 125 seats allocated on the basis of ethnicity, including 25 Shan, eight Chin, three Kayah, 12 Kachin and 15 Karen. The other 62 representatives were Burmans. This design was intended to give a voice and symbolic recognition to some minority ethnic groups. Both houses of Parliament had the power to propose bills but ultimately the Union government was responsible to the Chamber of Deputies (arts 98–99; 115). The 1947 Constitution also provided for the creation of special areas for five ethnic groups: the Federated Shan States, Kachin State, Karen State (also known as Kaw-thu-lay), Karenni State and the Special Division of the Chins. Two groups, the Shan and Karenni, could opt to leave the Union after 10 years if this was approved by a plebiscite. After 1948, however, armed insurgencies began in Karenni State (1948), Karen State (1948), Shan State (1959), and, later, Kachin State (1961) (see generally Smith 1991). These concessions to ethnic nationalities were later abolished through constitutional amendments. The first took place in 1951 (replacing art 180 with art 181), which provided for the governance of Karen State18 and stated that the right to secession no longer applied. The Second Schedule was also amended to reduce Karen representation in the Chamber of Nationalities from 24 to 16, while Burman seats increased from 53 to 62. A similar process annulling the rights of Shan chiefs and their representation in the Chamber of Nationalities took place in the second amendment.19 The third constitutional amendment was the most controversial. It was passed just after the end of the caretaker government in 1958–59, when U Nu permitted the military to govern because of the intense political divisions at the time and the inability of the government to establish stability across the county.20 After the elections of February 1960 U Nu, leader of a faction of the AFPFL, renamed the Union Party, won on the basis 17 U Nu served three terms: 1948–56, 1957–58, and then 4 April 1960 to 1 March 1962. See generally Butwell (1963) and Tinker (1957). 18 The Constitution Amendment Act 1951, 7 November 1951. 19 The Constitution Amendment Act 1959 (second) repealed s 154(2). 20 This period has been labelled a ‘dress rehearsal’ for the later take-over by the Revolutionary Council: Charney 2009: 131.

The Layers of Legal Development in Myanmar 41 of a promise to promote Buddhism as the state religion. On 26 August 1961 the Constitution was amended to enshrine Buddhism as the state religion.21 A range of provisions were inserted to compel the government to allocate 50 per cent of its annual expenditure to religious affairs, promote the teachings of Buddhism, and support the restoration of historic pagodas and hospitals for monks.22 Around the same time, the State Religion Promotion Act 1961 was passed, which required all schools to teach the Buddhist scriptures to Buddhist students and prison inmates (see Smith 1965). These amendments were a source of intense concern for ethnic nationalities, many of whom had converted to Christianity during the colonial period. U Nu had a habit of using local sayings, such as his caution about the mango tree, implying that there was a long way to go before independence bore fruit. The metaphor can also be seen as an apt description of constitutionalism in the first decades after independence. In sum, if the seed of constitutionalism was planted in the 1947 Constitution, it had certainly not borne fruit by the 1960s. Among other developments, deep political factionalism, including the split within the AFPFL itself, widespread conflict across the country and attempts to introduce a state religion, had generated a political atmosphere of uncertainty and paved the way for military takeover. THE THIN LEGALIST VENEER OF THE SOCIALIST REGIME

Any last vestiges of parliamentary democracy came to an end on 2 March 1962, when the military arrested members of the government and all other individuals perceived as a threat to its takeover. On 3 March General Ne Win officially declared that the Revolutionary Council, of which he was chairperson, had taken over governance of the country.23 One month later ‘The Burmese Way to Socialism’ was introduced.24 Prime Minister U Nu was arrested and detained for four years. From the beginning of the Ne Win regime, law was seen a means to reinforce control and prop up a thin socialist ideology. In July 1962 Ne Win formed the Burma Socialist Programme Party (BSPP) and by 1964 it was the only party permitted. Its membership remained small until the 1970s when Ne Win sought to make the BSPP a mass-based organisation. He also drove an intense effort at nationalisation and the state ultimately came to control all economic activity of any significance (Steinberg 1982). To consolidate his rule, Ne Win established a Revolutionary Council consisting of 17 members, and further established a hierarchy of councils that permeated down to the village level, all overseen by military officers. Although the Revolutionary Council declared that all laws remain in force,25 this did not ensure a consistent legal basis for decisions made. The members of the new political structure that was put in place – from the Council of State, the Council of Ministers (cabinet), the Council of People’s Justices (judiciary), the Council of People’s Attorneys, and the Council of People’s Inspectors (Auditor General) – were all members of the nominal unicameral Parliament, known as the Pyithu Hluttaw 21 The Constitution (Third Amendment) Act 1961, s 21; and The State Religion Promotion Act 1961 in Smith (1965: 329–35). 22 The new provisions inserted were ss 21A–D; 43A and B. 23 Declaration No 22 of the State Revolutionary Council, 12 March 1962. 24 For the articulation of the ‘Burmese’ variant of socialism promoted by the Revolutionary Council, see Revolutionary Council (1962); BSPP (1964). 25 Declaration No 14 of the State Revolutionary Council, 7 March 1962.

42 Melissa Crouch (Myint Zan 2000: 38). The socialist era also had a profound impact on the legal profession, and the Bar Council was no longer considered independent (Huxley 1998). It also had an effect on tertiary education institutions, which were sporadically closed due to student protests. When universities opened again their curriculum was tightly controlled. Subjects such as company law were, for example, no longer taught as part of a law degree during the socialist era (Myint Zan 2008; see Tun Zaw Mra, this volume). Beginning in 1962 a new Chief Court was established as the apex of the judicial system, and it lasted until 1974. The coup had spelt the end of the judicial system as it was then known, and an independent judiciary. The Chief Justice of the Supreme Court at the time of the coup, U Myint Thein, was placed under arrest for six years (Myint Zan 1995). Most courts were, however, still staffed by professional judges, at least until 1972. The role of the general courts and their independence was also undercut by the creation of Special Criminal Courts (see Cheesman 2012a). In 1972 judicial reform preceded constitutional reform. On 7 August 1972 the ‘People’s Judicial System’ was introduced under the guidance of Dr Maung Maung, who had by this time become a member of the Revolutionary Council (Myint Zan 2000). Professional judges were removed from their posts and replaced by members of the BSPP, although most had no legal qualifications (Myint Zan 2000: 36). At first, the People’s Courts only handled criminal cases but civil cases began to be heard from June 1973. Some professional judges were ‘reappointed’ as ‘Court Advisors’ but their advice to the People’s judges was not binding. In addition to the changes to the judiciary, constitutional reforms were introduced along socialist lines. On 25 September 1971, the Central Committee of the BSPP announced the formation of a 97 member Commission to draft the State Constitution of the Union of Burma. Selected by the BSPP, its members consisted of class representatives, Union nationalities representatives, politically-experienced persons and legal experts (Moscotti 1977: 7). The time line for the drafting process developed in three stages. Just two months were allocated for the first draft, after which time it was said to have been circulated. A second draft followed one year later, again said to have been given to the people for comment. Finally a third draft was presented to the BSPP Central Committee in August 1973. The BSPP sent out teams to obtain the opinion of the people and claimed to have consulted over 105,000 workers.26 While the government invited submissions, there are reports of some individuals who offered them being arrested because, for example, they recommended a federalist system (Fink 2009: 31). From 15 to 31 December 1973 a referendum was held to adopt the 1974 Constitution, and it was subsequently introduced on 3 January 1974 (Moscotti 1977). The 1974 Constitution proclaimed Burma as the ‘Socialist Republic of the Union of Burma’. One effect of the Constitution was that the Revolutionary Council was reformed and became a civilian, rather than explicitly military, body (Charney 2009: 107). It aspired to build a socialist economy and reified nationalisation as the means of production (s 19), confirming the process of nationalisation of various industries that had taken place since the coup (Turnell 2009: 223–24). A unicameral legislative body, the Pyithu Hluttaw (s 45), held executive and judicial power but could delegate this authority to the Central and Local Organs of State Power (s 13). Members of the Pyithu Hluttaw were in theory directly elected, and held four-year terms but during the 1974 elections there was 26

The Guardian, vol 1(1) Jan, Feb 1974, reprinted in Moscotti (1977: 10).

The Layers of Legal Development in Myanmar 43 no evidence that any of the seats in the People’s Assembly were contested (Moscotti 1977: 157). Further symbolic (though not necessarily substantive) provision was made for ethnic nationalities through constitutional recognition of seven ethnic-based states, adding Karen, Mon and Arakan State to the four already recognised in the 1947 Constitution (s 31). This formalised the appointment of the Mon and Arakan Affairs Ministers back in March 1961 (Kyaw Yin 1968: 299). These seven states were on the same administrative level as the seven Burman-majority divisions. Yet this territorial division masked the deeper and more complex ethnic diversity that lay beneath it. The governance of the country was divided into several levels of administration that began at the village-tract level and stretched to towns, townships, and states/divisions (s 29). After the 1974 Constitution came into force, Ne Win became the first President of the Socialist Republic of the Union of Burma, and was ‘re-elected’ by the Pyithu Hluttaw to a second term in January 1978. He retired from the presidency in November 1981, although he retained his position as chairperson of the BSPP until 23 July 1988. Regardless of the change in titles, Ne Win remained in control as dictator from 1962 until 1988. The 1974 Constitution also signalled the overt rejection of the separation of powers. Judicial independence was non-existent and, until 1988, judges were even considered to be members of the legislature (Myint Zan 2000: 42, 51). No selection criteria were specified for the members of the Council of People’s Justices, and the term of office was the same as that for members of the Pyithu Hluttaw (s 97). The qualifications of the members therefore varied. For example, the first chair of the Council of People’s Justice, U Aung Pe (1974–81), was a former colonel, while his replacement, U Moung Moung Kyaw Win (1981–83), was a former brigadier and barrister. It was only the third chair, U Tin Aung Hein (1983–88), who actually had a law degree. Clear boundaries were set around the role of the Council of People’s Justices: it was responsible to the Pyithu Hluttaw and was required to ‘safeguard the Socialist system’ and ‘administer justice independently’ (s 104). It was also required to use Burmese language (s 102), rejecting the previous use of English as the primary language of the courts, although this had been in decline since the 1960s.27 Further, the judiciary did not have the power to interpret the law and the Constitution. This power was, instead, deliberately given to the Pyithu Hluttaw (ss 200(c); 201). In the 1980s the political crisis was precipitated by a socio-economic crisis of severe proportions. One indication of this is that Burma was officially listed as a ‘Least Developed Country’ by the United Nations (Turnell 2009: 256). A decision to demonetise certain currency took place in 1985 and then again in 1987. It was the latter demonetisation that affected people the most because three banknotes were declared worthless overnight without warning or compensation (Turnell 2009: 252–54). Given that most people held their money in cash rather than in a bank, it is estimated that 70 per cent of the currency was thereby rendered useless (Gutter and Sen 2001: 10). There was growing discontent with the BSPP government, particularly because of economic mismanagement. A brawl in a tea shop led to growing student unrest, later aggravated when several hundred protestors were killed at the White Bridge, near Inya Lake in Yangon, now known as the Red Bridge. This led to further student protests and growing demands for

27

Myint Zan (2008: 84) notes that the last English language judgment was written in 1969.

44 Melissa Crouch democracy, and was followed by a brutal military crackdown.28 In July 1988 Ne Win officially stepped down as party chairperson, although protests continued. Each year, 8 August 1988, known as 8888 or the ‘Four Eights’, is remembered as the anniversary of the democracy uprising in Burma. Ne Win’s successor, Sein Lwin, who had a notorious reputation for his role in repressing the 1962 student demonstrations, resigned soon after the 8888 uprising (Charney 2009: 151–53). Dr Maung Maung took his place, yet this was cause for further resentment and unrest due to his role in supporting the socialist regime, for undermining the court system, and for his complicity in abuses that took place under the 1974 Constitution he had helped draft. On 18 September 1988 the State Law and Order Restoration Council (SLORC) took over, leading to a period of overt military rule. A CONSTITUTIONAL VOID

SLORC swept aside any remnants of constitutionalism and projected a legal mirage based on a market-oriented economic system but instead entrenched wealth, land and resources in the pockets of military rulers and their families. SLORC abolished all state institutions29 yet, in theory, all laws that existed continued in operation.30 SLORC also set about appropriating for itself all the duties and power of the state with few responsibilities and no notion of accountability or transparency.31 It was also clear about its position on constitutionalism, declaring that ‘the military does not observe any constitution but is governing the nation under martial law’.32 When the military took over, all pretence at a socialist veneer was dropped. In 1988 a number of laws were introduced to systematically dismantle the socialist government, and effect transformation to a market-based economy. In 1988 SLORC changed the name of the country from the ‘Socialist Republic of the Union of Burma’ to the ‘Union of Myanmar’.33 While the international community (including the United Nations) generally acknowledged this change, some foreign governments (including the United States and the United Kingdom) did not. The BSPP was replaced by the National Unity Party as the military-backed political party and later, in September 1993, the United Solidarity and Development Association (USDA) was formed and, over time, became the main social vehicle for the army. After the 1988 crackdown many activists were jailed, while others fled to the border of Thailand and Burma. Some who stayed were brought before tribunals presided over by army officers, where the accused had no legal representation and no right of appeal (Venkateswaran 1996). The military convicted those it perceived to be its political opponents under a range of laws, such as the State Protection Act 1975. There were about 50 Linter (1990b) provides an authoritative version of the 8888 democracy moment. State Law and Order Restoration Council Declaration No 2/88, 18 September 1988. 30 State Law and Order Restoration Council Declaration No 6/88, 24 September 1988. 31 SLORC Order No 1/1988 cancelling Law for the Protection of National Solidarity No 4/1964, dated 19 September 1988. 32 SLORC Declaration No 1/1990, dated 27 July 1990. 33 See The Adaptation of Expressions Law No 8/1988. As mentioned in Crouch and Cheesman (this volume), laws have been published in both English and Burmese since 1988. Both versions of this order use the term ‘Myanma’. Nevertheless, SLORC appears to have reinforced this change from ‘Burma’ to ‘Myanma’ through The Adaption of Expressions Law No 15/1989, dated 18 June 1989. 28 29

The Layers of Legal Development in Myanmar 45 activists accused under this law over a period of several years (Gutter and Sen 2001: 39). They included Daw Aung San Suu Kyi, the daughter of General Aung San. After returning to Burma to care for her sick mother, she helped form the National League for Democracy (NLD). She was placed under house arrest for most of the period from 1988 until 2010. Nine days after taking power, SLORC appointed a new Supreme Court of five members. In November 1988, however, the military closed all courts, and the order was effective retrospectively from 1 June 1988.34 The courts were not reopened again until five months later, in March 1989. In the meantime, SLORC passed a new law on the judiciary that introduced a new hierarchy of courts.35 In terms of its case load, the Supreme Court claimed to have heard 577 cases in 1988, and by 1995 this number had risen to 4,662 (Tham 1996: 25–26).36 In the township courts, out of 303,868 cases heard in 1995, 97 per cent were criminal cases (Tham 1996: 25–26). Yet as Cheesman highlights, there were strategic reasons behind such statistics, such as the practice of ‘double-cropping’, where both the court at first instance and on appeal received a share of the bribes in a case (Cheesman 2012c: 240). There was also little security for the judges as they were not guaranteed tenure, and there were instances of judges being forced to step down. For example, in November 1998, five judges retired, although the official phrase used when a judge was fired was that they were ‘permitted to retire’ (Myint Zan 2004). The Supreme Court removed judges almost every year, not as a genuine attempt to eradicate corruption, but to punish those who had failed to keep up the facade that there were no such revenue-generating practices in the courts(Cheesman 2012c: 237). The Office of the Attorney General was re-established and, as today, the bulk of its workload consisted of prosecuting criminal trials. The Attorney General is the head of the Bar Council, and is also responsible for drafting legislation. In July 1991 SLORC announced the formation of a nine-member Law Scrutiny Central Board chaired by the Attorney General with powers to recommend the nullification, amendment or replacement of any law found not to be beneficial or in conformity with existing conditions. In fact, between 1988 and 1996, it passed two laws that had the effect of repealing 151 laws,37 which means that far more laws were repealed by SLORC than enacted. A new law on the Attorney General’s office was passed in 2001, with further amendments in 2003.38 The military coup also had a deleterious effect on the universities, including legal education. Law departments were required to teach a compulsory subject on military law and in 1988 the universities were closed due to student demonstrations. It was not until 1993 that the University of Yangon was reopened. While the universities were closed 13 times between 1962 and 1999, the longest period of closure was from the 1988 democracy uprising to 2000, when the universities were only open for the equivalent of three years (Selth 2012: 10). In 1993 new campuses far from city centres, such as Dagon University near Yangon, were opened. Aside from distance education courses offered by the Universities of Mandalay and Yangon, these new campuses were the only universities to The Special Limitations Law No 9/1988. Law No 2/88 on the Judiciary, 26 September 1988. 36 These statistics were provided to a group of Singapore law students in 1995 but cannot be verified further: see Tham 1996. 37 The Law for the Repeal of Laws No 1/92 repealed 137 laws. 38 See The Attorney General Law No 1/2001; The Law Amending the Attorney General Law 2001 No 3/2003. 34 35

46 Melissa Crouch offer law as an undergraduate degree, though the quality of their degrees was highly questionable (see generally Myint Zan 2008). After the 1990 elections, which the NLD won by a significant margin, the military refused to step down and instead went through the motions of drafting a new Constitution.39 None of the elected Members of Parliament were allowed to take office, and many were arrested and put in prison. The 2008 Constitution is therefore not a new initiative but was used by the military to delay acknowledgment of its loss at the national elections. It led to what is perhaps one of the most prolonged constitutional drafting processes in history. The National Convention was announced in July 1992, although it did not begin until January 1993. The original 702 members of the National Convention were chosen by SLORC, but only 99 of the 485 who successfully contested seats in the 1990 elections were allowed to participate (Diller 1993). The National Convention sessions took place in a controlled environment and sessions were held in private. Cracks emerged early, and on the second day 90 participants (from the NLD) expressed disagreement with the objectives predetermined by the military, primarily because they stated that the Constitution must grant the military representation in Parliament (Fink 2009: 75). The speeches delivered by delegates at the National Convention were censored, and delegates were forbidden from publicly discussing the proceedings of the National Convention.40 When the NLD attempted to start deliberations on a new Constitution, a new law was passed to criminalise any attempts at Constitution making outside the National Convention and to ban public discussion and criticism of the drafting process.41 The NLD ultimately boycotted the conference in November 1995, and from 1996 the National Convention was suspended indefinitely, prolonging the period of constitutional uncertainty. In November 1997 SLORC was rebranded the State Peace and Development Council (SPDC), and in the same year Myanmar joined the Association of Southeast Asian Nations (ASEAN). It was not until 2003, however, that major changes were made to the party leadership as part of a broader overhaul of leadership within the SPDC. In the 1990s the powerful intelligence chief, Lieutenant General Khin Nyunt, had negotiated ceasefires with many ethnic nationality armies. Due to a complex combination of factors and internal rivalries, he was removed from office and arrested on various charges (see Taylor 2008: 480– 84; Charney 2009: 181–82). General Than Shwe appointed General Soe Win as the new Prime Minister; upon his death three years later, General Thein Sein, the former chair of the National Convention, took his place. After an attempted attack on Daw Aung San Suu Kyi in 2003, there was growing international pressure to complete the prolonged Constitution drafting process. As part of this process, the SPDC launched its so-called ‘Roadmap to Democracy’ in 2004. This set out seven points, including that it would reconvene the National Convention, draft a new Constitution, hold a referendum and general elections, and form a civilian government. In 2004, the National Convention recommenced, led by General Thein Sein, and later declared complete in September 2007. Yet the referendum to approve the 39 The results of the 1990 elections were ‘invalidated automatically’ by s 91(b) of the Pyithu Hluttaw Electoral Law No 3/2010. For an analysis of the controversy surrounding the 1990 elections, see Tonkins (2007). 40 Ibid. 41 Law Protecting the Peaceful and Systematic Transfer of State Responsibility and Successful Performance of the Functions of the National Convention against Disturbances and Oppositions No 5/1996.

The Layers of Legal Development in Myanmar 47 Constitution was held in May 2008, just days after the devastating natural disaster caused by Cyclone Nargis. The referendum results were widely regarded as unfair and there were allegations of intimidation and manipulation of results (see Lidaeur and Saphy, this volume). The alleged referendum results – with an approval rate of 92.4 per cent – are printed on the first page of official copies of the Constitution, making a mockery of the contents of the 457 provisions it contains and, indeed, of the ideal of constitutionalism itself. A CIVILIAN-MILITARY GOVERNMENT BY THE (GREEN) BOOK

At the beginning of 2011, the 2008 Constitution came into force. In accordance with the seven-point road map to democracy, General Than Shwe formally disbanded the SPDC, and power was transferred to the new Union government headed by President Thein Sein, former Prime Minister of the SPDC and head of the National Convention. The changes that have occurred since then have taken most observers by surprise, including the release of many political prisoners; the overthrow of draconian media censorship; significant developments in terms of labour law reforms; and open public discussions on issues such as corruption. This is even more striking given that it was only in 2007 that demonstrations by monks led to a harsh government crackdown that became known as the ‘Saffron Revolution’ (see Fink 2009). During this period, there is one book which, while not all have read it or even have access to it, has frequently appeared in the media and public discussions: the government-issued green hardcopy of the 2008 Constitution.42 The Constitution establishes a bicameral legislature, known as the Pyidaungsu Hluttaw or Union Parliament, for the first time since the 1960s. The Upper House or National Assembly (Amyotha Hluttaw) consists of 224 seats, of which 168 are elected by each State or Region, and SelfAdministered Zones. The other 56 representatives are army officers appointed by the Commander-in-Chief. In the Lower House or People’s Assembly (Pyithu Hluttaw), there are a total of 440 seats, and of these 330 are elected on the basis of township and population, with 110 army officers appointed by the Commander-in-Chief. Within this new constitutional framework, I characterise this period as marked by four legal developments. First, there has been a renewal of law-making activity as the legislature has found its role and voice. Between 2010 and 2011 key laws were passed on the structure of the new political and legal system and its institutions, although most of this legislation replicates the detailed provisions set out in the Constitution. Since 2011 a range of laws have been introduced, while others remain ‘in process’, addressing issues of foreign investment, farmland, labour rights, micro-finance, the media, higher education and civil society organisations, as well as providing a legal basis for the establishment of institutions such as the National Human Rights Commission, and the revitalisation of the Central Bank. Several patterns have emerged in the drafting of these laws. The laws often provide for the formation of a committee to oversee certain processes, such as consideration of applications for investment permits. Yet these same committees, which usually consist of Members of Parliament and are therefore not independent of government, are 42 As this chapter went to press, a 2008 Constitution phone app was launched, allowing online access to the text of the Constitution.

48 Melissa Crouch given extremely broad discretion. This, combined with the general absence of a right to judicial review, means few executive decisions can be challenged in the courts. Most of the laws have been drafted in such broad terms that they have little effect until they are fleshed out in greater detail by government regulations, and even then implementation is dependent on the capacity of ministerial departments. In addition to introducing new laws, the Hluttaw has abolished a number of laws previously used to imprison political opponents, including Law No 5/1996, which had outlawed criticism of the National Convention, and Order No 2/1988, which was one of the laws used to prohibit public gatherings of more than four people. Part of the reason for these changes is that neither the military nor the President has the power to block legislation, and Members of Parliament do not always vote along party lines. Neither have the military Members of Parliament always voted in line with the President’s views. Even though the President has the power to send bills back to the Hluttaw with comments for revision, at times these have been rejected by the Hluttaw and the law has come into force regardless of the President’s wishes.43 The second main theme is the influential role of the President, although the relationship between the President and the military remains unclear. Despite the fact that the President cannot obstruct the law-making process, he has taken the initiative in promulgating other regulations that do not require the consent of the Hluttaw, in the form of presidential orders, notifications, announcements and so forth. Sometimes these decisions appear to have side-stepped the approval of the Hluttaw. This became an issue, for example, when a proposal for the budget of the National Human Rights Commission was rejected by the Hluttaw on the grounds that it had not initially been established by an Act of Parliament, but only by a presidential decree (Crouch 2013a). Further, the President has established numerous ad hoc commissions such as the Letpadaung Copper Mine Investigation Commission (to investigate whether that project should continue); and the Rakhine Investigation Commission (to inquire into the cause of violence against Muslims in Rakhine State). Yet the ‘independence’ of these commissions is questionable as most of the members are government officials, and the reports they have issued have been highly controversial. The President, however, sought to take a firm position against corruption, establishing a Commission to address corruption in government office,44 and supporting the passage of an Anti-Corruption Law.45 The implementation of these reforms will determine whether these anti-corruption efforts are more genuine than such attempts in the past. More controversially, the President has twice exercised his constitutional power to declare a state of emergency in relation to violence against Muslims in Rakhine State and Meiktila Township, yet this appears selective, as no such action has been taken in regard to the more serious conflict in Kachin State (Crouch 2013b). The role that the military has played in these areas thus remains opaque and out of reach of review by the courts. In this environment of excessive executive powers and the lingering presence of the military in Parliament, the courts remain stagnant, focused on their ‘side act’ of process-

43 One example is the Hluttaw’s refusal to agree with the comments of the President on the State/Region Hluttaw Law and the Anti-Corruption Law in August 2013: see Soe Than Lynn (2013). 44 Presidential Notification 9/2013, Organising Action Committee against Corruption, 8 January 2013. 45 Anti-Corruption Law No 23/2013.

The Layers of Legal Development in Myanmar 49 ing primarily criminal cases.46 The Supreme Court supervises all lower courts,47 including 14 High Courts (one in each Region or State); 67 District Courts;48 321 Township Courts; and other specialised courts, such as the Children’s Court. In the first one-and-a-half years of the transition since 2011, 84,791 civil cases were accepted, 60,753 cases decided and 24,038 cases pending. During the same period 46,450 criminal cases were accepted, 43,301 cases had been decided and 31,488 cases were still pending across the courts (U Htun Htun Oo 2013: 8). Yet it is precisely this focus on numbers and quantity, rather than substance and quality or ideals of justice, due process and fairness that exposes the weakness of the system. Further, the Constitution is designed in such a way as to ensure strong executive oversight over judicial affairs, to the detriment of judicial independence. The current appointment process for judges raises many concerns, primarily because it gives total power to the President to appoint the Chief Justice of the Supreme Court. The President then appoints other judges ‘in coordination’ with the Chief Justice, with no right for the Pyidaungsu Hluttaw to refuse a suitable candidate. The selection requirements for judges are ambiguous, and the grounds for removal are equally vague. Further, the actual exercise of parliamentary sovereignty has bordered on the extreme at times, such as when the Parliament directly summoned judges of the Supreme Court to appear in Parliament and answer questions on caseload and procedure (see Crouch, this volume). This is a reflection of the ambiguous interpretation of the separation of powers, which, although specified in the Constitution, exists only ‘to the extent possible’ (s 11). A third feature of legal developments in the reform era is the intensity of constitutional discussions and debates due to the establishment of the Constitutional Tribunal and the opening of space for potential constitutional amendment. While the military facilitated controlled, episodic discussions on constitutional reform from 1993 until 2008, this prolonged process was marked by inherent uncertainty and lack of genuine openness or public participation. One development that has emerged out of the 2008 Constitution is the establishment of the Constitutional Tribunal (Nardi 2011), which is the first court to have the power to review the constitutionality of laws since the Supreme Court was abolished in the 1960s. Until early 2014 the new Constitutional Tribunal had only heard a handful of cases. The first bench of the Tribunal sat from March 2011 until September 2012, and its first case concerned the constitutionality of a decision of the Ministry of Home Affairs to appoint sub-township administrative officers who could adjudicate smaller criminal cases. The applicant was the Supreme Court, and it successfully argued that the decision of the Ministry of Home Affairs had exceeded its proper role.49 In another case, the gap in the benefits given to Ministers of National Races Affairs in comparison to State and Region Ministers was challenged as unconstitutional by 23 members of the Amyotha Hluttaw. The Constitutional Tribunal again found in favour of the applicants.50

46 For the first sustained analysis of the politics of criminal prosecutions in Myanmar, see Cheesman (2012b). 47 Union of Myanmar Supreme Court Strategic Action Plan (2013). 48 At the same level as District Courts are the six Self-Administered Zone or Division Courts, though in 2013 there was no evidence that these had been established. 49 Constitutional Tribunal Submission No 1/2011, dated 14 July 2011. 50 Constitutional Tribunal Submission No 2/2011, dated 14 December 2011.

50 Melissa Crouch It was a case concerning ‘union-level organisations’ that ultimately determined the fate of the first bench. The President submitted an application challenging the power of ‘union-level organisations’ such as parliamentary committees, which are mentioned but left undefined in the Constitution, to amend legislation. The Constitutional Tribunal held that because ‘union-level organisations’ fulfilled an administrative function by submitting proposals to the Hluttaw, they could not also exercise the power to submit legislative amendments,51 therefore ruling in favour of the President. The tensions between the Hluttaw and the President, and by extension the Constitutional Tribunal, quickly mounted after this. The Hluttaw perceived this last decision to be a curtailment of its powers and interference by the President in the judiciary. On 15 August 2012 a petition was submitted by 301 members of the Pyithu Hluttaw requesting impeachment of the Constitutional Tribunal members (Aung Htoo 2012). Further efforts were made by the Amyotha Hluttaw to pass a formal bill of impeachment, which had the support of all the 163 elected Members of Parliament – that is, all military representatives voted against the proposal and implicitly in support of the President (Win Ko Ko Latt 2012). On 6 September 2012 the members of the Constitutional Tribunal were reported to have stepped down of their own accord.52 This necessitated the appointment of an entirely new bench in February 2013,53 although as at January 2014 it had not heard any cases. The other major constitutional law issue that has arisen is the possibility of constitutional amendment. In February 2013 President Thein Sein announced that a Constitutional Review Committee would be established, which was then approved by the Union Parliament in July. According to its terms of reference, the committee is responsible for proposing constitutional amendments to promote peace, national unity and democratic reforms in Myanmar. The constitutional amendment process is now key to the 2015 elections, and will, in part, determine whether they are free and fair. A wide range of issues are under discussion, such as the requirements for nomination as a presidential candidate by the presidential electoral college, which could exclude Aung San Suu Kyi. The Constitutional Review Committee was due to submit its report by 31 December but this deadline was later extended to 31 January on the pretence that more time was needed because of the Southeast Asian Games. This raised old fears that the process may be little more than a facade. In terms of participation, the committee consisted of 109 members, with proportional representation of Members of Parliament. Most were from the USDP, the military, or ethnic-based parties, and were elected in the 2010 election, which was not considered to be free and fair. The committee also included seven NLD members elected in the 2012 by-election, which was generally free and fair. The committee issued an official public call for submissions in October 2013. This generated a flurry of constitutional campaigns and conversations across the country as political parties, social organisations, ethnic groups and religious groups held discussions and then made submissions to the Committee.

Constitutional Tribunal Submission No 1/2012, dated 28 March 2012. President’s Office Order No 29/2012, Resignations of Chairman and members of Constitutional Tribunal of the Union allowed, 6 September 2012. 53 President’s Office Order No 12/2013 on the Appointment of Chairman [sic] and members of Constitutional Tribunal of the Union, 25 February 2013. 51 52

The Layers of Legal Development in Myanmar 51 The Committee’s final submission at the end of January appears to have confirmed the fears of sceptics.54 It simply collated data on the number of provisions that were suggested for amendment and those that were not. The Committee failed to come to any conclusions on the substance of the Constitution’s text – that is, which provisions should be amended and how. The most controversial aspect of the report was its reference to a petition signed by 106,102 people. This petition recommended that several aspects of the Constitution should not be changed, including the presidential requirements, the role of the military in Parliament, and the constitutional amendment process. Yet this alleged petition has been heavily criticised and suspicions have been raised about its validity. A separate committee of 30 Members of Parliament has now been established to ‘implement’ this report, yet deep scepticism remains about any potential for constitutional reform. The sense of futility concerning this process is also derived from the fact that any proposal for constitutional amendment requires more than 75 per cent approval of Parliament and, depending on the provisions, more than 50 per cent of all eligible voters at a national referendum. This is a huge hurdle, and requires the full agreement of the military, who occupy 25 per cent of the seats in Parliament. The final theme in legal development to date is that power remains centralised in the national executive. This has effectively meant the dominance of the national government over the regions and states, and little evidence of law-making activities or executive activity at the local level as at late 2013 (Nixon et al 2013). Under the 2008 Constitution, the President appoints the Chief Ministers of the States and Regions, as well as the Chief Justice of the High Courts of the States and Regions in consultation with the Chief Justice of the Supreme Court. The Constitution maintains the historical division of seven states and seven regions but also introduces a new system of special political representation for national races at the state level, and the creation of six ‘substates’, known as the Self-Administered Zones. The election of Ministers of National Races Affairs depends on the percentage of a population in an area (s 15). In 1994 the list of Ministers of National Races Affairs was first drawn up based on ethnic groups that could meet the population requirement, and in 2011 the list of Ministers subsequently appointed was almost exactly the same (Crouch, forthcoming). In effect, this system also allows for Burman representatives in the ethnic-based states. The status of Self-Administered Zones or Divisions was granted to ethnic groups based on two criteria: the group must form the majority of a population in at least two townships, and the townships must be adjacent to each other. At the National Convention in the 1990s, there were 15 groups that applied for Self-Administered status. In 1995 it was announced that only six out of 15 groups were successful, as the two criteria were strictly interpreted and many of the groups that applied did not meet the requirements. Under the Constitution, the Zones have legislative, executive and judicial power but there is little evidence these are in operation yet. Instead, the creation of this new category of central-local relations has played a legitimising function for the government, establishing a legal mirage of the distribution of power between the central and regional governments (Crouch, forthcoming). The reality is, however, that local power-holders and political leaders – whether at the local, district or state and region level – have until now adopted a pragmatic ‘look to Naypyidaw’ approach, in 54

Committee’s report on file with the author.

52 Melissa Crouch which the approval of the President is crucial, but permission at other levels remains secondary.

CONCLUSION

I opened this chapter by suggesting that in order to appreciate how people in Myanmar understand the legal system, its texts and its institutions, and, by implication, how they live within or beyond the law, we need to consider the multiple layers of their country’s legal history. There are several key features that mark this legal history and provide a backdrop to the way in which people in Myanmar understand the legal system today. First, legal authority has often been wielded by force. This was true under the kings as they sought to consolidate and expand their territory; under the prolonged war with the British and the resulting period of colonialism, during which suppression by violence was a key part of colonial tactics; under parliamentary democracy, which witnessed multiple struggles within and between ethnic nationalities, the Communist Party and the military; and, finally, under decades of military rule. While the authority of all political regimes is, to some extent, based on a monopoly on the use of force, the challenge for the quasi-civilian government is to generate a genuine sense of legitimacy in the exercise of its power that extends far beyond the pure exertion of violence. A key aspect of this is the removal of the military from Parliament, and the subordination of the military to the executive branch, yet there is every indication that these steps will not be taken prior to the 2015 elections. Further, a diverse range of institutional structures have been introduced and then later discarded and replaced. These include the centralised rule of the kings; the colonial institutions designed by the British; the bicameral Parliament established in the immediate post-independence period; the unicameral socialist state imposed under Ne Win; the rule by military junta that followed; and, finally, the revived national-level bicameral Parliament that exists today. In one respect, this means that all institutions – save for the military – have relatively shallow roots, generate little respect, and will require significant consolidation. The situation at the national level is also in contrast to the states and regions, where there has never been any form of bicameral Parliament, and which has largely been dominated by the central powers. This analysis, of course, ignores ethnic nationalities areas that have at different times been under the control of armed ethnic groups rather than the central military government, and where national law has had little or no force. Finally, it was only for a brief period of ten years after 1948 that the courts were considered to be independent. The disempowerment of the judiciary since the 1960s and its blatant co-optation by the military will prove a significant historical legacy to overcome. The transition era has, unfortunately, brought little reform to the courts to date, and the public remain deeply suspicious of both the courts and the wider legal profession. How will Myanmar’s legal system develop from here? The only point of certainty in the current reform process is its dynamic and unpredictable nature. Much rests on the constitutional amendment process, and the outcome of the 2015 elections. Regardless of whether, and how, changes to the Constitution are made, or whether the Constitution is later completely remade, I have sought to demonstrate that these developments are not taking place in a legal and political vacuum. What we are seeing is not a ‘big bang’ in

The Layers of Legal Development in Myanmar 53 terms of law reform after the 2008 Constitution came into force but rather a slow and complex law reform process that builds on successive, and at times contradictory, layers of development. We must start with this context in order to begin to better understand what many refer to today as Myanmar’s common law legal system.

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54 Melissa Crouch Furnivall, John S (1960) The Governance of Modern Burma (New York, NY, Institute of Pacific Relations). —— (1991) The Fashioning of Leviathan: The Beginnings of British Rule in Burma (Canberra, ANU) [republished from The Journal of Burma Research Society, 29(1), April 1939, 3–137]. Ginsburg, Tom and Moustafa, Tamir (eds) (2008) Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge, Cambridge University Press). Ginsburg, Tom and Simpser, Alberto (eds) (2014) Constitutions in Authoritarian Regimes (Cambridge, Cambridge University Press). Gutter, P and Sen, BK (2001) Burma’s State Protection Law: An Analysis of the Broadest Law in the World (Thailand, Burma Lawyers’ Council). Huxley, Andrew (1988–89) ‘Burma: It works, but is it Law?’ 27 Journal of Family Law 23. —— (1994) ‘The Reception of Buddhist Law in Southeast Asia 200 BCE-1860 CE’ in Michel Doucet and Jacques Vanderlinden (eds), La Reception des Systemes Juridiques: Implantation et Destin (Bruylant, Université Libre de Bruxelles, Universite De Moncton). —— (1997) ‘The Importance of the Dhammathats in Burmese Law and Culture’ 1 Journal of Burma Studies 1–17. —— (1998) ‘The Last Fifty Years of Burmese Law: E Maung and Maung Maung’ LAWASIA 9. —— (2001), ‘Positivists and Buddhists: The Rise and Fall of Anglo-Burmese Ecclesiastical Law’ 143 Law and Social Inquiry 113–43. —— (2004) ‘Case Note: California Refuses to Apply Myanmar Law’ 6(1) Asian Law 88. —— (2008) ‘Is Burmese Law Burmese? John Jardine, Em Forchhammer and Legal Orientalism’ 10(2) Australian Journal of Asian Law 104. Kyaw Yin (1968) The Foundations of Public Administration in Burma: A Study in Social and Historical Perspectives (New York, NY, University Microfilms). Kyin Swi (1965) ‘The Judicial System of the Kingdom of Burma’ (University of London, SOAS, PhD thesis). Lammerts, D Christian (2010) ‘Buddhism and Written Law: Dhammasattha Manuscripts and Texts in Premodern Burma’ (Cornell University, PhD thesis). —— (2013) ‘Narratives of Buddhist Legislation: Textual Authority and Legal Heterodoxy in 17th19th Century Burma’ 44(1) Journal of Southeast Asian Studies 118–44. Lee, Orlan (1978) Legal and Moral Systems in Asian Customary Law: The Legacy of the Buddhist Social Ethnic and Buddhist Law (Hong Kong/San Francisco, Chinese Materials Centre). Lev, Dan S (2000) ‘Judicial Institutions and Legal Culture’ in Legal Evolution and Political Authority in Indonesia (The Hague, Kluwer Law International). Linter, Bertil (1990a) The Rise and Fall of the Communist Party of Burma (Southeast Asia Program, Cornell University). —— (1990b) Outrage: Burma’s Struggle for Democracy (Bangkok, White Lotus). Maung Maung (1961) Burma’s Constitution (The Hague, Martinus Nijhoff). —— (1962a) ‘Lawyers and Legal Education in Burma’ 11(1) International and Comparative Law Quarterly 285. —— (1962b) A Trial in Burma: The Assassination of Aung San (The Hague, Martinus Nijhoff). —— (1963) Law and Custom in Burma and the Burmese Family (The Hague, Martinus Nijhoff). Moscotti, Albert D (1977) Burma’s Constitution and the Elections of 1974, Research Notes and Discussion No 5 (Singapore, ISEAS). Myint Zan (1995) ‘U Myint Thein MA, LLB, LLD’ 69 Australian Law Journal 225. —— (2000) ‘Judicial Independence in Burma: Constitutional History, Actual Practice and Future Prospects’ 4 Southern Cross University Law Review 17. —— (2004) ‘A Comparison of the First and Fiftieth Year of Independent Burma’s Law Reports’ 35(2) Victoria University of Wellington Law Review 385. —— (2008) ‘Legal Education in Burma since the Mid-1960s’ 12 Journal of Burma Studies 63.

The Layers of Legal Development in Myanmar 55 Nardi, Dominic (2011) ‘Discipline-Flourishing Constitutional Review: A Legal and Political Analysis of Myanmar’s New Constitutional Tribunal’ 12(1) Australian Journal of Asian Law 1. Nixon et al (2013) State and Region Governments in Myanmar (The Asia Foundation, MDRICESD). Revolutionary Council (1962) The Burmese Way to Socialism (Rangoon, n.p.). Selth, Andrew (2012) Burma Watching: A Retrospective. Regional Outlook Paper No 39 (Nathan, Queensland, Griffith Asia Institute). Smith, Donald Eugene (1965) Religion and Politics in Burma (Princeton, Princeton University Press). Smith, Martin (1991) Burma: Insurgency and the Politics of Ethnicity (London and New Jersey, Zed Books). Soe Than Lynn (2013) ‘Committee Slams President over Criticism’ Myanmar Times, 25 August, www. mmtimes.com/index.php/national-news/7964-committee-slams-president-over-criticism.html. Steinberg, David I (1982) Burma: A Socialist Nation of Southeast Asia (Boulder, CO, Westview Press). —— (2010) Burma/Myanmar: What Everyone Needs to Know (Oxford, Oxford University Press). Taylor, Robert H (ed) (2008) Dr. Maung Maung: Gentleman, Scholar, Patriot (Singapore, ISEAS). Taylor Robert H (2008) The State in Myanmar, 2nd edn (London, Hurst Publishers). Tham, Kevin (ed) (1996) ‘Law Students International Relations Committee Study Visit to Myanmar: A Consolidated Report’ (Singapore, self-published report). Thant Myint U (2004) The Making of Modern Burma, first published 2001 (Cambridge, Cambridge University Press). Tinker, Hugh (1957) ‘Nu, the Serene Statesman’ 30(2) Pacific Affairs 120. —— (1984) Burma: The Struggle for Independence 1944–1948, vol II (London, HMSO). Tonkins, Derek (2007) ‘The 1990 Elections in Myanmar: Broken Promises or a Failure of Communication?’ 29(1) Contemporary Southeast Asia 33–54. Turnell, Sean (2009) Fiery Dragons: Banks, Moneylenders and Microfinance in Burma (Denmark, NIAS Press). U Htun Htun Oo (2013) ‘Speech by Chief Justice U Htun Htun Oo at Keio University, Japan, on “Current Developments in the Myanmar Legal System”’ 3(2) Supreme Court Judicial Journal. U Maung Maung (1989) Burmese Nationalist Movements 1940–1948 (Arran, Scotland, Kiscadale Publications). Venkateswaran, KS (1996) Burma Beyond the Law, Article 19, www.article19.org/data/files/pdfs/ publications/burma-beyond-law.pdf. Win Ko Ko Latt (2012) ‘MPs Pass Impeachment Motion Despite Warnings’ The Myanmar Times, 3–9 September, www.mmtimes.com/2012/news/642/news08.html. Yi Yi (1962) ‘The Judicial System of King Mindon’ 45(1) (June) Journal of the Burma Research Society 7.

COURT DECISIONS Constitutional Tribunal Submission No 1/2011, dated 14 July 2011 Constitutional Tribunal Submission No 2/2011, dated 14 December 2011 Constitutional Tribunal Submission No 1/2012, dated 28 March 2012 LAWS Act to Enact a Scheme for the Government of Burma Act No 1 of 1305 BE [Constitution under Japanese occupation] The Adaption of Expressions Law No 15/1989 (State Law and Order Restoration Council Law) The Adaptation of Expressions Law No 8/1988 (State Law and Order Restoration Council Law)

56 Melissa Crouch Anti-Corruption Law No 23/2013 (Pyidaungsu Hluttaw Law) The Attorney General Law No 1/2001 (State Law and Order Restoration Council Law) Bar Council Act 1926 (The Burma Code, vol XI) Burma Indemnity and Validating Act of 1945 Burma Laws Act 1898 (The Burma Code, vol I) The Constitution Amendment Act 1951 The Constitution of the Republic of the Union of Myanmar 2008 The Constitution of the Socialist Republic of the Union of Myanmar 1974 The Constitution (Third Amendment) Act 1961 The Constitution of the Union of Burma 1947 Declaration No 14 of the State Revolutionary Council, 7 March 1962 Declaration No 22 of the State Revolutionary Council, 12 March 1962 Declaration No 28 of the State Revolutionary Council, 30 March 1962 Declaration No 2/88, 18 September 1988 (State Law and Order Restoration Council Law) Declaration No 6/88, 24 September 1988 (State Law and Order Restoration Council Law) Declaration No 1/1990, 27 July 1990 (State Law and Order Restoration Council Law) Government of Burma Act 1935 Law No 2/1988 on the Judiciary, 26 September 1988 (State Law and Order Restoration Council Law) Law No 5/1996 Law for Protection of Stable, Peaceful and Systematical Transfer of State Responsibility and the Successful Implementation of National Convention Tasks, Free from Disruption and Opposition The Law Amending the Attorney General Law 2001 No 3/2003 (State Law and Order Restoration Council Law) The Law Amending the Bar Council Act No 22/1989 (State Law and Order Restoration Council Law) The Law for the Repeal of Laws No 1/1992 (State Law and Order Restoration Council Law) Order No 1/88 cancelling Law for the Protection of National Solidarity 4/1964, dated 19 September 1988 (State Law and Order Restoration Council Law) Order No 2/88 revoking Law for the Protection of the Myanmar Socialist Programme Party Leading the State 17/1974 (State Law and Order Restoration Council Law) Order No 3/88 revoking Law Providing Monetary Aid to the Myanmar Socialist Programme Party No 2/1974 (State Law and Order Restoration Council Law) Presidential Notification No 9/2013, Organising Action Committee against Corruption, 8 January 2013 President’s Office Order No 12/2013, Appointment of Chairman and members of Constitutional Tribunal of the Union 25 February 2013 The Special Limitations Law No 9/1988 (State Law and Order Restoration Council Law) The State Religion Promotion Act 1961

4 Is Burmese Law Buddhist? Transition and Tradition ANDREW HUXLEY

A

RE THE BURMESE people Buddhist? Yes, most of them. Is Burmese Law Buddhist? No, most of it is based on secular models, whether those provided by the British Empire during the nineteenth century, or those provided by the Eastern bloc states in the 1970s, or those provided by the globalisation of the 1990s. It was not always the case. My first aim in this chapter is to show that the Burmese legal tradition used to be profoundly Buddhist, which is to say that it treated Pali, the language of the scriptures, as its classical language. Until 1885 most cabinet ministers had a good classical education. They interpreted modern times through classical terminology whenever they wrote about jurisprudence, or the political economy, or the science of government. My second aim is to explain how this ceased to be the case. Between 1882 and 1885 British Burma eliminated the shene, the Burmese legal profession, thereby divorcing the texts of Burmese law from their interpretative community. Charles Crosthwaite and John Jardine did this in the name of modernity. They claimed that the Burmese law texts and Burmese lawyers were unfit for purpose: the British technology of government simply worked better. Not to adopt modern law was like not using steam boats, railway trains, and the telegraph. In 1972 post-colonial Burma eliminated the British-trained judiciary, along with the wigs, gowns, and Geneva bands that had adorned them. Ne Win and Maung Maung did so partly to promote socialism, and partly to restore the pre-colonial past. Eighteen months after Maung Maung’s removal as President of Burma in 1988, the Marriott Hotel Hong Kong hosted a presentation entitled Exploring Commercial Opportunities in Burma. Two years later, Burma’s ruling junta announced that it had ‘suspended the one-party socialist system and socialist economy to pursue a multiparty democratic system with a market-oriented economy’ (Pigou 2001: 20). I call these events the 1885 transition from tradition, the 1972 transition from imperial models, and the 1990 transition from socialism. Such changes often occur alongside a new technology. In 1885 the printing press helped the British disseminate their new approach to codified law. In 1972 the helicopter enabled the Burmese army to gain control of the mountain people. In 1990 the personal computer enabled capitalism to go global, and to penetrate even places like Burma, where there had long been pockets of resistance. There is more to transition than mere constitution-drafting. I shall point to some of the other elements that go into a transition. I shall do this by highlighting three tropes

60 Andrew Huxley from the Vinaya literature written in Pali that are often quoted in the Burmese law texts. That the three Vinaya tropes are all taken from the discussion of theft reflects the genesis of this chapter in a paper I gave to a conference on Buddhist theft law held in Bellagio in 2006. There are three important genres of Burmese law text – the dhammathat, rajathat and pyattôn. Two-thirds of the typical dhammathat is rules, organised in lists according to topics. One-fifth of the typical dhammathat is law reports. The remaining material can include autobiographical elements, ethical sermons and legal-historical book lists. Most dhammathats were written in Burmese mixed with Pali. In recent years some MonPali and Shan-Pali dhammathats have appeared in print for the first time. Only the Arakanese-Pali dhammathats remain unstudied, untranslated and undiscussed. The typical rajathat claims to be the work of a king. It may be a sermon, a set of rules, or a discussion of constitutional points. Maharajathat, written in the 1630s, is so elaborate and encompassing a text that it resembles one of the more ambitious dhammathats. Some pyattôn texts, that is, law reports, contain a detailed account of one case, others contain a summary of several cases. Lord Kyaw Thu’s pyattôn, written in the 1580s, is a highly sophisticated example of the former, with a rajathat mixed in. These Burmese texts are what I will examine. What I am looking for is influence from the Pali scriptures, the manuscript tradition for which has been relatively fixed since the fifth century CE. The Vinaya, the first of the three divisions of the scriptures, describes how life should be lived within the monastery. The first division of the Vinaya, the Suttavibhanga, is a disciplinary code for individual monks. The second division, the Khandaka, informs the inhabitants of a monastery how to act collectively. I concentrate on the second of the 227 offences analysed in the Suttavibhanga, which is the offence of theft. The Vinaya devotes 28 pages to theft (Table 4.1), offering the history of how the Buddha came to enunciate his rule on theft, analysis of what actions and mental states should count as theft, discussion of the lesser offences within the theft family, a set of law reports, and a dictionary of technical terms. Table 4.1: The Suttavibhanga’s 28 Pages on Theft Law V iii 40–5 45 46 47–52 53 53–55 55–67

Dhaniya, the case of the first offender The law report concerning the 6 monks The word list of technical terms 30 examples of how the lesser offences relate to theft proper Incitement to commit theft Lists of 5 rules and 6 rules 49 law reports on theft

The Buddhist tradition believes that this chapter on theft solidified within a few decades of the Buddha’s life – by approximately 450 BCE. European scholarship believes it has undergone several centuries of textual accretion, so that the text became fixed around 200 CE. The Great Vinaya Commentary was compiled in Sri Lanka around 450 CE. It devotes 107 of its 550 pages to the topic of theft (Table 4.2). Mostly the Commentator proceeds by glossing individual sentences taken from the Vinaya’s 28 pages on theft but on 11 occasions he develops his own analysis in his own words. These freestyle passages allow us a glimpse of what Buddhist legal reasoning had developed into, eight centuries after the Buddha.

Is Burmese Law Buddhist? 61 Table 4.2: Fifth Century CE Thinking on Theft in the Great Vinaya Commentary 1

Decisions of matters unspoken of in the Scriptures

Sp 290–4

2

The typology of thefts (6 and 25 types of theft)

Sp 302–5

3

The 4 Great Authorities (variables of value)

Sp 305–8

4

New ways to analyse the lesser offences

Sp 310–21

5

The lotus and fish code

Sp 330

6

The irrigation code

Sp 340

7

Stealing things one after another

Sp 350

8

Possession distinguished from ownership

Sp 351

9

The innocent thief

Sp 364

10

Problems on conspiracy to steal

Sp 367

11

Defences based on ownership

Sp 373

Of the three Vinaya themes chosen by the Burmese for further development, one comes from the Vinaya’s 49 law reports, and the other two from the Great Commentary. This suggests that Buddhist Law has, for 2,400 years at least, travelled in the same direction. The Burmese, writing two millennia after the Buddha, approved of Sri Lankan legal reasoning written one millennium after the Buddha. The first of the three themes I shall examine is the Great Commentary’s typology of 25 kinds of theft. AN ANALYSIS OF THEFT: USEFUL LISTS AND ORNAMENTAL LISTS

Halfway through its treatment of theft, and immediately after its discussion of incitement to commit theft, the Vinaya offers a list of five checkpoints for theft: Here are five checkpoints for ‘taking what has not been given to you’, the offence which leads to defeat: [1] The item must belong to another [2] The item must be known to belong to another [3] The item taken must be non-trivial [4] The item must be worth at least 5 masakas [5] There must be an intent to steal the item. (Vin iii 53)

Who wrote this? It strikes me as not the Buddha’s work. It reads like the kind of analysis that developed out of debate between experts. Maybe the author lived during the Buddha’s lifetime, maybe a century or two later. Whenever he wrote, he succeeded in boiling down the then-available literature on theft (which I take to have been V iii 40–52) into a nutritious consommé. His painstaking analysis results in the five checkpoints. That his list had five items was not the starting point of his analysis. Max Weber would recognise him as being competent in formal-legal reasoning. Contrast the vulgarity with which the Great Vinaya Commentary handles the same typological theme: ‘You must know the twenty-five expressions – five groups, each consisting of five expressions . . . These make up the five groups of five’ (Bapat and Hirakawa 1970: 232). The Commentator treats the number five as symbolic of theft, and therefore uses a five by five matrix as the container for his

62 Andrew Huxley typology. He produces two pages of exposition, wherein he struggles to fill all the slots his arbitrary scheme has created. For example, here are numbers 21–25, his final group of five, which he labels The Group Actually Tantamount to Stealing: The first is taking away by stealing; the second is taking away by force, the third is taking away according to a prior plan, the fourth is taking away to conceal in some hidden storage place, the fifth is taking away by shuffling allotment sticks. (Bapat and Hirakawa 1970: 234)

Or perhaps the third is unlicensed downloading of MP3 files, while the fifth is reckless dealing on the secondary mortgage market. My point is that theft is protean. New technologies and new financial instruments give birth to new opportunities to steal, and therefore to new types of theft. An analysis that starts with a matrix of five by five, then fills it, starts from the wrong place. First we must examine the real world, then list what we find, then count the number of items on the list. Preordained ornamental patterns can generate poetry, but they cannot generate useful legal analysis. I turn to the Burmese law texts, which mention the typologies of theft. No Burmese author cites the useful five checkpoints, but many have quoted the ornamental 25 kinds of theft. The Mon Dhammavilasa dhammathat (of uncertain age) refers to it but does not list or name any of the 25 items (Nai Pan Hla 1992: 582). Likewise the Kengtung dhammathat (Sai Kham Mong 2012: 203). King Badon (r 1782–1819) mentions them in his 1795 Rajathat, and names 11 of them: ‘False pretences, false accusations, breach of trust, using false weights and measures, passing debased silver, altering boundary posts, burglary, attacking villages, attacking outlying districts, highway robbery, overcharging at customs posts’ (Badon 1795: 197). For Badon, it would seem, ‘twenty-five kinds of theft’ is the appropriate name for a typology of theft, however many items are actually in the list. The Manugye dhammathat (1750s) honours the Commentary’s 25 types in full, giving the Pali names for each item, and for each sub-group of five items. It follows up this display of Pali learning with a full Burmese translation. Here is his Burmese elaboration of the last group of five: (21) Theft by having light weights (22) Taking the property of another by force (23) Forming the intention of stealing, when the owner of the property cannot see the theft committed. (24) Covering, or otherwise secreting a thing, and removing it when opportunity offers. (25) Altering an inscription, or tally, or account. (Kyaw Htun 1877: 3)

Manugye is the dhammathat most closely associated with King Alaungpaya (r 1752–60), founder of the Konbaung dynasty. Its author cared about legitimacy, so the display of Pali was probably intended to associate the king’s law with the Buddha’s Vinaya. The author of Manugye may not have provided a useful analysis of theft but he shows his credentials as a classical scholar. It is interesting then that Kyaw Htun, who worked for the British Empire, chose to reprint the whole passage in his 1877 Essay, a work funded by the Judicial Commissioner of British Burma. About a tenth of his text reproduces the entire Manugye passage on the 25 kinds of theft. Presumably Kyaw Htun was not seeking legitimacy from the British. Was he trying to tell them about the Pali roots of dhammathat and rajathat? Let us generalise beyond the law of theft. The entire pre-colonial Burmese legal tradition is organised by way of these topical lists. There are seven types of marriage, 10 kinds of assault, and 18 heads of litigation. Such topical lists can be divided into sub-topical lists (the Stoics referred to this as divisio – the fragmentation of species into genera) or accumu-

Is Burmese Law Buddhist? 63 lated into superlists (the Stoics called this partitio – inferring the existence of a species from common elements in the genera). King Bayinnaung (r 1551–82) performed a divisio on the topic of inheritance: ‘4 ancestral rules; 5 everlasting rules; 6 types of probate; 7 original probate rules; 15 beneficiaries of probate; 20 rules about the probate estate; 25 rules for clarifying probate’ (Huxley 2012: 230). A Mon dhammathat of uncertain age, Manu the Hermit’s dhammathat, creates a ‘superlist’ by way of partitio: There are 18 origins or roots of law, 32 branches of law and 39 digests of law. There are 3 kinds of bribery, 4 wrong courses, 3 kinds of giving, 4 kinds of wives, 7 kinds of slaves, 7 kinds of minor cases, 4 kinds of questioning cases, 1 kind of fair case. (Nai Pan Hla 1992: 595)

The superlist acts as an index to the dhammathat, and a useful check on whether the reader has the whole of the manuscript. The sub-topical list adds a satisfying amount of normative complexity. The topical lists represent the middle way between the eagle’s view of the whole and the bookworm’s consumption of the part. Lists are a profoundly Buddhist way to handle knowledge. Rupert Gethin (1992: 150) says that they ‘may be a feature of ancient Indian literatures in general, but . . . no one makes quite as much of lists as the Buddhists’. Take the Vinaya, for example. The first list in the Suttavibhanga is the four ‘self-defeating offences’, which are murder, theft, bad sex, and telling lies about one’s magic powers. These are the most serious offences a monk can commit and lead ipso facto to his loss of monastic status. The next most serious are the 13 ‘offences which lead to probation’, which include masturbation, building an over-ornate monastery, and falsely accusing other monks of self-defeating offences. There are six more lists, the penalties for which become increasingly trivial. These eight lists are added together to create a superlist of 227 items (4 + 13 + 2 + 30 + 92 + 4 + 75 + 7 = 227), known as the Patimokkha. It is chanted aloud each fortnight by all the monks and hermits resident within the parish boundaries. Anyone who has ever been a monk has participated in reciting the Patimokkha, and knows how legal information is packaged into lists and superlists. That is how the dhammathat and rajathat literature was structured but it does not help us understand how Burmese lawyers argued their cases. Where the lawyers disagreed on the law to be applied to a particular dispute, it was because they started from different items on the topical list. The judge has to decide which of the rules on a list is more appropriate to these facts: It has been said What the Dead Gave, the Living shall Keep. But parents exceed their authority if they do so while mortally ill, their life hanging in the balance. Urgent is the rule that states ‘Only when the division is between a complete set of children does the recipient take.’ (Huxley 2012: 233)

In this case, Lord Kyaw Thu is judge, and his ruling is supported by King Bayinnaung. In the case of the Maharajathat (1630s), Lord Kaingza is judge, and he responds to a series of requests for legal information from King Thalun (r 1629–48). The judge, not the codifier, sat at the pinnacle of the Burmese legal tradition. To put it another way, the king’s function was not to write down what the law should be in all future cases but to identify the best judge in Burma, and then to enforce and promulgate that judge’s decisions. If we use the terminology developed to analyse post-Napoleonic European law, then Burma was a case law system, rather than a codified system. My impression is that the reverse

64 Andrew Huxley was true in Thailand, at least during the nineteenth century. Though Thailand and Burma both derived their law from the same Buddhist lists and law reports, the Bangkok dynasty shaped their law into their Three Seals Code, in the hope that Thai judges would read the right answer directly from the pages of the Code. Case law and code give rise to different styles of ethical discussion. Codified law speaks a dialect of logical necessity: ‘In view of Art. 31, the result is . . .’. Case law speaks through consequential reasoning, situational ethics, rules of thumb, and personification mechanisms such as ‘the reasonable man’ and ‘the good father of the family’. Whether a legal tradition chooses code or case law shapes the nature of political and constitutional discussion. In a case law system, the political economy is debated through lists, cases and virtues the same way as a theft or inheritance case: all participate in the discussion, then the wisest among them decides the outcome. In a codified system the king is set above all other parties to the discussion: the legislator must be conceptually distinct from his subjects. The 1885 transition from tradition saw not just a change of rule from Burmese to British, but the substitution of codified law for case law. This was the result of proposals made during James Fitzjames Stephen’s tenure (1869–72) as Law Officer on the Council of the Government of India. Stephen favoured legal centralisation and codification because he felt that it was a morally superior form of government. The citizen should know in advance what procedures to expect and what rules to follow. Law, Stephen said, was simply ‘that which the legislature enacts’ (Stephen 1871: 94). People mistakenly think it has ‘an independent existence and character of its own’. What distinguishes Stephen from other legal positivists in the Benthamite school is his practical emphasis on code making: he thought it was better to have any code than to have a good one. He ‘was a Cyclopean builder’ remarked one of his successors. He ‘hurled together huge blocks of rough-hewn law’ and ‘left behind some hasty work in the Indian Statute Book’ (Ilbert 1894: 224). Stephen was personally responsible for enacting the Indian Contract and Indian Evidence Acts, and contributed largely to the Code of Criminal Procedure. Stephen lobbied to have Judicial Commissioners appointed in such backwards tracts as Assam and Burma to modernise the local laws. In 1872 British Burma was given its first Judicial Commissioner. The old Burma hands disliked the new emphasis on codification. Deputy Commissioner Horace Browne argued that attempts to transplant an Act drafted in one Province to a ‘totally distinct nationality’ ended in failure. He added that the Burmese were ‘beginning to have a horror of our Indian Acts, which are generally half inapplicable to the circumstances of the country and half unintelligible to the Burmese intellect’ (Browne 1872: 1). Browne had spent his whole career in Burma, and knew the language well enough to be complimented on his ability by King Mindon (r 1853–78). Likewise Assistant Commissioner DeCourcey Ireland (1872: 1), who warned that ‘we want no radical change, we have had too many already’. The main job Browne and Ireland performed was hearing legal appeals from the decisions of Burmese judges argued by Burmese lawyers on how to interpret the dhammathats. They saw the effects of standardisation at first hand. What good is standardisation when ‘The Burman has as little in common with the Afghan as the Parsi with the man of Kabul’? (Anon 1870: 195). But Fitzjames Stephen prevailed over those who knew Burma. By 1890 the whole country had become subject to the Indian Codes, except for the three reserved topics of religion, inheritance and family law. These were dealt with by dhammathat and rajathat. Thirty years after the 1885 conquest, the highest court of

Is Burmese Law Buddhist? 65 Empire, the Judicial Committee of the Privy Council, decided that Manugye dhammathat should henceforth be treated as a code to govern the reserved topics. Manugye ‘is of the highest authority among the Dhammathats and, where it is clear, no reference need be made to other Dhammathats’.1 Burma’s independence in 1948 was accompanied by very little legal change, but Mr Justice E Maung felt he had to correct this misunderstanding at least. His withering criticism of colonial scholarship said enough ‘to establish that the Manugye is not of the paramount authority in the body of Dhammathats’.2 Despite this, the colonial codes remained in force after 1948. Burma in the 1950s remained a legal system of codes rather than case law, as it had been prior to 1885. THE VALUE OF THE OBJECT STOLEN: THE EQUITY OF THE RULE

My second Vinaya theme follows directly from the previous one in the Great Vinaya Commentary. After enumerating and illustrating the 25 kinds of theft, the Commentator describes the strategies for valuing the object that has been stolen. Should it be less than five masakas, the full offence of theft is not made out. He quotes an ancient verse: As was sung of old: the thing, The time, the place, The use, five coins’ worth. The wise will examine these five things, And thus gain understanding.

The fifth item in this list is really the name of the list, or the purpose for which it is carried out. In attaching the number 5 to the list of ‘four criteria of value’, the ancient poet betrays his love of number symbolism. The verse is illustrated by four law reports, each demonstrating one of the criteria. The first two of these are twice as long as the law reports in the Vinaya, and give much more detail. They acted as models for a new, more thorough, way of preserving past judicial decisions, and they may explain the popularity of the four criteria of value with Burmese readers. I summarise the first decision, made by Cula-Samana, the Master of Vinaya, during the reign of Bhatika-Tissa (r 141–65 CE). It begins with the words ‘The Teacher says: I shall now give out an original ancient incident to illustrate thing’. We learn that a monk from the south came up to the Mahastupa in Anurudhapura for the big festival. While being jostled by the crowds, he lost the bolt of cloth he was carrying. Later that day, a local monk saw the cloth lying unguarded, and resolved to steal it. Having done so, he felt some guilt, and realised that he might no longer be a monk. He brought this dilemma to Rev Cula-Samana, and was told to locate the owner of the cloth. After visiting the five great monasteries in the capital, and shouting, he drew a blank. Cula-Sumana ordered him to search through the more distant monasteries in the land, and eventually he located the owner, and brought him to the Vinaya Master’s abode: ‘Had you given up all mental attachment to the bolt of cloth, once you discovered you had lost it?’ ‘Yes, I had.’ 1 2

Ma Nhin Bwin v U Shwe Gone (1914) AIR (PC) 97–105. Dr. Tha Myu v Daw Khin Pu (1951) BLR 108, at p 126.

66 Andrew Huxley ‘Then formally make a gift of it to the would-be thief. As for you, you have committed the lesser offence related to theft, but not the offence of defeat. An apology will suffice’. (Bapat and Hirakawa 1970: 235)

The law report ends with a celebration of spiritual growth. The would-be thief rejoiced in body and mind ‘like one who has obtained the taste of nectar’. The lesson we learn from this case is that thing varies in value according to whether it is ownerless at the time of its appropriation. Cula-Sumana interprets ownerlessness very generously. He equates ‘I don’t expect to see the cloth ever again’ with ‘I relinquish any ownership in the cloth’. In doing so he implies two levels of ownership. The original owner must formally convey ownership to the thief, even though he has relinquished his ownership. As English lawyers would put the distinction: ‘You have relinquished your equitable ownership, so you should make a formal conveyance of the legal ownership.’ In fifth-century CE Sri Lanka the four criteria of value were regarded as part of theft law. When they arrived in Southeast Asia they were recast as a full-blown theory of equity, applicable to any legal dispute on any topic. As early as the 1570s, Judge Kyaw Thu declared that he had ‘thoroughly inquired’ into the Petchabun inheritance dispute ‘in conformity with the four criteria of value’ and had based his ruling on them (Huxley 2012: 243). Manugye dhammathat (1750s) applies them to a criminal damage case. It tells of a fight between a pet rat and a pet squirrel, which took place on a branch at night. As a result of the fight the rat lost her litter, and her owner sued the squirrel’s owner for restitution. Judge Manu’s first reaction was to award no damages, since a fair fight between animals does not attract liability. The Nats (Burma’s local tutelary deities) failed to applaud this ruling. So the judge substituted an analysis based on two of the four variables: ‘The branch is the squirrel’s place, but the night is the only time a rat will go out in search of food. Time outweighs place: so a branch at night is rat-territory. Let the squirrel owner pay 3 ywe of silver.’ The Nats applauded this decision. (Manugye 1750s: 13)

At this point the narrative is interrupted to allow a page of further list analysis. As five expanded into 25 in the previous section, so now four turns into ‘twenty-eight criteria of value’ (Table 4.3). Table 4.3: Four Lists Containing 28 Items, from Manugye 1 2 3 4

8 variables of time 12 variables of place 4 variables of price 4 variables of things

Table 4.4 shows how Manugye subdivides the category of time. Table 4.4: 8 Variables of Time in Manugye p 14 1 2 3 4

night time war time time of famine time of plague

5 6 7 8

during a coup d’état day time good times the time of the founders

This must have its seat-in-life in oral discussions among the Burmese legal specialists.

Is Burmese Law Buddhist? 67 How the Burmese distinguished time depended on context. For agricultural planning, they distinguished between wet season and dry season. For a calendar, they distinguished between the waxing and waning of the moon. Manugye gives us the eight categories that the Burmese lawyers found most useful in the legal context. J-L Borges (1981: 142) and Michel Foucault (1970: xv) have put typologies such as these beyond ridicule. Let me attempt a defence of this particular Manugye example. Let us imagine how such a list came to be created: A Burmese lawyer analysed a lot of Burmese case law, and listed all the time-based arguments he found therein. He delivered his results as a speech, or a sermon or a lecture, which, adding a few anecdotes and some case-analysis, would have lasted for about an hour. Most of the speech, I surmise, would have been extemporised from very short notes. Perhaps the only things he wrote down were the names of the eight concepts, and the names of the eight pyattôns that illustrate them. Then, somewhere in the line of transmission the pyattôn citations are dropped, and all that is left is a mere index bereft of its case law. If the eight variables of time developed along these lines, then the incommensurabilities contained in the list are design features, not design faults, as Borges and Foucault would have it. Nothing quite so elaborate is found in the other Burmese references to the four criteria of value. Normally the list was used as the principle that allows a judge to temper the rules in their application to concrete facts. Here, for example, is one of King Badon’s judges ruling in a marital dispute: Judgment: decisions should be made in accordance with the places where the Burmese, the Shan or the Palaung live: Taking into account the four criteria of value: Kalan (time), Dethan (place), Aggan (value) and Danan (thing) in adjustment with both the Buddha’s teachings (Dhammagan gyaung) and the law texts (Dhammathat gyaung). (Hmaing 1810: 476)

The clearest statement that the four variables have become a general equitable principle comes from Tha Gywe, writing 25 years after the conquest. The dhammathats, he says, are intended to be read subject to the four variables: ‘These four conditions constitute a setting or environment from which no text should be detached’ (Tha Gywe 1910: iii). Which is to say they provide a hermeneutic (a toolbox of interpretive rules and cases) for Burmese law. In Europe the equivalent hermeneutic is the tradition that starts from Aristotle’s discussion of epieikeia as the skill of knowing when to ignore the rule in the name of a higher justice. The Aristotelian judge knows that summum ius (‘the strictest application of the rule’) brings summa iniuria (‘the greatest harm’). Cicero developed the idea by incorporating Stoic discussions of hypothetical cases. Aquinas added a Christian dimension, seeing Christianity as the new unwritten equity come to supplant those written rules of Old Testament law whose interpretation had become too strict. Following the English Reformation, Equity developed into a separate court system. Lord Chancellor Ellesmere explained that: The cause why there is a Chancery is for that men’s actions are so diverse and infinite that it is impossible to make any general law which may aptly meet with every particular act, and not fail in some circumstances.3

One of Ellesmere’s contemporaries expressed it in geometric terms: ‘Equity is diversely termed in law: sometimes as a conveniency, because it ministreth among men in a fit 3

The Earl of Oxford’s case (1615), per Lord Ellesmere, LC. 1 Chan Rep 5–16; 21 ER 485.

68 Andrew Huxley proportion, answerable to the persons, the matters, the places and the times’ (Ashe 1609: 4). The Elizabethan lawyer shared this one aspect of his hermeneutic with the Burmese Buddhist lawyers. Equity is, like Pataphysics, a science of exceptions. For that reason it cannot itself be reduced to a set of rules. All that lawyers can do is analyse those variables that have been held to make a difference. Manugye preserves an attempt by the Burmese lawyers to commit their hermeneutic to writing. Herein lay the seed for future trouble. If Burmese law becomes grown up enough to write down its hermeneutics, then some future codifier is enabled to write down a new canon of interpretation, and, by imposing it, enable a transition. This is what happened following Ne Win’s 1962 coup. The Burmese army lacked the expertise and funding for elaborate re-codification along socialist lines. Its legal specialist, Maung Maung, attempted to achieve the same end by promulgating a new socialist hermeneutic. Ne Win’s first ideological document The Burmese Way to Socialism was announced in 1962 and printed the following year: The Revolutionary Council of the Union of Burma does not believe that man will be set free from social evils as long as pernicious economic systems exist in which man exploits man and lives on the fat of such appropriation. (Myint Zan 2000: 180)

Midway through 1962, the Army’s Central School of Political Science opened in Hmawbi. Most of the generals who came to power in the 1990s, including Khin Nyunt and Saw Maung, learned the arts of governance through attending the Hmawbi training and indoctrination centre. In 1965 the Chief Court of Burma decided Maung Ko Gyi’s case, which looked at whether a breach-of-promise-to-marry case should be bound by the Indian Contract Code or by the dhammathats.4 Towards the end of his judgment, Chief Justice Maung Maung gave some general guidance on how Burma’s pre-socialist laws should now be interpreted: ‘This decision is based on Burmese custom, on the principle of non-exploitation of man by man which is now practised in Burma, and on the Lawkabala Taya, which should regulate the relationships among humans’ (Myint Zan 2000: 176). Burmese Buddhism personifies the Lawkabala Taya as the Upholders of the Compass, the Four Great Kings of the North, South, East and West, who regularly visit earth to check whether mankind cultivates righteousness and virtue. These remarks were criticised by E Maung (1970: 18), a former Chief Justice, and gave rise to a debate that is best followed in Myint Zan (2000: 175–85). My view that the case sets up a socialist hermeneutic through which all Burma’s laws must be interpreted has been criticised. But if Maung Maung did not achieve that end in 1965, he did so in 1974 by way of his Constitution, section 202(f) of which holds: ‘Existing laws . . . are to be interpreted or implemented by the central or local organs of state power in the spirit of this Constitution’. Maung Maung’s own commentary on the Constitution leaves no doubt as to what he intended. After the 1962 coup ‘the existing law was retained but was to be interpreted in accordance with socialist policy’ (Maung Maung and Wu 1982: 7).

4 Maung Ko Gyi v Daw Ohn Khin 1965 BLR (CC) 913, coram Maung Maung CJ, U Chit J, and U Sein Thinn J.

Is Burmese Law Buddhist? 69 AJJUKA’S CASE: THE PARENTS’ RIGHT TO CHOOSE

The third Vinaya theme that frequently appears in the Burmese law texts is Ajjuka’s case. This comes late in the canonical law reports on theft, but it is the first of the cases that does not rely on the authority of the Buddha as judge. Ajjuka’s case points forward to a time when the Buddha is no longer available to settle disputes between monks and laity. A rich householder living in Vesali could not decide whether to leave his wealth to his son or to his pious nephew. He asked Ajjuka, the monk whom he supported, to indicate which of the two showed more faith and belief. The nephew inherited, and the son complained to another monk, Ananda: ‘Does not the son have better claims to heirship than the heir?’ Ananda accused Ajjuka of serious monastic impropriety, whereupon Ajjuka asked Upali (the first Vinaya specialist, and the second wisest exponent of the discipline) to give a ruling: ‘Is it a crime, Ananda, to invite a layman to a meeting?’ ‘Upali, it is not even the lightest of offences.’ ‘Then, Ananda, Ajjuka has committed no offence.’ (Vin iii 45)

Upali’s ruling allowed Buddhist monks to advise their lay supporters on the ethical aspects of the family agenda, even if this foreseeably leads to the enrichment of the nephew and the impoverishment of the son. In its original context, Ajjuka’s case maps out the extent to which monks can engage with ordinary life. Had Ananda’s view prevailed, the sangha would have been as Max Weber caricatured it: a conglomeration of anomic individuals entirely cut off from the real world. Two thousand years later, the Burmese fully understood how monks should interact with their lay supporters, so they reinterpreted the case as being about something else entirely. In inheritance law, the fundamental question is whether the parents have the right to choose between possible heirs. If they do, then the law must clarify how their choice is to be expressed, given they will no longer be alive when their choice becomes operative. Britain has built up a complex body of rules on this subject, currently found in the Wills Act (1837). If the parents do not have a right to choose, then the law must specify in great detail what degrees of consanguinity are rewarded by which shares in the estate. For most of its history, Burma adopted the latter approach. The dhammathats and pyattons are concerned to the point of obsession with issues such as: How large a share in the parents’ estate should be awarded to the only surviving son of the first marriage, to the two daughters of the second marriage, and to the nephew who was adopted 20 years ago, and has lived with the family ever since? From time to time, though, Burma has recognised a right to testate. Indeed, the parental choice controversy has been the longest-running controversy in Burmese legal history. It would seem that wills were known in thirteenth-century Pagan, and were again a matter of lively discussion in the early seventeenth century. King Mindon changed the law to allow wills, but the British disallowed them when they took over a few years later. In 2013 it remains the case that the Burmese lack the power to testate. When a Buddhist society recognises the right to testate, it is monks who disproportionately benefit and kings who disproportionately suffer. Without the power to make a will, many parents whose children predeceased them will die heirless, and the king will scoop up heirless property (bona vacantia) in order to redistribute it elsewhere. Where citizens can

70 Andrew Huxley make a will, they can divert wealth from the king by naming an heir who is not a blood relative. With this controversy in mind, let us examine two eighteenth-century citations of Ajjuka’s case. Myat Aung wrote in support of monks, and of a right to testate: During the lifetime of our Buddha, a rich man who had many sons and grandsons left word that all his property should be given to the one who was discriminate and virtuous. On the death of the rich man Ananda, the Great Elder, decided that the son was the nearest blood relation to the father and that therefore he should get the entire estate, whereas the Elder Upali decided that a grandson who fulfilled the stipulations of the deceased rich man should get it. Thus did the two disciples of the Buddha decide. (Myat Aung 1770: 78)

Myat Aung has written Ajjuka out of the plot, and has swapped the nephew for a grandson. His reading of the case is that Ananda (the Buddha’s personal secretary) is in favour of automatic inheritance through status, while Upali (the Vinaya expert) is in favour of testation. Myat Aung has misquoted scripture to further Upali’s argument. Two decades later King Badon misquoted Ajjuka’s case in support of his hostility to testation, and his wish to collect assets that might otherwise have been willed to the sangha: We have one good example for cases of inheritance. A wealthy man had only one son who did not profess the true faith. When he was to die he left his property with a nephew who was of the true faith. When the son contended that he should have inherited the father’s estate, the judge decided in favour of the nephew in accordance with the will of the dead person. Inheritance therefore does not go to a person who fails to live by the words of the parents . . . (Badon 1795: 202)

Badon (or the monk who drafted the Great Rajathat of 1795 on his behalf) conflates Ananda and Upali into ‘the judge’, obscuring the fact that this precedent is scriptural. In this telling, Ajjuka’s case is about a parent disinheriting an unworthy heir. It implies that parents have the power to disinherit for good cause. Even if the law bans testation, it can move halfway towards it by adopting the rule ‘The son who disgraces the family name is treated as a dead son’. In 1860 Mi Shwe, an elderly widow, petitioned King Mindon to give his legal blessing to an inter vivos partition of her estate that she had just carried out. Mindon asked his Chief Monk for a ruling: The reply of the Archbishop was that if parents disposed of their property by will in the presence of lay and ecclesiastical persons, the other children should have no right to contest such disposition. The parental disposition should hold good. (Mi Shwe’s case 1860: 275)

The ‘Archbishop’ is either U Nyeyya (1801–66), the second Maungdaung sayadaw, or U Zagara (1822–93), the Shwegyin sayadaw. Since the parents have absolute authority over their children, he continues, it follows that if a judge allows disinherited children to claim their share, ‘both the judge and the suitors to whom a share in the inheritance is adjudicated shall be held to have broken the precept which forbids theft’. This has to be an allusion to Ajjuka’s case, which is the only discussion of inheritance contained within the Vinaya discussion of theft. Mindon accepts the Chief Monk’s argument: ‘On receiving this opinion, the King, in September 1860, by an edict, declared the disposition good and threatened punishment to any of the heirs who attempted to set it aside in the law courts’.5 5

per Mares J in Maung Me v Sit Kin Nga, Chan Toon’s Leading Cases p 263.

Is Burmese Law Buddhist? 71 For the last quarter-century of Burmese Buddhist Law, something like a will was recognised. After 1885 the British showed instinctive hostility towards testation. In 1882 Charles Bernard, the Chief Commissioner, engaged in a very wide consultation on the point, translating his appeals for comment into Burmese, and running them in the vernacular press. The archives preserve more than a hundred pages of responses (summarised and translated into English). One of the respondents, Kyaung-taga U Gwe Kalay of Moulmein, quotes Ajjuka’s case at length. From it he draws the conclusion (just as Myat Aung had done a century before) that the Buddha approved of will-making: ‘The principle If the DeaD GIve, the LIvInG shaLL have was approved even by the Phra’ (Gwe Kalay 1882: 62). During the colonial period many modernising Burmese demanded the capacity to make a will. The British never granted their wish, and neither has any successor government. The parents’ power to choose has not been granted through most of Burma’s legal history but it has always stood as a contentious possibility. The Burmese legal tradition is wide enough to contain both positions. The debate touches on economics: Who benefits when someone dies after all their relatives? It also touches on social justice: Is there a right to financial privacy? Or should everyone be able to know how wealthy everyone else is? In the absence of testation, the passage of wealth through the generations is predictable and calculable by all. Where testation exists as an option, someone who wants to read your great-grandfather’s will must make a special application to do so, and pay for the privilege. In practice testation has brought with it a de facto expectation of financial privacy. The only way of hiding wealth available in a will-free society is the timehonoured expedient of treasure burial. The 1885 transition from tradition introduced the Indian Companies Act, which allowed new routes to financial privacy through nests of limited liability companies. The 1972 transition from imperial models produced a ‘state socialism’ that was in fact an army socialism. During the 1980s the offshore mechanisms of discretionary trust and private company gained popularity, and the top generals learned how to move cash from state budgets to the British Virgin Islands and beyond. The 1990 transition from socialism does not appear to have greatly altered that picture. The shift has been from an economy directly under the army’s control, to an economy in which army control is disguised by a complex of limited companies, private banks and offshore bank accounts. In 1997 the State Law and Order Restoration Committee (SLORC) was replaced by the State Peace and Development Council (SPDC) dominated by Ne Win, Than Shwe and Khin Nyunt. The SPDC was able to negotiate ceasefires with most of the minority armies operating in the Shan States. Since many of the fiercely independent Shan and Wa armies are involved in the production and refining of opium, ceasefire negotiations were an opportunity to discuss profit-sharing arrangements. Khin Nyunt, in charge of the Secret Service, developed good relations with the Wa, and his banking operations, the Myanmar Mayflower Bank and the Asia Wealth Bank, increased their turnover. In late 2003 the US Treasury Department named his banks as ‘of primary money laundering concern’ under section 311 of the US Patriot Act (2001). Than Shwe promised to investigate the banks’ alleged links with drug trafficking and rushed out some tough new money laundering regulations,6 which duly led to Khin Nyunt’s arrest in October 2004. In July 2005 Khin Nyunt, along with 38 of his Secret 6

Namely, the Law Amending the Control of Money Laundering Law No 8/2004.

72 Andrew Huxley Police, two of his sons and various of his wife’s nephews, was convicted and sentenced. Burma needs to discuss how it can create a political economy with the virtues of transparency and incorruptibility. It needs to be optimistic about the kind of economic future that is possible. Such optimism was last demonstrated on the night of 3 January 1948, when JS Furnivall attended a pwe in Rangoon: Successive scenes depicted typical scenes of the old regime – the cultivator making over his cattle to the Indian moneylender, the wife abandoning her loom, the foreign capitalists – Indian, Chinese, European – counting up their gold, and the Burmese middle man helping them to pile it in. The play ended with the people filling their pockets in a shower of gold and silver. (Furnivall 1952: 18)

Post-colonial Burma was born on 4 January 1948. I was born three months later. Postcolonial Burma was a promising 10-year-old, a sullen 20-year-old, a depressed 30-yearold, and a severely wounded 40-year-old. I celebrated my 40th birthday in Burma, a few months before the start of the transition from socialism. That proved to be my last visit. Now, a quarter-century later, I am retiring from teaching. Permit me, then, some moralising about post-colonial Burma on the occasion of its 65th birthday. CONCLUSION

How, given Burma’s legal history so far, should the next transition be shaped? We should do it in the knowledge that constitution-drafting is less than half of the job to be done. Prior questions require answers, such as whether a case law or code approach better suits the Burmese temperament. Insofar as they are Buddhists, the Burmese favour a case law approach combined with a virtue ethics. But insofar as their fathers and grandfathers have lived under the colonial codes, perhaps codified law has become the new normal. The damage that Maung Maung inflicted on Burmese legal hermeneutics means that any future transition must explicitly address the risk of hermeneutic capture. That would mean committing to a particular style of legal education, designed to encourage a particular style of legal reasoning. Up to 1885 Burmese lawyers understood their law by analysing decisions made in the past. To recapture that legal hermeneutic would require that Law Departments teach the analysis of case law, Yale and Harvard style. It would also require that Burma’s recent case law be publicly available for consultation, whether in print or online (see Crouch and Cheesman, this volume). As to the design of a new political economy, Burma up to 1860 led the world of wealth transparency with its system for trans-generational transfer of wealth. Can Burma lead the way once again with a system of wealth holding that is transparent to all? Ambitious proposals such as this can only spring from the widest public debate. The Burmese must be able to discuss the pros and cons of any proposal, however far it is from the globalised mainstream, and to do so in public without risk of censorship. Once upon a time – up to 1885 – a distinct Burmese tradition of political philosophy existed, then the British suppressed it. Burma needs to reconnect with its own tradition, and I end this chapter by celebrating three scholars (two Burmese and one English) who have made such a reconnection possible in the twenty-first century. Hpo Hlaing (1830–83) wrote his Compendium of King-Law in 1878 as the mission statement of the pro-cabinet coup of that year. It is a work of social theory, which finds Buddhist terms for those aspects of British modernity that he saw as beneficial. Hpo

Is Burmese Law Buddhist? 73 Hlaing’s Compendium represents the last flowering of Burmese Buddhist political theory before the conquest. If Burmese social theory is what you seek, read it. Htin Fatt (1909–2006) printed the work a century after it was written, with a long scholarly introduction. He published it in the darkest days of Burmese socialism, and managed some elegant ambiguities about contemporary parallels with the 1885 transition. If Hpo Hlaing could return to Mandalay a century after his coup, how would he evaluate the socialist state? In our new era, the parliamentary democracy has been overturned and a socialist democracy installed; looking back to the source of this in the old histories, we will find that U Hpo Hlaing was the prophet who was at the beginning. (Htin Fatt 1978: 85)

Ne Win’s censors can be persuaded that he means Hpo Hlaing was the prophet of the exemplary modernisation of the Burmese state that Ne Win has successfully carried out. But Ne Win’s critics can read Htin Fatt to mean that Hpo Hlaing’s analysis of the failure of the traditional Burmese state helps us understand Ne Win’s deplorable rise to power. Euan Bagshawe (1918–2009) knew Burma through the Indian Civil Service, the diplomatic service and Imperial Chemical Industries. He devoted his retirement to translating works of Burmese social theory into English, specialising in his later years in works of the late nineteenth century. To my mind the most essential of Bagshawe’s translations is that of Hpo Hlaing’s Compendium (1878), complete with Htin Fatt’s ‘Introduction’ (1978). Bagshawe earned further merit by putting his whole translation online for free. Anyone with an internet connection, anyone who can read English, can enjoy this key work in Burmese constitutional development. And they can try Htin Fatt’s thought experiment for themselves: Hpo Hlaing was the last Burmese statesman to write a work of social theory. In what direction would he have taken Burma’s twenty-first-century transition? REFERENCES7 Anon (1870) ‘Indian Legislation since the Mutiny’ 100 Calcutta Review 195. Ashe, Thomas (1609) Epieikeia et table generall a les annales del ley (London, Society of the Stationers). [Ashe is here quoting from William West’s Symbolography, published in 1590]. Badon (1795) s29. Translated in Than Tun (1983) ‘The Royal Order (Wednesday 28 January 1795) of King Badon’ 2 Ajia Afurika Gengibarka Kenkyu 188. Bapat, PV, and Hirakawa, A (1970) Shan-Chien-P’i-P’o-Sha (Poona, Bhandarka Oriental Research Institute). Borges, J-L (1981) ‘The Analytical Language of John Wilkins’ trans by LC Simms in ER Monegal and A Reid (eds), Borges: A Reader (New York City, Dutton). Browne, Horace (1872) ‘Letter from Horace Browne to Ashley Eden’ P3/1–5 August 1872. E Maung (1970) Burmese Buddhist Law (Rangoon, Sapaylawka Printing Works). Foucault, Michel (1970) The Order of Things (New York, NY, Pantheon). Furnivall, JS (1952) ‘Unpublished Speech at Chatham House’, The Furnivall Archive at SOAS: PP MS 23/35. Gethin, Rupert (1992) ‘The Matikas: Memorisation, Mindfulness and the List’ in Janet Gyatso (ed), In the Mirror of Memory (Albany, NY, SUNY Press). Gwe Kalay (1882) ‘On Burmese Wills’, in file P/1802 A June 1882 3, pp 4–105. 7

Unless otherwise noted, all archival references are to the India Office Records, British Library.

74 Andrew Huxley Hmaing, U (the Yandameik Kyawhtin) (1810) Yezagyo Hkondaw pyatton Case no 26 of 1810, 7th decision on Matrimonial Affairs, in Okudaira, R (1999) ‘The Role that the Dhammathat (Law Book) Played in the ‘Theravada Buddhist state’ with Special Reference to the Manugye Dhammathat of Eighteenth Century Burma’ in Essays in Commemoration of the Hundredth Anniversary of Tokyo University of Foreign Studies (Tokyo, University of Foreign Studies). Hpo Hlaing (1878) Rajadhammasangaha [A compendium of king-law] trans by LE Bagshawe, www.ibiblio.org/obl/docs/THE_RAJADHAMMASANGAHA.pdf. Htin Fatt (1978) ‘Introduction to the Rajadhammasangaha’ trans by LE Bagshawe, www.ibiblio. org/obl/docs/THE_RAJADHAMMASANGAHA.pdf. Huxley, Andrew (2012) ‘Lord Kyaw Thu’s Precedent: a Sixteenth-Century Burmese Law Report’ in P Dresch and H Skoda (eds), Legalism, Anthropology and History (Oxford, Oxford University Press). Ilbert, Courtenay (1894) ‘Sir James Stephen as a Legislator’ 10 Law Quarterly Review 224. Ireland, DeCourcey (1872) ‘Letter from DeCourcey Ireland to Ashley Eden’, 28 November 1872, P6/129, App D. Kyaw Htun (1877) Essay on the Sources and Origins of Buddhist Law (Rangoon, Daily News Press). Maung Maung and Wu, H (1982) ‘Introduction’ to ‘Socialist Republic of the Union of Burma’ in AP Blaustein and GH Flanz (eds), Constitutions of the Countries of the World (Dobbs Ferry, NY, Oceana Publications). Mi Shwe’s case (1860) in Taw Sein Ko (1918) ‘Buddhist Wills’ 7 Journal of the Burma Research Society 274. (Note that Taw Sein Ko had access to the Burmese original of the law report as well as to Judicial Commissioner W Meres’ English translation of it, which is in Maung Me v Sit Kin Nga [Civil Appeal] decided 12 February 1889, reported in Chan Toon 1899 Leading Cases in Buddhist Law p 269). Myat Aung (1770) Manuwunnana dhammathat, cited in U Gaung (1902) Translation of a Digest of the Burmese Buddhist Law concerning Marriage and Inheritance, being a Collection of Texts from Thirty Six Dhammathats (Rangoon, Superintendent of Government Printing). Myint Zan (2000) ‘Of Consummation, Matrimonial Promises, Fault, and Parallel Wives’ 14 Columbia Journal of Asian Law 154. Nai Pan Hla (1992) Eleven Mon Dhammasat Texts, Bibliotheca Codicum Asiaticorum 6 (Tokyo, The Centre for East Asian Cultural Studies for Unesco). Pigou, Piers (2001) ‘Interview with the State Peace and Development Council by South African journalist Piers Pigou, conducted 2 October 2001’ 8(2) Burma Debate 19. Sai Kham Mong (2012) Shan Thammasat Manuscripts (Tokyo, Mekong Publishing Co). Stephen, James Fitzjames (1871) Minute on the Administration of Justice in British India, in Selections from the records of the Government of India, Home Department, no 90. I have used the microfilm copy held in SOAS library as M5089. Tha Gywe (1910) Treatise on Buddhist Law, vol II (Mandalay, Upper Burma Advertiser Press).

COURT DECISIONS

Myanmar Dr Tha Myu v Daw Khin Pu (1951) BLR 108 Ma Nhin Bwin v U Shwe Gone (1914) AIR (PC) 97 Maung Ko Gyi v Daw Ohn Khin (1965) BLR (CC) 913

Is Burmese Law Buddhist? 75 England The Earl of Oxford’s case (1615), per Lord Ellesmere, LC. 1 Chan Rep 5–16; 21 ER 485

LAWS Law Amending the Control of Money Laundering Law No 8/2004 (State Peace and Development Council Law)

5 Bodies on the Line in Burma’s Law Reports, 1892–1922 NICK CHEESMAN*

A ‘

LEGAL WORLD IS built,’ Robert Cover once wrote, ‘only to the extent that there are commitments that place bodies on the line’ (1986: 1601). Cover meant that through certain legal commitments bodies are made the subjects of violence. But bodies are also literally placed on the line in authoritative texts that bring the legal world into existence by mandating these commitments. This chapter investigates both these meanings through a reading of criminal case rulings published by Burma’s superior courts over a period of three decades from 1892 CE. Inasmuch as it is concerned with these meanings as found in a specific archive, it is also concerned with them generally, in the practices of political and juridical institutions everywhere. Law Reports – the published records of selected rulings from superior courts – interpret and legitimise prevailing social arrangements. These arrangements require the threat or exercise of physical force. The reports necessarily interpret and legitimise certain types of violence, while delegitimising unruly force beyond the borders of law (Sarat and Kearns 1992: 212–13). As critical legal scholars and, before them, legal realists have taught us, the success or failure of the legitimising project hinges on the ability of courts to obscure the prejudices of the judge and the politics of his or her institution. Law Reports engage in that project by representing themselves as statements of positivistic legality. They neutralise through language that is impersonal (Bourdieu 1987: 819–20). Law is reported. In an essential sense, it reports itself: the word ‘reports’ can here be understood both as a noun and as a verb. And through reports, law also embodies itself. Out of a mass of raw material, an authoritative, bounded and permanent body of law emerges, as if of its own accord. In all of these features, the Law Reports studied for this chapter are unremarkable. So why bother with them in particular? In part, because they are there. The reports constitute a rich and readily available published source of historical material, yet one that research on Burma has rather neglected. To my knowledge, in recent years only Myint Zan (2000a, 2000b, 2004) has, aside from myself (Cheesman 2011, 2015a, 2015b), used

* Thank you to Melissa Crouch, Dave Gilbert, Kah-Wee Lee, Tamara Loos and Craig Reynolds for reading and commenting on an earlier draft of this chapter, which I presented for the ‘Southeast Asian Cultural History Through Law’ panel at the Association for Asian Studies Annual Conference, San Diego, 2013, with funding through the Travel Grants Program of the Research School of Asia and the Pacific, Australian National University. Thank you also to the National Library of Australia for collecting most of the materials on which this chapter is based.

78 Nick Cheesman Burma’s Law Reports extensively for modern historical research written in English. Dominic Nardi and Lwin Moe (this volume) make a valuable new contribution to the small corpus of literature on the reports, through their content analysis of the Supreme Court’s rulings of 2007 to 2011. My answer to the question of why the Law Reports for the period studied matter is that in them we glimpse the British colonial enterprise at its apex. The Benthamite experiment in India, with its purportedly scientific and universal technology – ‘a system that might be devised, which, while it would be better for Bengal, would also be even better for England’ (Bentham 1968: 185) – had by this time run its course. A compendium of statutes now served as positive law for hundreds of millions of people. The legal text, not the bible, or rather the legal text as bible, was the gospel of empire – a ‘compulsory gospel which admits no dissent and no disobedience’, as James Stephen once put it (Stokes 1959: 302). Meanwhile, the British Empire had completed the third and final phase of its invasion and occupancy of the Irrawaddy River basin, overthrowing the kingdom at Mandalay in 1885, and, in the words of Brigadier General George White, raining ‘district officers all over the country, civilians whose courts must be hedged in by British bayonets’ (Thant Myint-U 2001: 196). The British had already rained officials over the southern parts of the territory hitherto occupied, and in 1872 had set up a judicial commissioner’s court for Lower Burma, although the court did not publish official rulings. In 1892 a judicial commissioner’s court installed in Mandalay became the first court in Burma to do so. In 1900 a newly-established Chief Court in Rangoon followed suit. The late nineteenth and early twentieth centuries were arguably the apogee of the British colonial judicial apparatus, at the height of its power and reach. Consequently, this chapter is concerned with the official published records of the two superior courts in Burma during this period, being the Lower Burma Rulings (LBR) of the Chief Court, published biannually and numbered accordingly; and, the Upper Burma Rulings (UBR) of the Court of the Judicial Commissioner, Mandalay, published irregularly. Both series ran until 1922, whereupon Burma obtained a measure of self-government through diarchy, and a single High Court in Rangoon became the court of official record. In what follows, I have organised the bodies encountered on the lines of the Law Reports under four subheadings: bodies that are offensive, assembled, gendered and obscured. To be clear, these subheadings do not constitute a typology. They are not mutually exclusive. Assembled bodies are also offensive; gendered bodies are often obscured. Nor are they comprehensive. Omitted from the chapter is the embodiment of sovereignty in its agents: the judges, policemen, village heads and other officials who also populate criminal cases, as well as their corollaries – bodies whipped and executed; bodies tortured. These other bodies deserve a piece of research dedicated to them alone, and it would not do them justice, so to speak, were I to relegate them to a few short remarks here. Lastly, the chapter is restricted to criminal cases because in a politically repressive setting, these cases are the representative mode of legal authority (Nonet and Selznick 2001: 35). The bodies placed on the line in criminal cases most clearly reveal the specific relationships with which the body politic is concerned. The one body that appears again and again in criminal cases contained in the Law Reports is the metaphoric body of the sovereign. The Queen-Empress or King-Emperor is throughout juxtaposed with the body of the appellant or respondent. Textually, the accused represents the symmetrical, inverted figure of the sovereign (Foucault 1977: 29). In the exercise of control over the body of a colonised accused lies the schema for the exercise of control over the colony itself.

Bodies on the Line in Burma’s Law Reports, 1892–1922 79

OFFENSIVE BODIES

In hitting, hurting and injuring the body of another person, the offender poses a latent threat to the body of the state. As Jacques Derrida (1989: 985) wrote in his classic exposition on the force of law, drawing on Walter Benjamin, ‘European law tends to prohibit individual violence and to condemn it not because it poses a threat to this or that law but because it threatens the juridical order itself’ by threatening the monopoly on violence that the sovereign claims. The monopoly claim is not concerned with justice. Its problem is how to establish, and then protect, a specific juridical order, which is to say, an order bound to the body of the sovereign. The Burmese translation of the Indian Penal Code implicitly recognises the relationship between the offence committed against the body of another human, and that committed against the body of the sovereign. Chapter 16 itemises ‘offences affecting the human body’ (my italics). In Burmese the chapter’s title is more evocative, and indeed more precise, describing offences that hurt the body, lu-koko tigaik-thaw pyit-hmu-mya. The same terminology is used in section 505(b) to describe the causing or inducing of an offence ‘against the State or against the public [read ‘State’] tranquility’, Naingngandaw azoya-ko pyitse, Naingngandaw ngyeinwutye-ko pyitse tigaik-thi pyit-hmu. That the relationship is evinced through statute is not at all surprising. Since the British rested the legitimacy of their enterprise on the establishment of a codified, albeit repressive, rule of law (Cheesman 2015b), the security of the realm extended to the security of the bodies of individual subjects. The Law Reports are throughout filled with instances where the body is hurt. The bodies both inflicting and receiving the hurt mostly belong to non-European men. They are vigorous and energetic. They provoke fights, grab lethal weapons and lunge at their opponents. They engage in combative struggle, stabbing, dodging blows, thrusting with spears. They go about with firearms. They get drunk and carouse, sever limbs, decapitate their prey and threaten to burn down villages. They bind people and throw them overboard. They blindfold and abduct innocents, kill children, stab their quarry in the back and slit throats. They kill in an instant, particularly with knives. Blood runs hot in veins, freely on the ground, and on the spoils of killings. In cases of assault and homicide, the bodies of victims reveal evidence of the crime. Adequate material evidence had to corroborate testimonies of witnesses; particularly, testimonies of persons implicated in crimes. Even a police officer who alleged that a group of villagers assaulted him while ‘in the act of disarming a man who had a formidable dah’ – a machete or sword – was disbelieved, since he had ‘probably exaggerated the severity of the beating’ and, had his story been true, ‘he would have more to show for it’ (King-Emperor v Nga Kala, 329, 330, my italics).1 The body itself had to speak in support of the allegation. The mere statement of the policeman that he had been seriously assaulted was insufficient. Questions of intention also fell onto the body of the victim. Rarely could the intention of the accused be proven directly. In deciding on what the person had intended, the context and material evidence left behind mattered – including the number and nature of the wounds, the weapon and evidence of how it was used. A young man who struck a local bully with a single blow to the head after the latter had abused his mother and sister could 1

8 LBR 329.

80 Nick Cheesman not in probability have intended that his target die, since the stick he used was dry and brittle in its appearance, not unusually strong or heavy (Nga Na Ban v King-Emperor).2 Nor could a man who hit his brother on the head and back with a heavy teak board have expected to cause death (Queen-Empress v Nga Ni).3 Similarly, assailants armed with bamboo sticks could not be said to have intended serious harm or death (Queen-Empress v Nga Sheik & 2,4 King-Emperor v Nga Tok Hla).5 In some cases where deaths occur despite the use of flimsy instruments, the Law Reports attribute them to the inferior quality of the victim’s body: an unusually thin skull, for instance (Nga Po Tin v QueenEmpress).6 The ‘spleen defence’ (Bailkin 2006; Kolsky 2010b: 135–40) also enabled accused persons to ameliorate or avoid punishment if they could show that the cause of death was the rupturing of an enlarged, parasite-filled organ (Queen-Empress v Nga Kyin,7 Po Yan v Crown).8 Why do the Law Reports fixate on the violent crime of man on man? One possible reason obscured in the reports themselves, but evident in contemporaneous and later records of bureaucrats and bureaucrats-cum-scholars, is a general perception that violent crime was out of control and increasing. Such views were widely held not only in Burma but in other parts of the empire too. They grew in part from assumptions among colonial administrators about the inherent criminality of the people with whom they were dealing, and their preconceptions about the social consequences that followed the collapse of the indigenous system of government, along with the religious authority and institutions that it encompassed. Some of them probably had less to do with actual conditions in the colonies than with intellectual movements in Europe, such as the Fabianism that attracted John Furnivall (Pham 2005). After all, the imperial government had no way to compare the incidence and types of crime before British conquest and afterwards. And empirical questions aside, the concept of crime was itself manifestly a political construct that differed in its character and contents before and after colonisation, making meaningful comparison impossible. Another plausible reason for the persistence throughout the records of cases in which men assault other men with blunt and sharp objects is that the masculine body of the ‘native’ and the violence of which it was capable held the British judges in its grip. The persistent attentiveness of the Law Reports to the male body sometimes has a homoerotic quality. Here and there, rulings dispense with the pretence of legal analysis to embark on stories of violence that seem to serve no purpose other than to excite in the retelling. Men struggle together ‘in the heat of passion, upon a sudden quarrel’ (Nga Min Po v Queen-Empress, 289).9 A man whose wife divorces him and comes to the house of another man – his victim – sits awaiting his quarry ‘with his loins girt up and a big stick in his hands’ (Nga Yan Thein v King-Emperor, 282).10 Many of the accounts of violence convey a sense of the athletic energy of those involved, as if the suddenness and brutality of the violence on which the British judges were called to adjudicate had 2 3 4 5 6 7 8 9 10

(1904–06)1 UBR Pen Co 33. (1897–1901) 1 UBR 314. (1897–1901) 1 UBR 318. (1897–1901) 1 UBR 316. (1897–1901) 1 UBR 293. (1892–96) 1 UBR 217. 1 LBR 237. (1897–1901) 1 UBR 288. (1897–1901) 1 UBR 282.

Bodies on the Line in Burma’s Law Reports, 1892–1922 81 aroused in them sensations that must be suppressed, along with those associated with the gendered bodies of women. The body of the male colonial subject was hated and feared, an object to be despised, yet it was also a subject of awe (Taussig 1984: 470), perhaps because of the manner in which the colonialists expressed their enterprise through their own masculinity (Levine 2003: 264; Saha 2013: 99–106). The empire ran on the virtues and strength of manly men, who knew how to control their violent impulses (Wiener 2004: 3). Conversely, the men in territories it occupied were degenerate, cruel and feeble. The Bengali was effeminate and weak (Sinha 1995). The Sinhalese was a drunkard and gambler (Rogers 1987: 210– 11). The Burmese man was indolent except when provoked. Yet, at the same time, the male body depicted in the reports of these three decades has a distinctive, perhaps depoliticised masculinity. The offender’s body seems to occupy an ambiguous zone, one somewhere between the normative masculinity of the colonial Englishman and the suspect femininity of the indigenous woman. The offender’s actions consequently also often have an ambiguity – not legal ambiguity, since the role of a court of final appeal is to eliminate that type of ambiguity – but, rather, an ambiguity associated with the narratives of violence in the reports, which at once take delight in what the ‘native’ man was capable of doing to his counterpart, but also necessarily criminalise his acts and suppress the thrill that masculine violence brings. And if the violence of the individual man attracted their attention, even more so did the violence of men in groups, the topic of the next section.

ASSEMBLED BODIES

Chapter 8 of the Penal Code deals with ‘offences against the public tranquillity’, which in Burmese translates roughly as offences to undermine the tranquillity of the state, Naingngandaw ngyeinwutye-ko pyetse-thaw pyit-hmu-mya. Two features of the translation are of special relevance to this section of the chapter. First, it signals that public tranquility is nothing other than the stability of the state. Here in the movement of offensive bodies singular into a disorderly mass, a public and potentially political body not bound to the body politic proper, we find an explicit expression of the threat posed to the corpus of the sovereign. Second, the compound word used in Burmese to designate tranquillity, or stillness, ngyeinwutye, when broken down into its roots, is also highly evocative of a conception of tranquillity under the figure of the sovereign. Tranquillity is achieved by combining a condition of being still, static and quiet, ngyein, with a condition of being crouched, prostrated or stilled, wut. People do not become tranquil of their own accord. They do so through the exercise of authority emanating from a superior power, one that imposes order and quells disorder through methods aimed at effecting obedience and awareness of subordination, evoked physically through motionless prostration. Keeping the public body motionless and prostrate before the body politic did not signify an absence of disorder. The sovereign tolerated a certain amount of disorder (Saha 2013). The room for tolerance of misconduct is even contained lexically in the gap between the concept of ‘order’ and that of ngyeinwutye. The former connotes a normative condition applicable to all; the latter, one in which a subordinate complies with the order of a superior. Therefore, questions of order in the Law Reports are not comprehensive but restricted

82 Nick Cheesman to particular problems of disorder that posed a latent or direct threat to the body politic. Among them, two stand out: one, when might bodies come together in a public space and in a manner that could unintentionally become a threat; and, two, when might they do the same but with intent to threaten the body politic? A variety of laws and regulations that prohibited or regulated assemblies of any sort that the colonial state deemed potentially threatening addressed the first of the two problems. The manner in which Burmese held festivals in public places as open-ended events from which people came and went as they pleased, and without clear demarcation of public space – or, from the viewpoint of the colonial state, organisation – jarred bureaucratic sensibilities (Edwards 2002: 281). But the heart of the matter in rulings during the period studied was not the nature of the event but the size of the crowd (KingEmperor v Nga Nyun Bu & 5).11 Thus when the question arose as to whether a cart race, foot race or a couple of dancing girls constituted performances requiring licences under section 13A of the Lower Burma Towns and Village Lands Act 1899, the answer in each case was ‘no’ (Crown v Tha Dun & 1,12 King-Emperor v Chan E,13 King-Emperor v Nga Pyu & 4).14 Custom had not attached to them special publicity or notoriety of the sort likely to attract a crowd sufficiently large as to constitute a threat in its own right. The larger the number of bodies assembled, the more likely that something might happen that the state would be obliged to contain, and consequently, the more essential that it be regulated. In cases of unlawful assembly, which could – and to the present day can, under section 141 of the Penal Code – involve any number of five or more persons, the emphasis was both on the numbers of people and their apparent purpose for assembling. Where 20 men allegedly gathered to remove timber from a cart that required only a fraction of that number, their assembly was not unlawful because the prosecution could not produce evidence that they had come together with intent to cause a disturbance or commit an offence (Ismail & 4 v Queen-Empress).15 Likewise, a similar number of people gathered for a funeral march did not in itself make the march illegal, but the fact that members of the march had allegedly uttered threats to onlookers did (Nga Kyaw Yaung v King-Emperor).16 The second of the two problems was more hazardous. Where bodies came together publicly so as to threaten the body politic purposefully, the rulings had to establish their collective intention (Saya Kye & Others v Queen-Empress).17 As in cases of individual offensive bodies, material evidence was needed to support or dispute claims of intention. But for political reasons, the Law Reports also had to weave narratives that disavowed or re-ordered the purposes of those assembled. Through the court record, the body politic sought to reassert its control both over the bodies of the accused and the public body. Political threats posed by bodies assembled publicly were deflected in part through the deliberate blurring of rebellious acts with criminal behaviour, and in particular, with dacoity – ‘dacoit’ being the anglicised form of a Hindi word for gang robbers. Dacoity might have had its etymology in India, but in Burma it became a fixture in the narrative 11 12 13 14 15 16 17

(1897–1901) 1 UBR 370. 1 LBR 110. 3 LBR 93. 4 LBR 43. (1897–1901) 1 UBR 259. (1897–1901) 1 UBR Pen Co 21. (1892–96) 1 UBR 148.

Bodies on the Line in Burma’s Law Reports, 1892–1922 83 of empire on account of what the British Burma Gazetteer (Government of British Burma 1880: 509) characterised as the ‘reckless, passionate, excitable character’ of the people, and a ‘positive fascination which an open air, unrestrained, reckless, riotous life, varied by the excitement of night attacks, and the delights of plundering’ allegedly brought them. In his classic study of rebellion narratives in India, Guha (1999: 101) has attributed colonial administrators’ homogenising of crime and resistance, the amalgamating and conflating of one type of activity with another, to ‘a perception impaled on a single stereotype of rural violence. Unable to distinguish between rebellion and dacoity [administrators] tended to classify “rebels” as “dacoits”, as if the two words meant the same thing’. But the Law Reports in Burma in the 1890s and beyond show little seeming difficulty at differentiating between dacoity and rebellion. In their contents, the classification of one and the other occurs without hints of doubt or ambiguity. Cases of dacoity concern nothing other than acts in pursuit of wealth through banditry and violence, free from political taint. By the same token, acts of rebellion, challenges to the body politic of the sovereign, are unambiguous in their character, even if they varied considerably in degree of seriousness. The 1902 Reports, for instance, recount the case of a former monk in Tharrawaddy – a district with ‘a reputation for criminality in all its branches’ (Government of Burma 1920: 81) – charged with treason for allegedly trying to restore the indigenous monarchy. The ruling laughs off the futility of the exercise while underscoring the seriousness of this type of offence, describing the march on Mandalay as ‘a hair-brained escapade’ but one that in its intent ‘most certainly constitutes a grave danger to the public peace in this Province, and must be severely punished’ (San Baw & 9 v Crown, 345). 18 The gathering of a handful of bodies to wage war against the sovereign was ridiculous in its qualities but not in its object. The threat it represented could be narrated and then neutralised by making fun of the superstitious beliefs allegedly held by the accused, since they failed to cause any material harm. On the other hand, in the case of 12 men accused of involvement in an attempted rebellion, the matter could not be laughed at, given the consequences: one fatality among government troops and a British officer among the other casualties (Nga Kaing & 11 v Queen-Empress).19 The ruling states that the matter is relatively simple insofar as seven of the accused bore ‘in their own bodies the proof of their guilt in the shape of the wounds inflicted in the fight which occurred’ with government troops, and that ‘the existence of these wounds is not only conclusive against the men who bear them, but is strongly corroborative against the remaining men’ (Nga Kaing & 11, 253, my italics). The accused men’s bodies are no longer many. They are one, because of the manner in which they had assembled themselves and marched through a town as an armed assemblage. They constitute proof of a crime by all accused, and not only those men with bullet wounds. Despite the ruling’s lumping of all the accused bodies into a guilty assemblage, among them, one stands out: the ringleader, a Buddhist monk or – here the ruling casts aspersions – an ordinary citizen passing himself off as a monk, who died during the fight. The ruling notes of the ringleader that: ‘As has been done over and over again [in Burma], he 18 19

1 LBR 340. (1897–1901) 1 UBR 252.

84 Nick Cheesman made out that he was a being in process of development into a sovereign prince and in possession of miraculous powers’ (Nga Kaing & 11, 254, my italics). In the body of the monk, we have the direct embodiment of the threat to the body politic of the sovereign. The monk represents an alternative sovereignty, one embedded in the politics of Burma, rather than superimposed upon them. He proposes to supplant the legitimate body politic with his own body. His act is politically powerful yet perplexing, since: ‘To the Englishman, with his knowledge of the might and resources of the country and his assured confidence in its military power, the whole enterprise and the inadequacy of the means to the end must appear insane’ (Nga Kaing & 11, 255). And the ruling continues: The great difference between the Englishman and the Burman is that the former requires proof and the test of experience for his practical beliefs, while the latter does not, and though the matter may be thus shortly stated, it involves a vast difference in the question now under consideration. (Nga Kaing & 11, 256)

Here we see the Law Reports working to restore the correct state of affairs and neutralise the violence not only through the assurance of punishment but also through the classification of the event as an act of madness, ignorance and folly by persons of an inferior race: one incapable of thinking scientifically. Science – whether in its medical, juridical or political forms – is the marker of modernity. Thus the appearance of the political body, a body of aggregated individuals in public space acting with an intention inimical to the interests of the sovereign, necessarily also signifies the appearance of the racialised body. The collective attempt of Burmese bodies to regain sovereignty from the body politic of the British Emperor can be neutralised, because innate qualities of the two races prohibit one from surpassing the other. Like other subject nations, the Burmese are destined, the narrative reminds us, to remain in a condition of permanent childhood, treated with good humour but punished with firmness.

GENDERED BODIES

Elizabeth Kolsky (2010a: 116) in her study of reported rape cases across India during colonial rule cites the 1926 Maung Ba Tin case, in which the High Court in Rangoon ruled that a woman’s testimony of rape would be notoriously unreliable and difficult to accept. She neglects to mention perhaps the most remarkable aspect of the ruling – that it was the only official reported judgment on a charge of rape in Burma over a period of 65 years: from 1872 to 1937, when the territory separated from India (Dunkley 1928, 1941). A few explanations offer themselves up for the elision of rape in the Law Reports. One is that in colonial-era Burma, as now, a range of institutional obstacles prevented any except the most determined complainants from reaching the superior courts with allegations of offences. The police had various methods with which to sabotage cases (Saha 2013: 118–22). They also had allies in the British who served as judges. These men held firmly to established views that women generally were not credible. One ruling overturning a conviction on the ground that the woman had consented to adulterous sex and her allegations could not be believed summed up the prevailing view when citing the lower court that:

Bodies on the Line in Burma’s Law Reports, 1892–1922 85 The important point for consideration . . . is the possibility or probability that the complainant and her witnesses, knowing in their own hearts of the adultery, determined to make up the story of rape and tell it to the husband on his return and so save complainant’s face and leave him to report the rape. (Nga Po Thaw v King-Emperor, 155)20

Gendered bodies in the colony were always imbricated with racialised bodies (Sinha 1995: 11), and in this case the nexus of the two is particularly apparent. The ruling concludes that the story of rape is obviously false, since, ‘Knowing the independent character of Burmese women, there is no necessity whatsoever . . . to wait till the husband’s return. If the case were a true one, she would have gone off and complained at once . . .’ (Nga Po Thaw, 155–56, my italics). The general attribute of deceitfulness found in all women is magnified in the colony, since Burmese women were presumed to have a disproportionate amount of power over their menfolk (Saha 2013: 117–18). Like Indian rape victims (Kolsky 2010a: 111), Burmese women were doubly suspect suspects. The Law Reports emphasise women’s duplicity by distinguishing between the untrustworthy account of a man and that of a woman. A farmer who alleged the police had assaulted him, a court found, had lied in order to save his own skin and out of ignorance, since ‘uncivilised cultivators are not likely to be aware of the cautious measures which the law prescribes before any man can be deprived of his liberty when he does not admit his guilt’ (Chit Tun & 4 v Crown, 248).21 The man who lies in order to escape punishment does so because he is ignorant of the highly refined and scientific apparatus of law designed to test the truth or falsity of his claims. The woman does so because she is innately duplicitous and scheming. Furthermore, the same apparatus lacks the science to determine sufficiently the likelihood of her telling the truth or not in each individual case. Consequently, women’s testimonies were inalterably suspect. Because women’s stories were not to be trusted, the rulings look to their bodies to offer up evidence of an offence even more than in cases with male victims. The body of a girl with ‘both her wrists cut with rope marks . . . [left] no doubt as regards the treatment she received in the cart’ of the accused who abducted her (Nga Ku & 2 v QueenEmpress, 332).22 By contrast, Justice Shaw acquitted a man who allegedly raped a four-year-old girl ‘because the child’s injuries might have been caused by any accident’ (Nga Hlwa v King-Emperor, 31).23 Her body failed to offer up the necessary material with which to convict the accused, despite the child’s grandmother alleging that she had seen the girl’s genitalia covered with blood. In another instance, a woman ‘of 44, which in the case of a native woman of her class, is the time when the youthful charms have usually departed’ was unlikely to have committed adultery with the accused, despite ample opportunity (Ali Muddin v Meah Jan, 100–01).24 The judge does not appear to have actually seen the woman but seems confident enough to conclude that, given her age and inferior class and lineage, she would not arouse the interest of a man left alone in her company. In other words, an imagined gendered and racialised body offered itself up as sufficient evidence that a crime had not been committed. Even where a woman’s body bore evidence of a crime, the Law Reports repeatedly find grounds upon which to offer some justification and reduce the sentences of those 20 21 22 23 24

(1910–13) UBR 155. 1 LBR 238. (1897–1901) 1 UBR 330. (1904–06) 1 UBR Pen Co. 31 (1910–13) UBR 100.

86 Nick Cheesman persons convicted. This tendency is most obvious in cases where women are beaten to death by relatives said to be attempting to cast out evil spirits. One ruling describes the deceased as ‘a woman of 45 years of age or more, of weakly physique . . . [whose] whole body and head were covered with a mass of bruises’ consisting of ‘very severe contusions on the body of the woman extending from the nape of the neck down to the thighs, and also on both shoulder joints extending down to the elbows’ (Nga Po Tha & 2 v KingEmperor, 59, 57).25 The ruling implies that had the beating been less aggressive, and the extent of damage to the body less apparent, the accused might have escaped with a minor penalty. Anyhow, as ‘each of the blows struck by itself was probably comparatively light, and the prevailing intention throughout would seem to have been to drive out the spirit’, the sentences could be reduced (Nga Po Tha & 2, 60). In another case, the ruling is explicit that the act of striking a girl more than a hundred times was not itself unlawful, because it was supposedly done with her consent, and that had it been done ‘with the proper care and attention’ no offence of any sort would have been committed, since the girl would not have died (Nga Po Kyaw & 3 v King-Emperor, 2). 26 Women’s bodies, and with them, the reputations they bear, are throughout the reports cast as sites of latent obscenity and immorality. They are maligned and belittled. And where women commit crimes, their offences generally are associated with deceit, for reasons already set out above, or vulgarity. One ruling characterises Burmese women as displaying great command of ‘irritating language and such astonishing ingenuity in the invention of nettling expressions’ as to give rise to violence (Queen-Empress v Mi Mye Mi, 360).27 In another case, two women are found guilty of using ‘foul and abusive language in the [residential] quarter every day without intermission to the annoyance of monks and men’ (King-Emperor v Mi Kun Ya & 1, 4).28 The reports for the three decades studied do not appear to have any equivalent ruling where monks or men were themselves prosecuted for such an offence. Whereas women often commit crimes through the sharpness of their tongues, only rarely do these offences translate into violence. Where they do, the Law Reports again offer gendered readings of their bodies to account for their behaviour, and thereby determine punishment. A young woman accused of murdering her newborn child is ‘unusually strong’ and ‘repulsive-looking and of a low type’ (King-Emperor v Mi Mein Gale, 5).29 The inference in this case is that her allegedly masculine appearance lent credence to her having committed the crime. By contrast, a teenage girl who leaves her newborn in the jungle and comes back home weak and perspiring is not held responsible for the later death of the child (Mi Ma v King-Emperor).30 The girl’s manner is pleasing, her fragility and seemingly innocent act deserving of pity, not condemnation. In these and other cases we find ourselves staring right through the depictions of women’s bodies on the lines and back into the patriarchal gaze of the British male judge. The Law Reports constitute a form of elite self-portraiture, visible through regard for certain bodies with which they ought to be properly concerned, a portrait of elites as they would have themselves seen, ‘designed to be impressive, to affirm and naturalise’ 25 26 27 28 29 30

(1917–20) UBR 54. (1902–03) 1 UBR Pen Co 1. (1897–1901) 1 UBR 360. (1904–06) 1 UBR Pen Co 4. (1914–16) UBR 5. (1914–16) UBR 6.

Bodies on the Line in Burma’s Law Reports, 1892–1922 87 their power (Scott 1990: 18). But the self-portrayal of the elite self requires of its producers not only that they exaggerate and emphasise particular features of power. It requires of them also that they elide, obscure and omit other features that might fail to impress or affirm, features that might cast an altogether different hue on the self-image of a paternalistic albeit despotic government. With this requirement the next section is concerned. OBSCURED BODIES?

Legal texts bring things into existence through naming. By the same token, the refusal to name can also ‘un-create’, or at least deny something empirically relevant: ‘what is not in the file does not exist’, one European maxim put it (Damaška 1986: 33). Yet as much as Anglo-Indian criminal law sought to exclude features of society inconsistent with its self-image, it tended to obscure rather than erase, particularly where the relevant features were integral to the mechanics of the colonial state. Hence, the obscured bodies with which this last section is concerned are not to be misunderstood as invisible bodies, absent bodies or nobodies; on the contrary, they are often bodies whose presence is felt strongly but goes unacknowledged, or is otherwise not as we might expect to find it. They occupy uncertain spaces between the visible and the invisible, not so much on the lines as falling between the lines of the Law Reports. Among these bodies, I limit this section to three: altered bodies, racialised bodies and sexualised bodies. I begin with altered bodies because, of the three bodies addressed here, they have the smallest presence, both on and between the lines of the reports. The marginalisation of the altered body, the branded body or the tattooed body in the reports is notable, because scholars of colonial Burma have in recent works emphasised the attentiveness of the late colonial state to the use of tattoos as markers of political and social action and membership (Aung-Thwin 2011; Kim 2012). In special criminal courts during the 1930s (some 10 years after the last of the reports studied for this chapter) tattoos on the bodies of accused persons were recorded in evidence against them – obliging a Burmese judge to show his European counterparts that he too had tattoos on his body, so as to insist that inked flesh was insufficient to constitute an offence (Ba U 1959: 109). The inscribed body could itself be criminalised and with it the social body of which it was part. Absent the politics of tattooing of the late colonial period, the Law Reports over the three decades from 1892 limit their references to body-altering techniques in cases where men encouraged venomous snakes to bite them believing themselves immune from the poison (Queen-Empress v Nga Po Kyin,31 Nga Bu Tu v King-Emperor).32 The reports take an obvious delight in recounting at some length the stories of the victims so as to wonder at the credulity of the rural villager. In this respect, they are precursors for the politically-oriented rulings against tattooed rebels of later decades, in which accused persons also were made subjects of humour and derision for their superstitious beliefs. However, because the altered body in these cases is not dangerous but vulnerable, the narrative lacks the urgency and force associated with the politically oriented cases that came later. 31 32

(1897–1901) 1 UBR 298. 11 LBR 56.

88 Nick Cheesman In contrast to altered bodies, racialised bodies are present on every page of the reports. They frequently do not appear openly on their lines, but rather, are invariably somewhere between the lines. The obscuring of the racialised body might seem incongruous, given that I have already noted its presence in relation to other bodies. Yet, race is elided from many frames of reference in which it is implicitly present. Given the extent to which the Anglo-Indian legal project had been concerned with the construction of rule based upon racial difference (Chatterjee 1993: 16–22; Kolsky 2010b: ch 2), this elision can hardly be accidental. Racism was inherent in European colonial ideology and practice, and the obscuring of the racialised body in much of the Law Reports’ contents is an effect of colonial governmentality, rather than evidence of disregard for race. The obscuring of the racialised body is noteworthy given that largely omitted from the Law Reports are crimes of, as well as crimes committed upon, Europeans. Contemporaneous accounts, as well as some recent excellent studies, have cast light on the extent to which Europeans were complicit in acts of criminality. Some of these cases, such as the gang rape by a group of British soldiers in Rangoon of a Burmese woman, reached all the way up to the viceroy (Kolsky 2010b: 199–202; Neill 2011). Yet, a reading of the Law Reports would have us believe that the most serious offence allegedly committed by a European was the illegal purchase of liquor (Queen-Empress v Ahyu & 1).33 References to race do appear directly in certain types of cases where the colonial government designated offences for some races but not for others – in other words, where the reports are responding to the contents of positive law. Under a system of licensing pursuant to the Excise Act, vendors in Upper Burma were prohibited from selling alcohol to European soldiers and Burmans. In cases brought where they had violated the prohibition, questions turned on whether the vendor knew that the person to whom the alcohol was sold belonged to one of these groups, or that, if selling to a third person, it was intended to be consumed by members of these groups. Similarly, non-Burmans in Upper Burma were permitted under the Opium Act to carry opium for personal use. The law gave rise to cases in which guilt or innocence turned not on the possession of the drug but on the clothes the accused wore and language he spoke, and in one case, the name his father bore (Queen-Empress v Nga Tha Dun).34 The reports also sometimes assign bodies racial characteristics for explanatory purposes. Their narrative skips along with an inference that a person’s behaviour is characteristic of a certain race. For instance, one appellant is described as ‘a wild Shan’ (Nga Nan Da v King-Emperor).35 His racialised identity accounts both for why he would be carrying a sword, and why he would be prepared to use it on an excise officer. In this instance, the Shan’s alleged racial attributes work to his advantage. They enable the judge to offer up some explanation as to why the man responded savagely to gunfire rather than give himself up. The wild Shan may be unusually aggressive when put into a fight, but once his body is racialised he is made legible, his behaviour comprehensible and, to an extent, legally justifiable. His pronounced masculinity – an attribute of the minority fighting race to which he belongs – also makes for a happy contrast to the uncertain masculinity of the majority Burmese. 33 34 35

(1897–1901) 1 UBR 184. (1892–96) 1 UBR 144. (1917–20) UBR 176.

Bodies on the Line in Burma’s Law Reports, 1892–1922 89 In another case, the racialised body meets with another obscured body, the sexualised body, in the figure of a woman ‘of Portuguese and Chinese extraction’, the mistress of a German and thereafter a Muslim, at the centre of a ‘most disgusting and sordid state of affairs’ (Abdul Rahman v King-Emperor, 137).36 Her parentage and upbringing signal an attitude that she has somehow been damaged morally, such that she would permit a man on whom she was financially dependent to have sex with her teenage daughter. A child of mixed descent, her body functions, as Penny Edwards has put it, ‘as a metonym for the fragility and ephemerality of “white” minority rule’, a figure ‘imbued with moral laxity, lasciviousness, deviousness, treachery, racial instability and political infidelity’ (Edwards 2002: 284–85). In contrast to the wild Shan, her racialised body has no redeeming qualities whatsoever, and combined with her gender, only serves to confirm that she is a hybrid of the worst possible types. Sexualised bodies occupy a threshold between the absent altered body and the everpresent, but invariably concealed, racialised body. Colonial regimes worked aggressively ‘to enforce “civilised” sexual and gender norms through law, coercion, or moral pressure backed by economic and political infrastructures’ (Loos 2009: 1315). But the sexualised body is not the same thing as the gendered body, and the norms that attach to each are not uniform. On the contrary, as the Law Reports make plain, the gendered body and the sexualised body required very different mechanisms for their effective management. Whereas gender was constantly a feature of adjudication, sexuality was something to be policed but apparently not adjudicated. In Burma, both administrators and parts of the general public took a persistent interest in prostitution, which in the major cities was widespread, frequently debated and variously regulated (Ikeya 2011: 125–26; Levine 2003: 180–315). Questions of sexuality and legality were in the colony debated not behind closed doors but in the public domain. They were the subjects of extensive documentation and titillation: Ann Stoler (2002: 43) goes so far as to argue that ‘no subject is discussed more than sex in colonial literature’. Yet, not only is practically nobody raped in the Law Reports, as noted already, but also practically nobody pimps or prostitutes. Nobody sodomises – or, as section 377 of the Penal Code would have it – commits unnatural acts. A few women appear as love interests, or as targets of violence due to confrontation between men. A couple has sex on temple grounds (Queen-Empress v Nga Po San & Mi Kin).37 Where charges for sexual crimes are brought, however, they are often lodged as other, non-sexual, offences, such as assault and confinement. The rulings describe an underage girl in one such case as having been ‘persuaded’ into ‘a condition of concubinage’ (King-Emperor v Nga Ni Ta, 16).38 Others are ‘seduced’ into having sexual relations, the accused ‘seducers’ being charged with kidnapping. The Law Reports’ pains to obscure the nexus between sex and crime, and the connection between the bodies involved in sexual and criminal acts, speak to the altogether different roles of the police and the courts in the colony. Policing is necessarily about suppression, about pressing down upon those things that are likely to cause disturbance to society. Adjudication, by contrast, is about making things public, about pulling things up and putting them on display through performance. Whereas police can conceal through suppression, the courts can conceal only through denial. Sexuality, and, in particular, 36 37 38

(1910–13) UBR 136. (1892–96) 1 UBR 199. (1902–03) 1 UBR Pen Co 15.

90 Nick Cheesman sexual crimes of the sort that prevailed in Burma but were not documented in the Law Reports, could become a part of the public record as a matter of regulation but not as a matter of adjudication. Whereas the gendered body enabled the Law Reports to constitute an authoritative reading of colonial society, the sexualised body posed a threat to that reading, and had to remain obscured, along with other bodies that nonetheless mattered to the politics of the colony. CONCLUSION

Law reports document and adjudicate on disputed facts but the facts they document are not merely those of the case at hand. The reports are themselves the products of contestation over the political and social issues of the time. They filter, re-present and re-create these issues so as to depoliticise the political, and also to reconceptualise the social in an elite idiom. In colonial Burma, the Law Reports documented the production of a form of law that, while claiming to be universal and scientific, was, in fact, highly particular, situated in the ideas and values of a dominant alien group, translated through peculiar interpretations of the ideas and values of the groups it encountered and sought to subordinate. The bodies written into the reports’ lines come together to presuppose the existence of a social order that could be rendered coherent and stable through the binding force of the contents of codified law. The whole point of the enterprise was to make coherent those aspects of indigenous life that resisted interpretation and ready understanding, by forcing them into a juridical frame that presupposed a social order that was coherent, stable and binding on each of its imagined members. Once inside the frame, new social and political norms could be firmly embedded in the colonial subject’s body (Collingham 2001: 1–10), perhaps even more firmly embedded (or so the law’s designers hoped) than in the geography over which the sovereign claimed suzerainity. The authoritative law-producing and law-reproducing project was, however, inevitably fraught with tensions, contradictions, inconsistencies and ambiguities that undermined its claims and aspirations. Colonial subjects’ bodies defied the efforts of law to render them legible and therefore controllable, to map out and occupy their terrain; to envisage in new and strange ways, as it were, the geo-body (Anderson 1991; Thongchai 1994) of the body. That bodies on the lines of Burma’s Law Reports persistently occupy liminal spaces is a consequence not only of design but also of circumstance. For each body deliberately obscured in the rulings is another that has somehow evaded attempts to capture it and hold it hostage to the ostensibly scientific rationalism of Anglo-Indian law. So it is with a note of desperation that the ruling in the Nga Kaing case (256) concludes, ‘Though the Englishman and the Burman are living side by side in the same country, there is between their minds a great gulf fixed’. The universality of scientific jurisprudence that the Penal Code and its apparatus of courts and bureaucrats were supposed to epitomise met their match in the messy complexity of the colony. The sovereign juxtaposed with the criminal accused might win the case, but, ultimately, control over the body of the accused failed to translate, as the Benthamites had hoped, into control over the colony itself. People subject to colonial legality refused to capitulate to the body politic of the sovereign, even when their corporeal bodies were forced to comply with its demands.

Bodies on the Line in Burma’s Law Reports, 1892–1922 91

REFERENCES Anderson, Benedict R (1991) ‘Census, Map, Museum’ in Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, Verso). Aung-Thwin, Maitrii (2011) The Return of the Galon King: History, Law and Rebellion in Colonial Burma (Athens, Ohio & Singapore, Ohio University Press & NUS Press). Ba U, U (1959) My Burma: The Autobiography of a President (New York, NY, Taplinger Publishing Co). Bailkin, Jordanna (2006) ‘The Boot and the Spleen: When was Murder Possible in British India?’ 48(2) Comparative Studies in Society and History 462. Bentham, Jeremy (1968) The Works of Jeremy Bentham, vol 4. 11 vols. (Edinburgh & London, William Tait; Simpkin, Marshall & Co). Original edn, 1843. Bourdieu, Pierre (1987) ‘The Force of Law: Toward a Sociology of the Juridical Field’ 38 Hastings Law Journal 814. Chatterjee, Partha (1993) The Nation and its Fragments: Colonial and Postcolonial Histories (Princeton, Princeton University Press). Cheesman, Nick (2011) ‘How an Authoritarian Regime used Special Courts to Defeat Judicial Independence in Burma’ 45(4) Law and Society Review 801. —— (2015a) Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge, Cambridge University Press). —— (2015b) ‘Rule-of-Law Lineages in Colonial and Early Postcolonial Burma’ 50 Modern Asian Studies forthcoming. Collingham, Elizabeth M (2001) Imperial Bodies: The Physical Experience of the Raj, c. 1800–1947 (Cambridge, Polity Press). Cover, Robert (1986) ‘Violence and the Word’ 95(8) Yale Law Journal 1601. Damaška, Mirjan R (1986) The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, CT, Yale University Press). Derrida, Jacques (1989) ‘Force of Law: The “Mystical Foundation of Authority”’ 11(5–6) Cardozo Law Review 921. Dunkley, Herbert Francis (1928) A Digest of Burma Rulings (1872–1922) (Rangoon, Superintendent, Government Printing and Stationery, Burma). —— (1941) A Digest of Burma Rulings (1923–1937) (Rangoon, Superintendent, Government Printing and Stationery, Burma). Edwards, Penny (2002) ‘Half Cast: Staging Race in British Burma’ 5(3) Postcolonial Studies 279. Foucault, Michel (1977) Discipline and Punish: The Birth of the Prison. Trans by Alan Sheridan. (London, Allen Lane). Original edn, 1975. Government of British Burma (1880) The British Burma Gazetteer (Rangoon, Government Press). Government of Burma (1920) ‘Tharrawaddy District’ in Burma Gazetteer (Rangoon, Superintendent, Government Printing, Burma). Guha, Ranajit (1999) Elementary Aspects of Peasant Insurgency in Colonial India (Durham, NC, Duke University Press). Ikeya, Chie (2011) Refiguring Women, Colonialism, and Modernity in Burma (Honolulu, HI, University of Hawaii Press). Kim, Diana (2012) ‘The Story of the Tattooed Lady: Scandal and the Colonial State in British Burma’ 37(4) Law and Social Inquiry 969. Kolsky, Elizabeth (2010a) ‘“The Body Evidencing the Crime”: Rape on Trial in Colonial India, 1860–1947’ 22(1) Gender and History 109. —— (2010b) Colonial Justice in British India (Cambridge, Cambridge University Press). Levine, Philippa (2003) Prostitution, Race, and Politics: Policing Venereal Disease in the British Empire (New York, NY, Routledge).

92 Nick Cheesman Loos, Tamara (2009) ‘Transnational Histories of Sexualities in Asia’ 114(5) American Historical Review 1309. Myint Zan (2000a) ‘Of Consummation, Matrimonial Promises, Fault, and Parallel Wives: The Role of Original Texts, Interpretation, Ideology and Policy in pre- and post-1962 Burmese Case Law’ 14(1) Columbia Journal of Asian Law 153. —— (2000b) ‘Two Divergent Burmese Rulings on Criminal Defendants’ Confessions: An “Ideological Analysis”’ 19(2) University of Tasmania Law Review 335. —— (2004) ‘A Comparison of the First and Fiftieth Year of Independent Burma’s Law Reports’ 35(2) Victoria University of Wellington Law Review 385. Neill, Jeremy (2011) ‘“This is a Most Disgusting Case”: Imperial Policy, Class and Gender in the “Rangoon Outrage” of 1899’ 12(1) Journal of Colonialism and Colonial History, http://muse. jhu.edu/journals/journal_of_colonialism_and_colonial_history. Nonet, Philippe and Selznick, Philip (2001) Law and Society in Transition: Toward Responsive Law (New Brunswick, Transaction Publishers). Original edn, 1978. Reprint, 2001. Pham, Julie (2005) ‘J.S. Furnivall and Fabianism: Reinterpreting the “Plural Society” in Burma’ 39(2) Modern Asian Studies 321. Rogers, John D (1987) Crime, Justice and Society in Colonial Sri Lanka (London, Curzon Press). Saha, Jonathan (2013) Law, Disorder and the Colonial State: Corruption in Burma, c. 1900 (London, Palgrave Macmillan). Sarat, Austin and Kearns, Thomas R (1992) ‘Making Peace with Violence: Robert Cover on Law and Legal Theory’ in A Sarat and T R Kearns (eds), Law’s Violence (Ann Arbour, MI, University of Michigan Press). Scott, James C (1990) Domination and the Arts of Resistance: Hidden Transcripts (New Haven, CT, Yale University Press). Sinha, Mrinalini (1995) Colonial Masculinity: The ‘Manly Englishman’ and the ‘Effeminate Bengali’ in the Late Nineteenth Century (Manchester, Manchester University Press). Stokes, Eric (1959) The English Utilitarians and India (Oxford, Clarendon Press). Stoler, Ann Laura (2002) Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley, CA, University of California Press). Taussig, Michael (1984) ‘Culture of Terror – Space of Death. Roger Casement’s Putumayo Report and the Explanation of Torture’ 26(3) Society for Comparative Studies in Society and History 467. Thant Myint-U (2001) The Making of Modern Burma (Cambridge, Cambridge University Press). Thongchai Winichakul (1994) Siam Mapped: A History of the Geo-body of a Nation (Honolulu, HI, University of Hawaii Press). Wiener, Martin J (2004) ‘Murder and the Modern British Historian’ 36(1) Albion 1.

CASES Abdul Rahman v King-Emperor, (1910–13) UBR 136. Ali Muddin v Meah Jan, (1910–13) UBR 100. Chit Tun & 4 v Crown, 1 LBR 238. Crown v Tha Dun & 1, 1 LBR 110. Ismail & 4 v Queen-Empress, (1897–1901) 1 UBR 259. King-Emperor v Chan E, 3 LBR 93. King-Emperor v Mi Kun Ya & 1, (1904–06) 1 UBR Pen Co 4. King-Emperor v Mi Mein Gale, (1914–16) UBR 5. King-Emperor v Nga Kala, 8 LBR 329. King-Emperor v Nga Ni Ta, (1902–03) 1 UBR Pen Co 15. King-Emperor v Nga Nyun Bu & 5, (1897–1901) 1 UBR 370.

Bodies on the Line in Burma’s Law Reports, 1892–1922 93 King-Emperor v Nga Pyu & 4, 4 LBR 43. King-Emperor v Nga Tok Hla, (1897–1901) 1 UBR 316. Mi Ma v King-Emperor, (1914–16) UBR 6. Nga Bu Tu v King-Emperor, 11 LBR 56. Nga Hlwa v King-Emperor, (1904–06) 1 UBR Pen Co 31. Nga Kaing & 11 v Queen-Empress, (1897–1901) 1 UBR 252. Nga Ku & 2 v Queen-Empress, (1897–1901) 1 UBR 330. Nga Kyaw Yaung v King-Emperor, (1897–1901) 1 UBR Pen Co 21. Nga Min Po v Queen-Empress, (1897–1901) 1 UBR 288. Nga Na Ban v King-Emperor, (1904–06) 1 UBR Pen Co 33. Nga Nan Da v King-Emperor, (1917–20) UBR 176. Nga Po Kyaw & 3 v King-Emperor, (1902–03) 1 UBR Pen Co 1. Nga Po Tha & 2 v King-Emperor, (1917–20) UBR 54. Nga Po Thaw v King-Emperor, (1910–13) UBR 155. Nga Po Tin v Queen-Empress, (1897–1901) 1 UBR 293. Nga Yan Thein v King-Emperor, (1897–1901) 1 UBR 282. Po Yan v Crown, 1 LBR 237. Queen-Empress v Ahyu & 1, (1897–1901) 1 UBR 184. Queen-Empress v Mi Mye Mi, (1897–1901) 1 UBR 360. Queen-Empress v Nga Kyin, (1892–96) 1 UBR 217. Queen-Empress v Nga Ni, (1897–1901) 1 UBR 314. Queen-Empress v Nga Po Kyin, (1897–1901) 1 UBR 298. Queen-Empress v Nga Po San & Mi Kin, (1892–96) 1 UBR 199. Queen-Empress v Nga Sheik & 2, (1897–1901) 1 UBR 318. Queen-Empress v Nga Tha Dun, (1892–96) 1 UBR 144. San Baw & 9 v Crown, 1 LBR 340. Saya Kye & Others v Queen-Empress, (1892–96) 1 UBR 148.

LAWS Excise Act No 22/1881, as amended by Act No 12/1896 (The Burma Code, Vol III) Lower Burma Village Act No 3/1889, as amended by Act No 18/1895 (The Burma Code, Vol X) Opium Act No 1/1878 (The Burma Code, Vol IV) Penal Code No 45/1860 (The Burma Code, Vol IV)

6 Understanding the Myanmar Supreme Court’s Docket: An Analysis of Case Topics from 2007 to 2011 DOMINIC J NARDI, JR AND LWIN MOE

A

S POLITICAL REFORMS continue to transform Myanmar’s political landscape,1 there have been widespread calls for judicial reforms (for example, Hluttaw 2013). After 50 years under military rule, it is widely agreed that Myanmar’s judicial system lacks the capacity and expertise necessary to serve the legal needs of the country. We know, however, surprisingly little about the judiciary and its everyday operations. Aside from a handful of academic articles and reports from NGOs (for example, Cheesman 2011; IBAHRI 2012), most of our knowledge of Myanmar’s judicial system comes from anecdotal news reports of individual cases (UNDP 2012: 28). One experienced foreign aid worker has remarked that we do not even know what types of cases Burmese courts receive. In this chapter we begin to fill that gap. We start with a brief history of Myanmar’s Supreme Court, emphasising how its lack of independence has limited the types of appeals the court receives. We then explain our data, a set of 99 cases from the 2007– 2011 Myanmar Law Reports. Next, we explain our methodological approach. For a variety of theoretical and methodological reasons, we use natural language processing (NLP) tools to create a latent topic model that calculates the amount of text in each judicial decision associated with each topic. We then use our results to analyse changes in topics over time. We find that criminal cases comprise the largest topic on the Supreme Court’s docket, followed by judicial/litigation procedures and inheritance cases. Finally, we offer several proposals for future research, and, in particular, extension of our methodological approach.

1 In 1988 Myanmar’s government changed the official English-language name of the country from ‘Burma’ to ‘Myanmar’. Most countries, as well as the United Nations, use ‘Myanmar’. Some Burmese pro-democracy activists and foreign governments still call the country ‘Burma’ however. In this chapter, we use the term ‘Myanmar’ not to indicate political sympathies but rather to remain consistent with the name of the country as written in the 2008 Constitution and the Myanmar Law Reports (Pyitaungsu Thamada Myanma Naingngandaw or ‘Republic of the Union of Myanmar’).

96 Dominic J Nardi, Jr and Lwin Moe

HISTORY OF MYANMAR’S SUPREME COURT

In order to understand what types of cases appear on the Myanmar Supreme Court’s case docket, it is important to understand the Court’s history. Except for a brief period of parliamentary democracy, the judiciary has not been independent. Successive military governments have limited the Court’s jurisdiction and punished judges who issue rulings adverse to the regime. As a result, the judiciary remains institutionally marginal and suffers from weak capacity. The Supreme Court’s political role – or lack thereof – in turn both affects the types of cases the Court receives and creates possible bias in the reporting of cases in the Myanmar Law Reports. Parliamentary Democracy (1948–62) Myanmar’s 1947 Constitution stands out as the only Burmese Constitution before or since to guarantee judicial independence. After independence, Parliament severed the Burmese Judicial Service from the Burma Civil Service in order to provide judges with more independence. At the time, salaries for judges were relatively high compared with those of other government officials.2 Furthermore, justices could be removed only for proved misbehaviour or incapacity (1947 Constitution, s 143). Justices were generally respected by political elites, at least initially, and often served in important posts after retirement, including the presidency. In addition to its general appellate jurisdiction, the Supreme Court was also granted the right to exercise constitutional review under the 1947 Constitution. It soon became one of the most active and progressive courts in Southeast Asia. In reviewing petitions for writs, the Supreme Court declared that the Constitution should be interpreted in a ‘large and liberal comprehensive spirit’.3 For example, during the civil war after independence, it announced that the writ of habeas corpus could not be suspended, even during an emergency.4 It also assumed the authority to exercise judicial review over the President whenever he acted in a quasi-judicial manner.5 While government frequently criticised the Court’s decisions, it never engaged in an organised effort to violate the Court’s independence or integrity (Cheesman 2010). For Myanmar’s current pro-democracy opposition, the Supreme Court during this era represented the high watermark of progressive jurisprudence. By contrast, subsequent military governments accused the Court of interfering with security operations and being out of touch with ordinary citizens. Dr Maung Maung, who served as Chief Justice from 1965 to 1971, later as Judicial Minister (1971–74), and briefly as President (1988), attacked the pre-1962 courts for making the Burmese more litigious and favouring the ‘capitalist classes’ (Maung Maung 1975). While undoubtedly exaggerated, there is an element of truth to this claim. As British historian JS Furnivall (1961) noted, the judiciary grew out of touch with Burmese society as it focused on individual political and 2 Monthly salaries for judges ranged from 2,500 kyats (approximately A$500) for a High Court judge to 3,500 kyats (A$700) for the Supreme Court Chief Justice, compared to 1,700 kyats (A$340) for government ministers (Maung Maung 2008b: 512–13). 3 U Htwe (a) A.E. Madari v U Tun Ohn & One (1948) BLR (SC) 541. 4 U Htwe v U Tun Ohn & One (1948) BLR (SC) 541. 5 U San Win v The Secretary, Ministry of Judicial Affairs (1957) BLR (SC) 84.

Understanding the Myanmar Supreme Court’s Docket 97 civil rights of criminal defendants – hardly a popular cause, even under normal circumstances. The Court received few cases dealing with the sorts of issues that plagued the average citizen, such as poverty and war. Burmese Socialist Programme Party (1962–88) After the 2 March 1962 coup, General Ne Win, Chief of Staff of the Burmese Armed Forces, ordered the arrest of Chief Justice Myint Thein and imprisoned him until 1968 – longer than former Prime Minister U Nu (Maung Maung 2008a: 253–64). The new Revolutionary Council annulled the 1947 Constitution and embarked on a long process of restructuring the judiciary. On 30 March the Revolutionary Council abolished the Supreme and High Courts and replaced them with the Chief Court (Taya Yôn Chôk). Far from engaging in judicial activism, this new court allowed its power to issue writs and exercise constitutional review to fall into desuetude (AHRC 2008: 15–20). The Court rejected Burma’s common law heritage by directing judges to accord greater priority to Buddhist Dhammathats or law treatises over British statute (Huxley 1998: 16–17). In 1972, the military, now governing through the Burma Socialist Programme Party (BSPP), went a step further and replaced the regular courts with a system of ‘People’s Courts’. All judges were required to be members of the BSPP and they took guidance from BSPP Township Councils, rather than court legal staff (Fink 2009: 40). The 1974 Constitution formalised this system and even required judges to ‘protect and safeguard’ the socialist system (s 101). It also replaced the Chief Court with the Council of People’s Justices (CPJ). The CPJ was directly responsible to the Pyithu Hluttaw, and CPJ members served in both bodies (s 104). Burmese law prescribed no minimum qualifications for CPJ justices.6 Most CPJ members were former generals; during its first term, only one was a lawyer. Under the 1974 Constitution, the Pyithu Hluttaw, not the CPJ, had ultimate authority over constitutional interpretation (s 200(c)). Although the Constitution provided for individual rights, these fell entirely outside the Court’s jurisdiction and the CPJ never exercised constitutional review (Myint Zan 2000: 9). The Court also refused to enforce individual rights under statutory law.7 Judges no longer accepted writs in criminal cases. Rather, the People’s Courts generally engaged in arbitration and heard disputes between private parties. Public trust in the judicial system declined. By the late 1980s the People’s Courts were subject to accusations of corruption, inefficiency and incompetence (Fink 2009: 40, Taylor 2009: 339–42). SLORC/SPDC (1988–2010) When the Burmese military seized power on 19 September 1988, the State Law and Order Restoration Council (SLORC) – rechristened the State Peace and Development Council Council of People’s Justices Law No 13/1974. There were other barriers to enforcing legal rights. The Protection of Citizen’s Rights Law No 2/1975 allowed citizens to lodge complaints against state officers but s 17 allowed the state to prosecute petitioners for wrongfully misusing the law. See Cheesman 2010: 18. 6 7

98 Dominic J Nardi, Jr and Lwin Moe (SPDC) in 1997 – immediately declared martial law and announced that it was ‘not bound by any Constitution’. Between June 1988 and March 1989, the tatmadaw (army) convened military tribunals in order to try political cases (Venkateswaran 1996: 26–29). Like the Revolutionary Council, once the SLORC felt more secure, it relied less on tribunals and more on the ordinary courts. On 27 September, it formally abolished the People’s Courts, replacing lay judges with professional lawyers.8 It also restored the Supreme Court and appointed five new justices, with former court Registrar U Aung Toe as the Chief Justice (Order No 5/1988). Later, under the Judiciary Law No 5/2000, the Supreme Court gained responsibility for appointing lower court judges (s 13). Ultimately, SLORC/SPDC restored the pre-1962 judicial system in form but not spirit. Under Chapter IV of the Judiciary Law 2000, the Supreme Court had appellate jurisdiction over criminal and civil cases. The Court was also required to confirm all death sentences (s 5(f)). Section 5(h) implied that the Court had jurisdiction to examine orders and decisions that infringe on individual rights, but in practice it never attempted to void any executive action. Indeed, although pro-democracy activists would sometimes appeal rights violations to the Supreme Court, they did so in order to gain public attention, rather than in the expectation that doing so would change the outcome. While section 2(a) of the law nominally protects judicial independence, the junta dismissed judges without formal impeachment proceedings several times.9 Not surprisingly, the judicial system was plagued with irregularities. According to Steinberg (2010: 129), ‘Trials are usually secret, sentences perversely long (and extendable at the state’s command), and prison conditions deplorable’. Several former political prisoners claimed that they lacked an opportunity to challenge lawfulness of their arrest, as allowed under the Code of Criminal Procedure (1898: ss 60–61). Judges used their contempt power in order to compel lawyers who defend political prisoners to instruct their clients not to resist the proceedings (UN GAOR 2009: para 35). Amnesty International (2004: 18) reported that in some cases judges took directions regarding sentences directly from Military Intelligence officers.10 Democratic Transition (2010–) The 2008 Constitution and 2010 Judiciary Law largely confirmed the institutional structure of the judiciary, with a few exceptions. As before, the Supreme Court exercises appellate jurisdiction over the High Courts for each state/region, as well as subordinate District and Township Courts (ss 314–16). For the first time in over 50 years, the Court has the power to issue writs, including habeas corpus (s 296). Between 31 March 2011 and 30 June 2013, the Supreme Court received 432 petitions for writs, of which 286 were rejected, and 84 are pending (NLM 9 August 2013, see Crouch, this volume). The Supreme Court does not, however, have the power of constitutional review. Instead, the Constitution established a new Constitutional Tribunal with exclusive jurisdiction over constitutional disputes. See Judiciary Law No 2/1988; Taylor 2009: 452–53. Soon after seizing power, the SLORC dismissed 62 judges for failing to imprison political prisoners longer than the sentences prescribed by statute (Order No 5 of 1988; NCUB 2002). On 14 November 1998, 64 judges, including five Supreme Court justices, were ‘permitted to retire’ (Order No A.0694(I) of 1998). 10 The Supreme Court even went so far as to hold that judges presiding over trials inside prison did not possess the authority to decide who could attend hearings (Allchin 2011). 8 9

Understanding the Myanmar Supreme Court’s Docket 99 The text of the Constitution is somewhat vague and contradictory with regard to judicial independence. It states that the judiciary should ‘administer justice independently according to law’ (s 19(a)). However, in explaining the separation of powers, it states that the judiciary is separate ‘to the extent possible’ (s 11(a)). In a 2011 case the Constitutional Tribunal clarified this ambiguity by ruling that section 11 guarantees judicial independence and declaring that the Ministry of Home Affairs’ appointment of adjudication officers at the township level was unconstitutional.11 Impeachment, however, could pose a threat to this new-found independence. A quarter of Hluttaw members from either chamber can initiate impeachment proceedings, giving tatmadaw members sufficient votes to impeach any judge. The grounds for impeachment include potentially subjective terms such as ‘inefficient discharge of duties’ (s 302). Indeed, in August 2012 the Hluttaw initiated impeachment proceedings against the Constitutional Tribunal, forcing all nine members to resign (Nardi 2012). Under the Constitution, the President nominates a Supreme Court Chief Justice, who is confirmed by the Hluttaw. The remaining Supreme Court and High Court justices are nominated by the President in consultation with the Chief Justice (s 299). The Hluttaw can only reject nominees if they do not meet the qualifications for nominees (s 299(c)(i)), which allows the President significant discretion (s 301). The Supreme Court currently has seven members, including Chief Justice Tun Tun Oo, a retired lieutenant-colonel and former deputy Chief Justice (2007–11). The Supreme Court itself supervises the appointment and removal of district and township court judges.12 Myanmar political leaders, from Hluttaw Speaker Shwe Mann to opposition leader Aung San Suu Kyi, have called for judicial independence and rule of law reform (for example, Lwin 2012, Hluttaw 2013). However, the judiciary as a whole is widely perceived as lagging behind in the reform process. The government has not yet developed a systematic approach to judicial reform. Foreign donors have only recently begun to engage the judiciary, with mixed success (see USIP 2013, IBAHRI 2012, UNDP 2012). Law Departments are also in dire need of assistance. Despite the fact that Myanmar is still nominally a common law country, law departments do not teach jurisprudential analysis or reasoning (Myint Zan 2008). In fact, law department curricula contain a large offering of international law and other topics that do not provide practical legal skills but are viewed as politically ‘safe’. Litigation is still prohibitively expensive for ordinary Burmese, despite the efforts of legal aid groups assisting indigent clients (Cheesman and San, forthcoming). While there have been no public surveys of attitudes towards the judiciary, several reports indicate that lawyers and citizens consider the judicial system too costly and unreliable to settle everyday disputes (for example, IBAHRI 2012). Although section 375 of the 2008 Constitution states that ‘accused shall have the right of defence’, this does not seem to imply that the government must provide indigent defendants with a lawyer. There is no government-funded legal aid programme and no public defender programme, except for defendants who are accused of capital crimes. For smaller disputes, such as traffic accidents, there is a strong incentive to settle quickly without involving the formal justice sector. Therefore, cases appealed to the Supreme Court are likely to be those that involve either significant amounts of money or personal liberty. 11 12

Chief Justice of the Union v Ministry of Home Affairs (2011) No 01/2011 CT. Judiciary Law No 20/2010, s 42.

100 Dominic J Nardi, Jr and Lwin Moe Myanmar Law Reports The primary source for judicial decisions is the Myanmar Law Reports. Published since the British colonial era by the Supreme Court’s Law Report Publishing Board, the reports are the official source of Myanmar Supreme Court decisions. These reports are not comprehensive records of the Court’s activities for each year. Rather, cases are selected for publication based on their significance and jurisprudential value. From independence until the mid-1960s, most decisions in the reports – then the Burma Law Reports – were published in English. However, under Ne Win, the Court was ordered to use the vernacular Burmese language. The last English-language decision was published in 1968. The number and quality of decisions reported in the Myanmar Law Reports have decreased over time (Myint Zan 2004; Maung 2001). Under the BSPP and SPDC/SLORC, the Supreme Court has tended to issue fewer rulings per year. Most decisions summarise the facts of the case and spend little time explaining the legal reasoning underpinning the decision reached. In one illustrative example, Myint Zan (2004: 22) calculates that the average decision in the 1948 Burma Law Report contained 4.61 citations to other cases, whereas the average in the 1998 Myanmar Law Report was a mere 1.27. Although we do not have digitally readable cases before 2007 in our sample, this trend does suggest topics in our sample will likely focus on words associated with the facts of a case – such as personal names and pronouns – as opposed to legal terms. For this chapter, we use 99 decisions from the 2007–2011 Myanmar Law Reports. As noted above, this does not consist of the entirety of the Supreme Court’s activity during this time, and the Court did, in fact, decide many more than the 99 cases in our corpus. As mentioned above, The New Light of Myanmar recently reported that the Court received 432 petitions for writs between 31 March 2011 and 30 June 2013 (NLM, 2013) but our sample only contains four cases that even mention writs. This of course means that our sample is biased, likely over-reporting routine criminal and minor civil disputes and under-reporting politically controversial cases (Maung 2001). Unfortunately, because there are no private law reports, we have no way of overcoming this reporting bias. The results of our model should nonetheless prove useful as a means of understanding the cases that have precedential value.

THE CASE FOR AUTOMATED TOPIC ANALYSIS

To our knowledge, this chapter is the first use of NLP to analyse a corpus of Burmese documents, so it is worth explaining our decision to use NLP. Traditionally, scholars of judicial politics have hand-coded judicial decisions in order to study the topics on a court’s docket (for example, Spaeth et al 2012). Scholars had been sceptical of computerised content analysis because, unlike earlier NLP software, humans could connect terms to larger theoretical concepts, such as topics. Indeed, one of the limitations of topic models is that they only provide lists of words associated with a topic, not labels for the topics themselves. Humans can also detect ambiguous references to topics, such as words that have special meanings in judicial decisions (for example, ‘commerce’ in US constitutional jurisprudence).

Understanding the Myanmar Supreme Court’s Docket 101 In recent years, political scientists have used unsupervised computer learning methods in order to uncover the latent structure in corpora (Grimmer and Stewart 2013; Grimmer 2010; Rice 2012). Advances in NLP have made it possible to use probabilistic models to connect words in a corpus to latent topics. Meanwhile, the reliability of hand-coding has come under increased criticism. With hand-coding, the researcher must select the topics for which to code a priori, a process that is necessarily influenced by the coder’s own experience and expectations (McGuire and Vanberg 2005). Researchers might include more or fewer topics than would be appropriate for the corpus in question. For example, some researchers might decide to divide criminal law into subsections for murder, narcotics and so forth, while others might only use a single overarching topic. By contrast, as discussed below, topics in NLP are chosen according to the fit of the model, not by humans. In addition, there is a risk that coders will be biased, consciously or unconsciously. Harvey and Woodruff (2013) find evidence of confirmation bias in the US Supreme Court Database. According to the study, issue areas generally align to the coder’s expectations of how a case was decided along the US liberal/conservative political spectrum. Coders might also decide to create topics based on their expectations of what types of cases the court hears, even if such cases comprise an insignificant portion of the court’s docket. For example, many researchers would be tempted to create a separate topic for Burmese cases dealing with political prisoners, even though such cases are generally rare. With automated topic models, assignment of the topics to documents is taken out of human hands, reducing the risk of bias. Hand-coding rules typically limit the number of topics to which each case can be assigned to one or two topics. However, in reality, most cases cover a large range of topics. For example, a case about theft of improperly registered land might touch upon criminal, property, and administrative law. Many judicial decisions contain language about procedural issues, such as the court’s jurisdiction and standing, which might not be directly related to the substantive issues in the case. Automated topic models produce more refined information, including the percentage of the text in each document that falls under each possible topic. Rather than simply indicating if a document contains a particular topic with a ‘1’ or ‘0’, NLP topic models can assign ‘25%’ for Topic 1, ‘50%’ for Topic 2, and ‘25%’ for Topic 3, and so forth. There are also practical limitations on hand-coding large corpora. Researchers must hire and train assistants to code decisions. Because of concerns about bias, researchers will typically hire several coders and compare their results in order to assess intercoder reliability. Adding more documents significantly increases the time and money required to complete the coding. These factors are especially important for Burmese judicial decisions because of the relative scarcity of potential coders who can both read the language and possess the legal expertise to evaluate the topics in cases. By contrast, NLP topic models can be employed by a single researcher. Once the researcher learns enough computer programming to run the model – and there are currently several off-the-shelf packages available online13 – the marginal cost of adding more cases is negligible. If anything, a larger corpus should improve the robustness of the results.

13 For example, the R ‘topicmodels’ package (Grün and Hornik 2011) and the Stanford Natural Language Processing Topic Modeling Toolbox, available at http://nlp.stanford.edu/software/tmt/tmt-0.4/.

102 Dominic J Nardi, Jr and Lwin Moe Unfortunately, topic models are not panaceas. Unsupervised topic models are not guaranteed to produce substantively interpretable topics (Chang et al 2009). There might be words that frequently appear together in decisions but together do not belong in a coherent topic. For example, the ‘Union of Myanmar’ is listed as the name of one of the parties in every Burmese criminal case, meaning that the terms ‘Union’ and ‘Myanmar’ will be correlated with criminal topics even though they are not criminal law terms. In most cases, researchers simply need to recognise when seemingly irrelevant words do make sense in the context of the topic. In the next section, we also discuss possible ways to ameliorate these problems. PROCESSING THE TEXTS

Before a latent text model is run, all texts must be pre-processed in order to extract information about word frequency counts across documents. Since the mid-1960s, however, all judicial decisions have been published only in Burmese (Myint Zan 2004). This raises several unique challenges to the application of existing NLP tools to the Myanmar Law Reports. First, the decisions were posted on the Supreme Court’s website14 in Portable Document Format (PDF) using American Standard Code for Information Interchange (ASCII) encoding with Win-family fonts. The choice of PDF format made documents readable with computers without proper fonts, but the statistical computer program we use, R, can only read text files. We therefore used Adobe Acrobat to convert the Supreme Court decisions from PDF to text. The next step was Unicode conversion. Fortunately, Win-family fonts were commonly used before Myanmar Unicode was introduced in the late 2000s. As a result, converters for Win-family fonts to Unicode were readily available. We converted Supreme Court decisions into Unicode using Stribley’s (2013) TECKit converter, which removed English words or phrases mixing with Burmese. The converter cannot tell which part of the text is in English because they were all in ASCII encoding. For example, the converter would not be able to correctly convert the English word in sain di geit (syndicate). To the computer program, both Burmese and English were in Latin alphabet in ASCII encoding. As a result, these English phrases or words would be removed in the word segmentation step. For English-language corpora, Porter stemming algorithms are often used to stem English words to their roots so the topic model can recognise different forms of the same word (for example, ‘decide’ v ‘deciding’) (Grimmer 2010). Burmese, however, does not have declensions or conjugations so such stemming is not necessary. Burmese does make use of markers at the end of words to indicate numbers, type and tense. Moreover, like many Southeast Asian texts, Burmese script is not segmented at word levels by spaces. In other words, text would appear as ‘bookone’ rather than ‘one book’. To overcome these problems, we implemented a word segmentation algorithm to segment sentences into words. Statistical word segmentation methods cannot reliably be used because there are not enough Burmese corpora available online to compile statistical information about word frequencies in the Burmese language, which would be necessary to provide a basis for comparison. Instead, we adopted a rule-based computational method, a longest match word segmentation algorithm, similar to Syllable Level Longest 14

Available online at www.unionsupremecourt.gov.mm/?q=node/49.

Understanding the Myanmar Supreme Court’s Docket 103 Matching described in Htay and Murthy (2008). Sentences were broken into words and then matched with the longest headwords from the Burmese-English dictionary of the Myanmar Language Commission (SEALang 2013). For example, if the dictionary contains the words {the, defendant, lost, de, ant, case, fend} and the algorithm encounters the sentence ‘thedefendantlostthecase’, it would be segmented as ‘the defendant lost the case’. By contrast, a shortest match algorithm would have incorrectly accepted ‘the de fend ant lost the case’.15 We then removed words that were not in the dictionary. This effectively removed words such as proper nouns from the corpus in the expectation that names will never provide information about legal topics. Many Burmese names consist, however, of combinations of common nouns (for example, former junta Supreme General Than Shwe’s last name means ‘gold’). Such words would not be removed. Fortunately, we only noticed two words that frequently appeared in the corpus that likely only appeared there as personal names: ‘diamond’ (sein) and ‘gold’ (shwe). We also removed several other words that we believe only appear in the corpus because of segmentation errors. 16 We created a ‘stoplist’ with these terms to manually remove them. Finally, we took steps to remove both very rare and very frequent terms in the expectation that these are unlikely to be correlated with unique topics. For frequent terms, we calculated the term-frequency inverse document frequency (TF-IDF) score for each word. TF-IDF indicates how important each word is to the entire corpus, balancing the frequency with which it appears in the document against its frequency in the entire corpus (Blei and Lafferty 2009). We set a threshold of 0.006, so any words with a TF-IDF higher than that were removed. We then removed sparse terms – words that appear in fewer than 10 per cent of documents (that is, ͠ 10 judicial decisions) – which are more likely to be words only associated with a particular case and not connected to broader topics. This last step is more important in evaluating the fit of the model than in determining the terms that comprise the topics. LATENT TOPIC MODELS

This section provides a brief, non-technical summary of the methodology underlying latent topic models. For readers not interested in methodology, we recommend skipping to the next section for a discussion of our results. Readers who wish to understand more about the method, should consult the online technical appendix.17 Because we do not have any direct means to measure the topics, the terms in each topic, or the distribution of topics within each document, we treat them as latent variables. As such, we use a Bayesian model to determine the probability that a particular document falls within a particular topic cluster. We use a Latent Dirichlet Allocation (LDA), which relies upon a Dirichlet distribution, to model the generative process of words in documents in the corpus (see Grimmer and Stewart 2013 for a discussion of 15 No matter the algorithm used, there would inevitably be some inaccuracies because of the lack of large Burmese corpora to provide statistical baseline. Our assumption that segmentation with fewer words will tend to produce better results might be flawed in some cases. The longest match word segmentation algorithm would choose ‘the lawyer did not pickup the bill’ over ‘the lawyer did not pick up the bill’ – clearly incorrect in this context (Moe 2008). Again, statistical methods involving corpus analysis would be able to disambiguate this by noting that ‘pick up’ is more commonly used in the English language than ‘pickup’. 16 Including ‘pride’ (ma na), ‘resemble’ (hsin), and ‘place of articulation’ (htan). 17 Online technical appendix available at http://lwinmoe.org.

104 Dominic J Nardi, Jr and Lwin Moe other models). LDA treats documents as a collection of terms from the corpus (Grün and Hornik 2011). We then use information about the frequency and distribution of words across documents to estimate those latent variables. In line with Bayesian statistics, we use maximum likelihood estimation in order to maximise the log-likelihood of the data with respect to the model parameters. Because this requires calculating several joint probabilities, the calculations can quickly become intractable. To compensate, we use Variational Expectation-Maximisation (VEM) to approximate the latent variables (Jordan et al 1999; Wainwright and Jordan 2008). This process approximates the latent variables. This means that the model is probabilistic; the posterior probabilities and top terms are never precisely the same, although the results do tend to be consistent.18 Latent topic models unfortunately do not automatically estimate the number of topics. Researchers must set the number of topics themselves. We use perplexity scores to guide our choice (Rosen-Zvi et al 2004). First, we trained the computer to learn the word distribution in a sample of documents. Next, we tested the model by allowing the computer to read the first half of each document and then guess the topic distribution in the second half. The better the prediction, the less ‘perplexed’ the model. However, perplexity is monotonically decreasing in the number of topics, so researchers cannot simply select a global or local minimum. Rather, best practice is to make selections based on the change in the rate of decrease (Blei, Ng and Jordan 2003; Rice 2012). If perplexity decreases drastically at k number of topics and then only improves gradually afterwards, then k provides the best fit. Perplexity provides a ‘best fit’ for the model, but does not always produce substantively interpretable results. Chang et al (2009) argue that topic models selected only according to perplexity scores risk word intrusion (for example, words that do not appear related to the topic) and topic intrusion (for example, topics that do not appear related to the corpus). As such, they recommend visually inspecting the top terms in order to ensure that each topic has a substantive meaning (see also Grimmer 2010; Grimmer and Stewart 2013). RESULTING TOPICS

Figure 6.1 plots the perplexity scores for the model at 2–20 topics. The decrease in perplexity is very steep until around five topics, at which point it becomes more gradual. Thus, we selected five topics as the best fit for our topic model. The variation in perplexity is, however, relatively small and less informative than hoped. We believe this is due partly due to the small size of our corpus (99 documents, whereas most topic models use thousands). The more texts in a corpus, the more topics the topic model can support. For confirmation, we visually inspected the top ten terms for each topic within the range of 3–7 topics. We consistently observed less word intrusion and topic intrusion at five topics than at other levels. We also observed that models with greater than five topics tended to split criminal law into two separate topics, even though the separate subtopics did not appear conceptually distinct. 18 In writing this chapter, we examined several versions of the model and noticed that the topic clusters appeared similar in different iterations of the model, even to the extent that the top term in each topic was the same.

Understanding the Myanmar Supreme Court’s Docket 105

Figure 6.1: Perplexity Scores for Topic Models

After running the topic model, we examined the top 10 terms associated with each topic cluster (Table 6.2). Upon inspecting the terms, we created labels we believe indicate how the terms are related (recall that the topic model does not automatically generate labels for the topic): (1) judicial/litigation procedure; (2) criminal law/procedure; (3) domestic (family/abode) law; (4) inheritance law; and (5) contracts/commercial law. We do not argue that these labels are definitive but merely that they provide a useful reference indicating how the terms are related. While the connection between some of the terms in each cluster and the topic label are not immediately clear, one can imagine plausible explanations for most. For others, it is possible that there is some underlying correlation between that term and other terms in the topic that is not based in any concept related to the topic. It is also important to note that not all of these topics will be used to classify entire cases. For example, Topic 1 (judicial) contains language that will appear in nearly every case. The topic model might classify a certain percentage of text in a case as falling under this topic, even if the rest of the case deals primarily with criminal law claims. Moreover, the list of five topics obviously does not represent every possible topic that could possibly appear on the Supreme Court’s docket. Rather, it contains a list of topics latent to the structure of the corpus, as determined by word distributions and frequencies. In other words, these are the topics we would expect to see regularly in the docket.

rulings

amendment pyidaungzu union

representative

litigant

by-law

execution of court decree

permission

judgment

cease/lose

prosecute/ litigate

kyintôn

pyin sin

koèsalè

ahmu the

niubade

zari

akwin

si yin chit

pyetkwet

tyaswè

1

2

3

4

5

6

7

8

9

10

mu yit se wa

taungdan

maw taw yin

drugs

imprisonment

motor vehicle

interrogate

pyin sin

mi ba

pèsha

azauk a-ôn

punishment tha

sitse

amendment taing

ein

mye

ne taing

thin

pyitdan

property

vehicle

crime

Burmese

amwesaing

tha

azo

si man

set kan

kyanyit

kwèlun

pit si

amwe

Burmese

distribute

right to claim inheritance

son

proposal

manage

inherit

left out

die

property

inheritance

English

Topic 4: Inheritance Law

amendment kwè we

parents

remove

building

son

sit

house

land

settle

he/she (pron.)

English

Topic 3: Domestic (Family/Abode)

pyin sin

pyitsi

yin

pyithmu

Burmese

English

Burmese

English

Topic 2: Criminal Law/ Procedure

Topic 1: Judicial/ Litigation Procedures

let yauk

kyôk so

padinyin

yaungcha

mye

yaung

hmatpôn tin

ngwe

sachôk

pyitsi

Burmese

by hand; personally

sign agreement

agreement

sell

land

sell

register

money

agreement

property

English

Topic 5: Contracts/ Commercial Law

106 Dominic J Nardi, Jr and Lwin Moe

Table 6.1: Top Terms for Topics

Understanding the Myanmar Supreme Court’s Docket 107 We then took two steps to ensure that the topic model was assigning topics to cases in ways that seem consistent with how a human coder would classify the case. First, we randomly selected five cases from the corpus, and asked a coder to read them and then describe the primary topic. Then, we compared the human assessment with the topic model results As can be seen in Table 6.2, the human coder labelled the five cases as: (1) criminal (drugs); (2) contracts; (3) crime; (4) land/house dispute; and (5) writ. We note that we did not ask the coder to match the topics to those we found in the topic model, so those labels are independently generated. The hand-coding compares very well to the results of the topic model. According to the topic model, 99.8 per cent of the text in the two cases labelled as criminal fell under the criminal topic (Topic 2). The second case, deemed to deal with contract law, contained 78.1 per cent of contract-related text (Topic 5). The fourth case, dealing with a house/land dispute, contains a majority of judicial text (Topic 1) but a significant minority of text falls under the domestic and inheritance topics (Topics 3 and 4). It is unclear why the model assigned such a high percentage of text to Topic 1 but this could simply reflect the presence of judicial procedural issues in the case. Finally, the fifth case, which deals with writs, was classified as having 99.8 per cent judicial-related text. Although the word for ‘writ’ (sagyaundaw amein) does not appear in the top terms, this assignment matches the concept underlying that topic. Table 6.2: Comparison of Hand-Coding and Topic Models Case Name Year

Type

Human Coding

Aung Zaw 2007 Moe vs Union of Myanmar

Criminal criminal (drugs)

0.001

0.001

0.998

0.001

0.001

0.219

0.000

0.000

0.000

0.781

contracts

Judicial Domestic

Criminal Inheritance

Contracts

Universe Co Ltd vs MHLG Trading Co Ltd

2007

Civil

Union of Myanmar vs Khin Maung Oo

2010

Criminal criminal

0.001

0.001

0.998

0.001

0.001

Daw May Thu Pa vs Daw Thida Pa

2010

Civil

land/ house

0.797

0.115

0.000

0.086

0.000

Daw Baby Than Pa vs U Tint Lwin

2011

Civil

writs

0.998

0.001

0.001

0.001

0.001

(Numbers in the last five columns are percentage of text allocated each topic)

108 Dominic J Nardi, Jr and Lwin Moe Second, the Myanmar Law Reports groups cases into civil and criminal divisions. We calculated the average posterior probability for each document for each topic within each division (Table 6.3). This provides an estimate of how much each topic appears in criminal as opposed to civil law cases. As expected, cases in the criminal division are more likely to have high levels of the criminal topic (Topic 2). By contrast, cases with high amounts of inheritance (Topic 4) are more likely to be in the civil division of the Myanmar Law Reports. The results for domestic and contracts law (Topics 3 and 5) appear mixed, with some cases falling under civil law and others under criminal law. We had no a priori expectations about these topics, although the results do suggest that Topic 5 should not be interpreted exclusively as civil contracts cases. Because we only have five years of cases in the corpus, we cannot make any definitive statements about how the distribution of topics in the Supreme Court’s docket has changed over time. Nonetheless, we do observe several interesting trends. In Figure 6.2, we plot the average posterior probability for each document for each topic for each year. This shows how much of each topic appeared on the Court’s docket in a given year. We use averages rather than the sum of cases containing that topic because the average is independent of other trends that could affect the total number of cases in a given year. It is entirely possible that the Court’s overall caseload rose between 2007 and 2012, which would also be reflected as an increase in the number of cases

Table 6.3: Comparison of Civil and Criminal Cases Row Labels

Judicial

Criminal

Domestic

Inheritance

Contracts

0.053

0.348

0.087

0.241

0.270

Civil

0.073

0.144

0.078

0.362

0.343

Criminal

0.012

0.757

0.106

0.000

0.124

0.059

0.517

0.124

0.182

0.119

Civil

0.158

0.000

0.209

0.521

0.111

Criminal

0.006

0.793

0.078

0.000

0.122

0.247

0.370

0.125

0.183

0.075

Civil

0.410

0.063

0.056

0.342

0.130

Criminal

0.061

0.722

0.205

0.000

0.012

2007

2008

2009

0.195

0.318

0.154

0.202

0.130

Civil

0.321

0.008

0.239

0.355

0.078

Criminal

0.034

0.717

0.046

0.006

0.197

2010

0.319

0.371

0.080

0.063

0.167

Civil

0.512

0.002

0.109

0.115

0.262

Criminal

0.112

0.767

0.048

0.007

0.065

Grand Total

0.179

0.392

0.110

0.164

0.155

2011

(Numbers are percentage of text allocated each topic)

Understanding the Myanmar Supreme Court’s Docket 109

Figure 6.2: Trends in Topic Posteriors (2007–2011)

within each topic. By contrast, our measure is similar to measuring the proportion of text in the average judicial decision on the Court’s docket within a given year. 19 Criminal law (Topic 2) comprises the largest proportion of cases in the Myanmar Law Reports. Overall, approximately 42 per cent of text in the corpus deals with criminal law. More importantly, this text seems highly concentrated. The topic model assigned 44 out of the 99 cases posterior probabilities for criminal law greater than 0.50, indicating that the majority of the text in those decisions dealt with criminal law. The high level of criminal cases is not completely surprising. Given the costs of litigation in Myanmar and the general suspicion with which many citizens still hold the courts (IBAHRI 2012; USIP 2013), litigants will tend to only appeal a decision when they have much to lose from a defeat. In criminal cases, the defendant’s liberty – and, in a handful of cases, life – are at risk. Thus, so long as defendants can afford the appeal, they have little to lose and much to gain. In 2007–08, inheritance (Topic 4) was the next largest topic in the Myanmar Law Reports. During that time, slightly less than 20 per cent of text in judicial decisions dealt with inheritance topics. Again, the financial cost of litigation helps explain this outcome. In inheritance cases, litigants typically dispute their right to a relatively large amount of money or valuable real property. Because most citizens did not trust Myanmar’s banking system (Rieffel 2010; Turnell 2008), many Burmese tended to invest in real property or other valuable goods, such as gems. This means that inheritance is not easily divisible between heirs (that is, dividing a plot of land between several offspring would reduce the 19 In this case, this distinction does not affect our inferences because the total number of cases is 100 and the number of cases is fairly evenly distributed across each year, so the two measures are nearly identical. Nevertheless, this distinction is important for properly assessing the results of topic models.

110 Dominic J Nardi, Jr and Lwin Moe size and value of the land), giving potential heirs an even greater incentive to pursue their claims all the way to the Supreme Court. After 2009 the amount of inheritance and domestic law (Topic 3) in the Court’s docket decreases steadily. We find this result puzzling and suspect that it merely reflects typical variation in the Court’s docket over a five-year span of time. It is possible that the global economic recession that started in 2008 reduced the ability of Burmese citizens to afford litigation. We should note, however, that these cases were all appealed to the Supreme Court before the real estate boom in Myanmar drove property prices to astronomical levels. Were the corpus extended to 2012–13, we would expect the proportion of inheritance and contract cases to increase. There are only moderate levels of contracts/commerce law (Topic 5) in the Supreme Court’s docket (14 per cent of the text in the corpus, respectively). Referring back to Table 6.2, the top terms for contracts/commerce law seem largely related to real estate transactions. The emphasis on ‘signing’ or ‘entering into’ an agreement suggests a degree of formalism not found in regular sales in Myanmar. Moreover, hma pôn tin (‘register’) refers to the process of registering land ownership. The presence of a contracts/commerce topic dominated by real estate does seem appropriate, given that real estate is the only type of high-stakes economic transaction in which ordinary Burmese citizens will engage (outside major urban areas, car ownership is rare). Finally, the judicial/litigation procedures topic (Topic 1) starts as the least frequent topic and then rises after 2008 to become the second most frequent topic by 2011. As noted above, this topic captures language probably present in every judicial decision, and, as expected, most cases contain at least a small amount of this topic. However, there are still 13 cases with posterior probabilities for Topic 1 over 60 per cent, indicating that those cases dealt largely with judicial/litigation procedure. Moreover, most of these cases were found in the 2011 Myanmar Law Reports. We are not sure why this topic has seen such a marked increase between 2009 and 2011. It could indicate that the distribution of topics on the Court’s docket became more complex during this time. The increase during 2009–10 does pre-date the enforcement of the 2008 Constitution and 2010 Judiciary Law, so we do not believe the change in the Court’s docket stems from changes in its jurisdiction or institutional structure. We suspect that the increase in language related to judicial/litigation procedures during 2011 partly reflects the Supreme Court’s new power to issue writs under the 2008 Constitution (which went into force after the November 2010 elections). Between 31 March 2011 and 30 June 2013, the Supreme Court received 432 petitions for writs (NLM 9 August 2013), so it is not surprising that some of them would be reported in the Myanmar Law Reports. Indeed, as seen in Table 6.3, 99.8 per cent of the text in the fifth case, which dealt with writs, fell under the judicial topic. We expect this trend to continue to increase in the 2012 and 2013 Myanmar Law Reports as more citizens become aware of, and exercise, their right to seek writs.20 20 If anything, we likely undercounted the amount of text in the corpus dealing with writs. Our segmentation technique required us to remove words not in the dictionary. Neither the term for ‘writ’ nor the terms for ‘certiorari’ (ahmu kaw), ‘prohibition’ (ta myin se), and ‘mandamus’ (anape) are found in the dictionary we used. Fortunately, ‘writ’ was segmented as sachundaw and amein, so we were able to recover the word in our data, but the other terms were removed completely. In future research, we plan to manually add these words to the dictionary. We suspect that language related to writs might then even make the top terms of the ‘judicial’ topic.

Understanding the Myanmar Supreme Court’s Docket 111 It is worth mentioning that we did not see any topics related to the trials of political dissidents. While few political prisoners appealed to the Supreme Court, several cases received widespread media attention, including Daw Aung San Suu Kyi’s challenge to her house arrest in late 2009 (Lwin 2011). These cases tend, however, not to be reported in the Myanmar Law Reports (Maung 2001). Even if any such cases were reported, we suspect there would not be enough of them to form a unique topic cluster. Rather, we suspect the topic model would classify text in those decisions as falling under the criminal law or the judicial topics.

CONCLUSIONS AND FUTURE RESEARCH

In this chapter, we applied NLP tools and topic models to better understand the Myanmar Supreme Court’s docket as reported in the 2007–11 Myanmar Law Reports. Set at five topics, this model produced topic clusters related to (1) judicial; (2) criminal; (3) domestic; (4) inheritance; and (5) contracts/commerce law. Of these, criminal law is by far the most prevalent topic on the Court’s docket. Inheritance cases were more frequent in 2007–08 but have since declined. The results also seem to reflect the Supreme Court’s power to issue writs as indicated by the rise in judicial topics. Due to time and budgetary constraints, our sample of decisions was limited to those posted on the Myanmar Supreme Court’s website, namely the 2007–11 Myanmar Law Reports. The Myanmar Law Reports have, however, been published yearly since 1989, and before then the Burma Law Reports had been published regularly since independence. That means there is potentially a much larger corpus with which we could work in future research. As indicated above, adding more cases to the topic model is relatively easy and should allow us to detect more nuanced topics in the corpus. Enabling scholars to conduct this type of research on Burmese texts is but one reason we urge other Burmese government agencies to follow the Supreme Court’s lead and post digitally readable copies of legal texts on their websites. Extending the range of years covered will also allow us to study trends in topics in the Myanmar Law Reports. With only five years studied, we feel less confident drawing any broad conclusions as to whether year-on-year changes in our sample represent more durable trends. It is entirely possible that most of the changes we observed could be the result of random variation in the types and number of cases appealed to the court each year. We simply lack the baseline research to know what to expect in the Court’s docket. With 10 to 20 years of judicial decisions, we would be able to see if, and how, major events, such as the 1962 and 1988 coups or the sacking of justices in 1988 and 1998, affected the Court’s docket. If we adapt the model to read both English and Burmese texts, we could even observe how the docket has changed since independence. We also hope this chapter stimulates more research by Burmese and foreign scholars into the use of Burmese legal language in the Myanmar Law Reports. Aside from Myint Zan (2004) and Maung (2001), we have not seen any scholarly work focused on the Myanmar Law Reports. We believe most of the top 10 terms in each topic cluster have some rational relationship with each other. As with English legal language, however, some words might contain connotations or meanings different from their everyday dictionary usage. Different justices might have different writing styles that could influence the results of the model to the extent that writing styles are associated with choice of words. With

112 Dominic J Nardi, Jr and Lwin Moe Burmese law departments increasingly interested in learning best practices in legal pedagogy, this type of research can also help professors teach Burmese case law to students. In addition to exploring the Supreme Court’s docket, this chapter also introduced an application of NLP technology to Burmese texts. Latent topic models are easily scalable, meaning that it would be just as easy – if not easier – to conduct this type of analysis for 10,000 cases as it was for 100 cases. The marginal cost of adding additional cases to the model is nearly zero. This feature of topic models will be important if researchers and foreign donors working in Myanmar choose to use this method to analyse corpora of Burmese texts. With political reforms proceeding apace, and more Burmese texts available online than ever before, NLP represents one solution to understanding large amounts of data.

REFERENCES AHRC (Asian Human Rights Commission) (2008) ‘Ne Win, Maung Maung and How to Drive a Legal System Crazy in Two Short Decades’ 7(3) Article 2 15. Allchin, Joseph (2011) ‘Burma Snatches Power from Judges’ Democratic Voice of Burma, 23 February, www.dvb.no. Amnesty International (2004) Myanmar: The Administration of Justice: Grave and Abiding Concerns. Blei, David and Lafferty, John (2009) ‘Topic Models’ in Ashok Srivastava and Mehran Sahami (eds), Text Mining: Classification, Clustering, and Applications (Boca Raton, FL, Chapman & Hall/CRC Press). Blei, David M, Ng, Andrew Y and Jordan, Michael I (2003) ‘Latent Dirichlet Allocation’ 3 Journal of Machine Learning Research 993. Chang, Jonathan, Boyd-Graber, Jordan, Gerrish, Sean, Wang, Chong and David M Blei (2009) ‘Reading Tea Leaves: How Humans Interpret Topic Models’ 22 Advances in Neural Information Processing Systems 288. Cheesman, Nick (2010) ‘Thin Rule of Law or Un-Rule of Law in Myanmar?’ 82(4) Pacific Affairs 597. —— ‘How an Authoritarian Regime in Burma Used Special Courts to Defeat Judicial Independence’ 45(4) Law & Society Review 801. Cheesman, Nick and Kyaw Min San, (2013) ‘Not Just Defending: Advocating for Law in Myanmar’, 31(3) Wisconsin Law Journal 702–733. Fink, Christina (2009) Living Silence in Burma: Surviving Under Military Rule (Bangkok, White Lotus). Furnivall, JS (1961) ‘Foreword’ in Maung Maung, Burma’s Constitution (The Hague, Martinus Nijhoff). Grimmer, Justin (2010) ‘A Bayesian Hierarchical Topic Model for Political Texts: Measuring Expressed Agendas in Senate Press Releases’ 18 Political Analysis 1. Grimmer, Justin and Stewart, Brandon M (2013) ‘Text as Data: The Promise and Pitfalls of Automatic Content Analysis Methods for Political Texts’ 21(3) Political Analysis 267. Grün, Bettina and Hornik, Kurt (2011) ‘Topicmodels: An R Package for Fitting Topic Models’ 40(13) Journal of Statistical Software 1. Harvey, Anna and Woodruff, Michael J (2013) ‘Confirmation Bias in the United States Supreme Court Judicial Database’ 29(2) Journal of Law, Economics, and Organization 414. Hluttaw (Pyithaungsu Hluttaw Rule of Law Committee) (2013) ‘Report of the Rule of Law and Tranquility Committee: Submitted to the First Session of Pyithu Hluttaw’, 31 July (Naypyitaw, Pyithu Hluttaw Rule of Law and Tranquility Committee).

Understanding the Myanmar Supreme Court’s Docket 113 Htay, Hla Hla and Murthy, Kavi Narayana (2008) ‘Myanmar Word Segmentation using Syllable Level Longest Matching’ in Proceedings of the 6th Workshop on Asian Language Resources (Hyderabad, India, Asian Federation of Natural Language Processing). Huxley, Andrew (1998) ‘The Last Fifty Years of Burmese Law: E Maung and Maung Maung’ LAWASIA 9. IBAHRI (International Bar Association Human Rights Institute) (2012) The Rule of Law in Myanmar: Challenges and Prospects, December, www.ibanet.org. Jordan, Michael I, Ghahramani, Zoubin, Jaakkola, Tommi S and Saul, Lawrence K (1999) ‘An Introduction to Variational Methods for Graphical Models’ 37(2) Machine Learning 183. Lwin, Michael (2011) ‘How Aung San Suu Kyi Can Free Burma from Fear’ 24(2) Columbia Journal of Asian Law 477. Lwin, Sandar (2012) ‘Hluttaw Speaker Promises Independence for Judiciary’, Myanmar Times, 24 September, www.mmtimes.com. Maung Maung (1975) General Knowledge Law (Yangon, Sitthidaw Press). —— (2008a) ‘Dr E Maung’ in Robert H Taylor (ed), Dr Maung Maung: Gentleman, Scholar, Patriot (Singapore, Institute of Southeast Asian Studies). —— (2008b) ‘The Search for Constitutionalism in Burma’ in Robert H Taylor (ed), Dr. Maung Maung: Gentleman, Scholar, Patriot (Singapore, Institute of Southeast Asian Studies). Maung, Win (2001) ‘Law Reporting in Burma: Lack of Transparency’ 8 Legal Issues on Burma Journal, April. McGuire, Kevin T and Vanberg, Georg (2005) ‘Mapping the Policies of the US Supreme Court: Data, Opinions, and Constitutional Law’, paper presented at the Annual Meeting of the American Political Science Association. Moe, Lwin (2008) Automatic Bitext Alignment for Southeast Asian Languages (Asian Institute of Technology, Bangkok, Masters thesis). Myint Zan (2000) ‘Judicial Independence in Burma: No March Backwards Toward the Past’ 1 Asian-Pacific Law and Policy Journal 5. —— (2004) ‘A Comparison of the First and Fiftieth Year of Independent Burma’s Law Reports’ 35 Victoria University of Wellington Law Review 385. —— (2008) ‘Legal Education in Burma since the mid-1960s’ 12 Journal of Burma Studies 63. Nardi, Dominic J (2012) ‘After Impeachment, a Balancing Act’ Myanmar Times, 1 October, www. mmtimes.com. NCUB (National Council of the Union of Burma) (2002) Burma Judicial Intervention, Statement to the 58th Session of the UNCHR, April, www.burmalibrary.org. New Light of Myanmar (NLM) (9 August 2013) ‘Chief Justice of the Union Stresses Important Role of Courts in Ensuring Rule of Law’, www.myanmar.com. Rice, Douglas (2012) ‘Measuring the Issue Content of Supreme Court Opinions through Probabilistic Topic Models’, paper presented at the 2012 Midwest Political Science Association Conference, Chicago, Illinois, 12–15 April. Rieffel, Lex (2010) The Economy of Burma/Myanmar on the Eve of the 2010 Elections, 241 US Institute for Peace Special Report, www.usip.org. Rosen-Zvi, Michal, Griths, Thomas, Steyvers, Mark and Smyth, Padhraic (2004) ‘The Author- Topic Model for Authors and Documents’, paper presented at the 20th Conference on Uncertainty in Artificial Intelligence, Banff, Canada. SEALang (2013) ‘SEALang Library Burmese Dictionary Resources’, http://sealang.net/burmese/. Spaeth, Harold H et al (2012) ‘Supreme Court Database Code Book’, scdb.wustl.edu/. Steinberg, David I (2010) Burma/Myanmar: What Everyone Needs to Know (Oxford, Oxford University Press). Stribley, Keith (2013) ‘TECKit Converters and DocCharConvert’, http://my.duniakitab.com/ ThanLwinSoft/ThanLwinSoft/Downloads/#teckit. Taylor, Robert H (2009) The State in Myanmar (Honolulu, HI, University of Hawaii Press).

114 Dominic J Nardi, Jr and Lwin Moe Turnell, Sean (2008) ‘Burma’s Economy 2008: Current Situation and Prospects for Reform’ Burma Economic Watch, May. UN GAOR (United Nations General Assembly Report of the International Civil Service Commission to the General Assembly) (2009) Situation of Human Rights in Myanmar, 64th Sess, UN Doc A/64/318. UNDP (United Nations Development Programme) (2012) Democratic Governance in Myanmar: Preliminary Situation Analysis, July. USIP (US Institute for Peace) (2013) USIP Burma/Myanmar Rule of Law Report, June. Venkateswaran, KS (1996) Article XIX: Burma beyond the Law (London, Article XIX). Wainwright, Martin J and Jordan, Michael I (2008) ‘Graphical Models, Exponential Families, and Variational Inference’ 1(1–2) Machine Learning 1.

LAWS Code of Criminal Procedure 1898 The Constitution of the Union of Burma 1947 The Constitution of the Socialist Republic of the Union of Burma 1974 The Constitution of the Republic of the Union of Burma 2008 Council of People’s Justices Law No 13/1974 (Revolutionary Council Law) Judiciary Law No 2/1988 (The State Law and Order Restoration Council Law) Judiciary Law No 20/2010 (The State Peace and Development Council Law) Judiciary Law No 5/2000 (The State Law and Order Restoration Council Law) State Law and Order Restoration Council Law Order No 5/1988 State Peace and Development Council Order No A.0694(I)/1998

CASES Chief Justice of the Union v Ministry of Home Affairs (2011) Constitutional Tribunal No 01/2011 U Htwe (a) A.E. Madari v U Tun Ohn & One (1948) BLR (SC) 541 U Htwe v U Tun Ohn & One (1948) BLR (SC) 541 U San Win v The Secretary, Ministry of Judicial Affairs (1957) BLR (SC) 84

7 What’s So Bad about Burma’s 2008 Constitution? A Guide for the Perplexed DAVID C WILLIAMS

I

N 2008 BURMA’S military government held a referendum on a constitutional draft proposed by its hand-picked constituent assembly. The government reported that the citizenry overwhelmingly supported the proposal but the whole process was widely perceived to be fraudulent and undemocratic (MTN, 11 March 2013). If the new Constitution has any legitimacy, it can only be substantive: despite its poisonous pedigree, the Constitution might actually be good for Burma on the merits. The opposite is true, however: the Constitution is bad for Burma in most of the ways that it could possibly be bad. Again, international opinion has condemned the substance of the Constitution but, in general, criticism has been limited to those provisions giving legislative seats and ministries to the military – the Tatmadaw. Indeed, those provisions are problematic but they are merely the tip of the iceberg. The international community is now pressuring the new civilian government for constitutional change but, beyond the concern about the military, the pressure tends to be unfocused: it demands that something should be done but it is less than specific about what (Mulqueeny 2013). This chapter therefore offers a detailed critique of the 2008 Constitution. It is a lawyer’s critique, in the sense that it provides a technical analysis of the Constitution’s provisions, considered as legally binding rules. But it is also a sociological critique: the problem with the Constitution is not merely that it is wrong in the abstract but that it is wrong for Burma in particular, given its social and political conditions. I emphasise this point because the government of Burma has insisted that because of its peculiar history, Burma needs the sort of ‘disciplined democracy’ created by the 2008 Constitution (IMNA, 27 October 2010). In fact, as I argue, the opposite is true. ‘Disciplined democracy’ is especially ill-suited to Burma because of its disposition to over-concentrate power. This analysis highlights what should be changed, not necessarily what can be changed, given current political conditions. As a result, the list of flaws is quite long and sweeping. In reality, much less reform will actually occur. But I choose this broader focus in order to address just how bad the Constitution is, because international attention has tended, in my view, to over-estimate the progress that has occurred. The international community should realise that even if meaningful but limited reforms occur, much more will need to be done before Burma can be considered a just and democratic country.

118 David C Williams In the interests of full disclosure, I should note that, at the time of writing, I am not an outside observer of the process of constitutional reform.1 The first part of this chapter offers a brief historical background to the 2008 Constitution, and considers the role of the military under the Constitution. It then analyses the power of the presidency, and examines the Constitution’s treatment of women and individual rights. The final section offers an overview of the Constitution’s failure to deal with the ethnic minorities’ drive for self-determination. BACKGROUND

The present constitutional problems have deep roots; they build on and reinforce historical tendencies. For that reason, they are all the more damaging and worrisome. Burma needs a Constitution that will correct the malformations that have led to decades of civil war and repression. It needs a dramatic departure from the ways of the past, not a mild amelioration. Before the British occupation, Burma had witnessed a long history of conflict between the majority ethnic group, usually called ‘Burmans’, and the ethnic minorities, who probably comprise between 30 and 40 per cent of the current population (Smith 1991). As a result, Burma went into independence after World War II with unhealed ethnic wounds; many of the minorities regarded the majority Burmans with great distrust (Lintner 1999: 66–67). Some of the minorities therefore desired independence for their traditional homelands. Others were willing to form a union with the Burman heartland, but only on condition that they receive constitutional guarantees of meaningful selfdetermination through federalism and power-sharing (Smith 2007: 50–51). Neither group received what they wanted. In 1947 the Karen went into armed resistance, and eventually all the other sizeable groups formed opposition armies as well (Smith 1991: 110–21). The roots of the civil war thus lie in the constitutional treatment of ethnic difference, and the tension will not end until those roots are pulled up. In 1962 the military dissolved the civilian government, seized power, and held it until 2010. As we will see, it still holds ultimate sway under the new Constitution, though it has permitted a civilian government to form (Callahan 2007: 7). Over the years, the name of the ruling junta changed: from the Union Revolutionary Council to the Burmese Socialist Programme Party in 1972 to the State Law and Order Restoration Council in 1988 to the State Peace and Development Council in 1997 (Callahan 2007: 12–25). The formal constitutional status of the regime also changed. From 1962 until 1974, the Tatmadaw ruled without a Constitution; from 1974 until 1988, it ruled with one; from 1988 until 2008, it ruled without a Constitution again; and from 2008 until the present, Burma has had a Constitution once more (see generally Charney 2009). Though the names may have changed, the style of government always remained the same, and it always exhibited precisely those problems that the new Constitution also exhibits. First, power was concentrated in the military. For most of the time, the 1 For over 10 years, I have advised the leaders of most of Burma’s ethnic resistance armies and many civil society groups on constitutional reform. I have advised members of the United States Senate Foreign Relations Committee, the United States State Department, and the United Nations. I have walked across the border into war zones, and I have testified before the Senate to warn against the early relaxation of sanctions. More recently, I have begun to advise reform-minded members of the government of Burma.

What’s So Bad about Burma’s 2008 Constitution? 119 Tatmadaw governed without any civilian government. During the BSPP period, the Socialist party nominally ruled but the party was, in fact, controlled by ex-generals who had retired so they could dominate the party (Charney 2009: 107–10). In addition, in those war-torn areas not controlled by the resistance armies, the Tatmadaw was, for all intents and purposes, the government. With this history, the risk of relapse to military rule is high, especially if the new Constitution facilitates it. Second, power was almost always concentrated in a single strongman. Authority patterns within the Tatmadaw were strongly hierarchical, as in most armies, and obedience was strongly emphasised. The perception was widespread that although the strongman might have influential advisors, he alone made every decision that he was inclined to make (Lintner 1999: 66–67). At the close of one strongman’s reign, his closest lieutenants vied for supremacy but eventually one would emerge victorious, returning Burma to its customary style of government (Lintner 1999: 175–81). Thus, at the head of the Tatmadaw, Ne Win seized power in 1962 and ruled until the late 1980s. Upon his retirement, several of his subordinates struggled for control until Than Shwe acquired dominance (Lintner 1999: 18). With the 2010 elections, Than Shwe receded from daily control, though he still looms over the future (Inside Burma 2011). The country is now witnessing another succession struggle, this time between the recently retired generals who are leading the civilian government and the generals still serving in the Tatmadaw (Callahan 2007: 7). With this history, the risk of reversion to strongman rule is high, especially if the new Constitution facilitates it. Third, power was concentrated in men. Except in very unusual armies, military rule almost always entails patriarchal rule because the military’s leadership is all male. Burma is no exception: all the top spots were held by men. They personally loathed Aung San Suu Kyi not only because she opposed them but because she was a powerful woman; in their personal correspondence they used unprintable misogynistic epithets to describe her (Charney 2009: 176). Notoriously, the Burmese delegation to the Beijing conference on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was all male (Women’s League of Burma 2008). Following the 2010 elections, the number of women in the Union and state legislatures is miniscule. Even in the ethnic resistance armies, the number of female leaders is very small. Only women’s groups, such as the Women’s League of Burma, are led primarily by women, and they are frequently marginalised (Women’s League of Burma 2008). With this history, the tradition of male dominance will continue, especially if the new Constitution does nothing to combat it. Fourth, the government of Burma has never extended much protection to individual rights. In war-torn areas, it has for some time been committing mass atrocities, which may amount to war crimes and crimes against humanity (Tisdall 2010). In recent years it has bombed civilian villages, sown mines, destroyed food supplies, burned churches, and used rape as an instrument of policy (Tisdall 2010). In central Burma, it has violently suppressed peaceful protests on many occasions, most famously the 8888 uprising and the Saffron Revolution (Charney 2009: 152–60, 196–97). Courts are generally powerless, marginally competent and not respected, and so are unable effectively to protect individual rights, even when they are so inclined (Ross 2012). With this history, the government may fail to respect its citizenry’s human rights, especially if the Constitution itself insufficiently protects them. Fifth, the government of Burma has never satisfied the ethnic minorities’ demands for self-determination within a federal union. Instead of addressing the demands through

120 David C Williams negotiation, the army resorted to force. The government traditionally claimed that selfdetermination demands were motivated by a drive for secession, and that only the army could keep the country together (see generally Charney 2009: 111–29). During some periods, the government tried to ‘Burmanise’ the minorities by limiting the use of minority languages and the practice of minority religions (Lintner 1999: 317–18). Some believe that the war on the Karen, in particular, was akin to genocide (Nawoyski 2013). The government and the higher ranks of the army were (and still are) dominated by Burmans, with only token representation of the minorities. Many Burman soldiers and administrators in ethnic minority areas are indifferent or outright hostile to those they rule. More recently, the government has opened up the minority areas to corporations, who extract natural resources with little regard for the effects on the local population, who receive little or none of the income (BBC News, 25 April 2013). With this history, the mistreatment of the ethnic minorities is likely to continue, especially if the Constitution does not strongly guarantee their self-determination. The 2008 Constitution represented an opportunity to correct all these damaging traditions and make a new start through dramatic change. The government did not take advantage of that opportunity. Instead, the Constitution makes only very limited progress on all these patterns. Even that limited progress is at risk, because when the constitutional changes are so small, and departure from the past so limited, the past may come back to reclaim the present.

THE ROLE OF THE MILITARY

The most obvious problem with the military’s role is that the Constitution gives the Tatmadaw a significant share of the civilian government: 25 per cent of every legislative body, as well as a number of ministries. Although the army’s control over the civilian government may be the most obvious problem, it is not the gravest. Far more significant is that the military is not subject to the civilian government and that in a state of emergency the military may dissolve the civilian government and rule alone. Notoriously, the commander-in-chief appoints 25 per cent of both houses of the Union legislature – the Amyotha Hluttaw and the Pyithu Hluttaw (Constitution ss 109(b) and 141(b)). He also appoints 25 per cent of the unicameral state and region legislatures (s 161(d)). These legislators are serving soldiers, under command discipline. They must vote the way that the commander-in-chief tells them. Because this arrangement gives the military partial control over the civilian government, it violates the general norm that the military must be subordinate to the civilian government. It also allows the military to block constitutional amendments, which can be adopted only with the support of 75 per cent of both houses of the legislature (s 436). Yet, this arrangement is not as troubling as might first appear. First, because of Burma’s strongman tradition, the legislature is very weak compared to the President and the commander-in-chief himself, so giving the army a share in the legislature is giving them relatively limited power. Second, it is important to remember that the military controls only a minority of the legislative seats. That minority is large enough to block constitutional amendments but not ordinary legislation – so if the other legislative members were freely and fairly elected, the Constitution might be meaningfully democratic. Third, the experience of other countries such as Indonesia suggests that, over time, the

What’s So Bad about Burma’s 2008 Constitution? 121 military might be willing to accept constitutional amendments giving them a smaller and smaller share of the legislature, culminating ultimately in a wholly civilian government. The military’s control over certain ministries is more troubling. The commander-inchief has the power to appoint the ministers for defence, home affairs and border affairs, and the state and region ministers for security and border affairs (ss 232(b)(iii) and 262(a)(ii)). Again, these ministers are serving soldiers, subject to military discipline. The army’s control over these ministries is more problematic than its share in the legislature for several reasons. First, the ministries are part of the executive department, and so are more powerful than the legislature. Second, the army controls the whole of these ministries, not just a fraction. Third, because these ministries are powerful, the Tatmadaw will be less likely to relinquish control over time. The army’s control of these ministries is even more troubling because of a much larger issue: the military is in no way subject to the civilian government. The Constitution specifically provides that the military is subject to no one, including the civilian government: (s 20(b)). Likewise, the Constitutional Tribunal may strike down actions of the legislative and executive departments but it has no power to review actions of the military (s 46). If the military’s domain were extremely restricted, the Tatmadaw’s independence might not be important, but in fact its jurisdiction is so broadly and vaguely defined that it is effectively limitless. The army also has the power to impose military discipline on the whole population by enlisting them into the defence of the state: it has ‘the right to administer for the participation of the entire people in Union security and defence’ (s 20(d)). The army also has quite extensive political powers. One of the Union’s ‘consistent objectives’ is ‘enabling the Defence Services to be able to participate in the national leadership role of the State’ (s 6(f)). Furthermore, the army ‘is mainly responsible for safeguarding the non-disintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty’ (s 20(c)). The army’s determination to retain these powers has deep roots. It justified its initial seizure of power by claiming that it, and it alone, could save the country from foreign invaders and internal rebels, at a time when those threats were real (see generally Charney 2009: 111–29). As time has gone on, however, the military’s paranoiac mindset has caused it to glimpse threats to national solidarity in any form of dissent or disagreement, as exemplified by the traditionally very large number of political prisoners. In other words, the extent of the army’s powers will depend on the interpretation of these quite vague provisions and on the identity of the interpreter. Under section 20(f), the military – not the courts or the legislature – ‘is mainly responsible for safeguarding the Constitution’. But if the military must safeguard the Constitution, it must, presumably, also be able to make final decisions about its meaning, including the extent of its own powers. In other words, the army has whatever powers it thinks it should have. At the top of this extremely powerful military hierarchy sits the commander-in-chief. Under the Constitution, he exercises total de jure control over the Tatmadaw, although de facto the present incumbent has not been wholly effective. If the commander-in-chief were chosen by the civilian authorities and could be removed by them, the army’s powers might be less worrisome. In fact, however, the commander-in-chief is chosen by the National Defence and Security Council. The Council has 11 members, and the army appoints six – more than half. In particular, the members include the commander-in-chief and the deputy commander-in-chief, as well as the ministers for defence, home affairs and border affairs, who are serving soldiers appointed by the commander-in-chief (s 201). Finally, it also

122 David C Williams includes the President and both vice-presidents, one of whom is always chosen by the military members of the national legislature, who are also under the command of the commander-in-chief (ss 60 and 201). In other words, a majority of the people empowered to choose the future commander-in-chief must follow the orders of the current commander-in-chief. In short, the primary problem with the army’s role is not that it has a presence in the legislature, but rather that it is a self-perpetuating, wholly independent fiefdom with unlimited powers. Ultimately, it can block any action by the civilian government that it does not like. Under certain circumstances it can even precipitate a coup d’etat and block the civilian government from taking any action at all. The relevant provisions are in some tension with each other. Some provide that the civilian government must consent to the coup, and others make no mention of a civilian role. In the event of a threat to national solidarity, the integrity of the Union, or the sovereignty of the nation, the President may declare a state of emergency, during which the military will assume all the functions of the civilian government (ss 417, 419). The duration of the state of emergency shall be one year minimum, and the President may extend it twice for six months each (ss 417 and 412(b)). Presumably, after this full two-year period, the military must surrender control back to the civilian government, but after ruling for so long the military may be quite reluctant to do so. Since the 2010 elections, the army has remained largely in the background except in the ethnic minority areas but no one knows how much rope the Tatmadaw will give the civilian government. Many are worried that if the reforms come too fast, they could provoke military intervention. It is possible that the army leadership is already so disunited that it would have difficulty acting against the civilian government in a concerted way. Certainly, the Thein Sein government is probably hoping that the army will eventually become so fragmented that it can be brought under control, even to the point of reducing its constitutional power. But for now, the point is that, by its own terms, the Constitution is a loaded gun lying around for the army to pick up, should it ever be able and want to do so.

THE PRESIDENCY

As with the role of the military, much criticism has been directed toward the Burmese Constitution’s provisions on the office of the presidency. As with the role of the military, that criticism has generally been appropriate but has missed the central problems. The most frequent criticism regarding the current Constitution’s treatment of the presidency is that it would disqualify Daw Aung San Suu Kyi from occupying the office (Fuller 2013). Indeed, the 2008 Constitution seems to have been written precisely to serve that purpose: section 59(f) requires that to qualify, the candidate ‘shall he himself, one of the parents, the spouse, one of their legitimate children or their spouses not owe allegiance to a foreign power, nor be subject of a foreign power or citizen of a foreign country’. Before his death, Aung San Suu Kyi’s husband was a subject of the crown of Great Britain, and her two sons still are. The provision thus disqualifies her, and it disqualifies no other likely presidential candidates. It is thus paradigmatic targeted legislation, an obvious attempt by the generals to rig the system so they remain in power. Yet, this provision is far from being the most problematic aspect of the office of the presidency. For one thing, the problem is temporary: it applies only to the present

What’s So Bad about Burma’s 2008 Constitution? 123 circumstances, so long as Aung San Suu Kyi – who is no longer young – remains a viable alternative. For another, even in the short term, the biggest problem is that the President is simply far too powerful. The central insight of constitutional design is that overconcentrated power tends to corrupt even personally virtuous people. Even if Aung San Suu Kyi could become President under the present arrangement, she would be at risk of eventually becoming a tyrant, just as Robert Mugabe did in Zimbabwe. Even under constitutions providing for weak and limited presidents, the chief executive often manages to amass a great deal of de facto power, violating the constitutional limits in the process. That risk is at its zenith in countries like Burma with strong traditions of over-powerful executives. Most people simply assume that one powerful man will be running the country with little input from other branches. As a result, Burma’s Constitution should place uncommonly clear and emphatic restrictions on the power of the President. The current Constitution does the opposite. Because of his powers, the President will be the most dominant element of government, other than the Tatmadaw. The Constitution formally recognises the idea that the President should not dominate the other branches, with the three branches of government separated ‘to the extent possible’ (s 11(a)). But this recognition is only lip service. The role of the President ‘takes precedence over all other persons’ in Myanmar (s 58). The idea of taking precedence is nowhere specifically defined, and indeed, it is unusual for a Constitution to specify who is more important than whom. But it clearly indicates the intention of the framers that the civilian authority pattern should be sharply hierarchical, leading up to one man – in keeping with the Burmese tradition that led to all the trouble in the first place. Dominance over the Courts Courts have traditionally been viewed as weak, incompetent and corrupt inside Burma (Lintner 1999). In order to undo this tradition, the Constitution would need to make them especially powerful. Instead, the Constitution gives the President power to dominate the courts. On the one hand, the courts have no power over the President, because section 215 stipulates that ‘The President shall not be answerable to . . . any Court for the exercise of the powers and functions of his office . . .’. Although this provision makes immune only acts done in accord with law, not illegal acts, the courts will not actually judge whether they are legal. Instead, the acts need only to be ‘purported’ to be legal – presumably by the President. The Constitutional Tribunal does have the power of ‘vetting whether the measures of the executive authorities of the Union, the Regions, the States, and the Self-Administered Areas are in conformity with the Constitution or not’ (s 322(c)). The provision, however, nowhere specifies that the President’s actions will be void if the Tribunal finds them unconstitutional. In light of the presidential immunity (s 215), this power of judicial review presumably gives the Tribunal the power only to decide whether the President’s actions are constitutional, not the power to order him to mend his ways. Such an arrangement is not uncommon in countries with over-powerful presidents such as Liberia. On the other hand, the President has very extensive powers over the courts. The President appoints not only the justices of the Supreme Court but also the chief justices of the High Courts of the states and regions.2 The chief ministers of the states and regions 2

See 2008 Constitution, ss 299(c)(i)–(ii) and 308(b)(i).

124 David C Williams appoint the associate justices of the High Courts of the states and regions but, because the President appoints the chief ministers, he ultimately has control over the appointment of the associate justices as well (s 308(b)(i)). The legislatures cannot reject his nominees except on the grounds that they do not meet the formal qualifications laid down by the Constitution itself, such as age, citizenship and experience.3 In other words, the legislature cannot reject a nominee on the grounds that he is incompetent, corrupt, a crony of the President or likely to act in unfair ways. In short, the President can stack the courts with his political allies, and no one can do anything about it. Because the lower courts are subordinate to these High Courts, the President can indirectly control them as well. The President also has substantial power to dismiss judges if they displease him. The President may bring impeachment charges against justices of the Supreme Court and of the High Courts of the States and Regions.4 The legislatures will hear and decide the cases, but the President will act as prosecutor, bringing and explaining the charge to the legislature and submitting evidence and witnesses.5 The justices may be impeached for a wide variety of very vaguely articulated actions. For example, ‘inefficient discharge of duties assigned by law’6 is a basis for impeachment, so judges may apparently be removed from office for sub-par job performance. ‘Misconduct’7 is another basis but that term is nowhere defined, so the President could decide that it means deciding a case in a way that he does not like. Finally, ‘breach of any provision of the Constitution’8 could be read to cover wrongly deciding a case, since the judiciary’s sworn duty is rightly to decide cases. Theoretically, the legislature could resist the President’s effort to impeach a judge but, as the next section will show, the President also has substantial power over the legislature. In other words, the threat of impeachment may be sufficient reason for courts to decide cases according to the pleasure of the President, rather than the rule of law. Although the Constitution does say that justices ‘must be free from party politics’,9 it contains some important omissions. Nowhere does it stipulate that the President may not seek to interfere with the normal administration of justice through bribery, threats or coercion, nor does it provide that the President may not take retribution against judges for cases decided against his wishes. Nowhere does the Constitution guarantee that the courts must be provided the resources needed to do their job, such as adequate space, research materials, salaries and so forth. The Supreme Court may submit a judiciary budget to the Union government for inclusion in the annual budget bill (s 297) but the Constitution nowhere specifies that the President must not alter the proposed judicial budget in his budget bill or that the legislature must pass a judicial budget. The President has less power over appointments to the Constitutional Tribunal. He appoints three of its members but the speakers of the two houses of the legislature also appoint three each (s 321). Interestingly, earlier drafts specified that the legislature could reject these nominees only for failure to meet the formal qualifications10 but that provision does not appear in the current Constitution, leaving open an interesting interpretive question as to whether the legislature may reject them for substantive reasons. 3 4 5 6 7 8 9 10

See 2008 Constitution, ss 299(d)(ii) and 308(b)(ii). See 2008 Constitution, ss 302(a) and 311(b). See 2008 Constitution, ss 302(b)(i) and 311(b)–(c)(ii). See 2008 Constitution, ss 302(a)(v) and 311(a)(v). See 2008 Constitution, ss 302(a)(iii) and 311(a)(v). See 2008 Constitution, ss 302(a)(ii) and 311(a)(ii). See 2008 Constitution, ss 300(a) and 309(a). See generally Burma Online/Myanmar Library 2008.

What’s So Bad about Burma’s 2008 Constitution? 125 On the other hand, the President does have some power over the Tribunal. To the extent that the President has power over the legislature, he will have power to influence the selection of nominees chosen by the speakers. The President also has the power to impeach members of the Constitutional Tribunal in the same manner that he can impeach justices of the Supreme Court (s 334). Again, the Constitution contains no guarantee that the Tribunal will have the resources necessary to do its job, nor does it prohibit the President from interfering in the Tribunal’s work. Perhaps more importantly, the term of Tribunal members is very short, only five years, and it coincides with the term of the Pyidaungsu Hluttaw, the national legislature (s 335). The Tribunal will likely have limited independence because every new President will have power to clean house, turn out all the old Tribunal members and appoint his own. If the Tribunal members wish to be reappointed, they will have to be careful to keep the political branches happy.

Dominance over the Legislature The Election Commission Similarly, the President has substantial power over the legislature. The voters choose the legislators but the President has significant power to unseat them. The President appoints all of the members of the Election Commission, without any legislative oversight (s 398(a)), and the Commission has the power to recall legislators (s 396). In most countries, recalling legislators requires a majority vote of all the affected constituents but the Burmese Constitution creates a very different process. One per cent of the voters may bring a charge against a legislator for various reasons, including ‘misbehaviour’, which is, again, undefined, or ‘inefficient discharge of duties’ (s 396(a)). The Election Commission then investigates and sits in judgment on the accused legislator (s 396(c)). If the Commission concludes that the legislator is guilty, then it removes him from office without further consultation with his constituents (s 396(c)). Presumably, it takes only a majority vote of the Commission members to remove a legislator – the people’s choice – from office, on the grounds that, in the Commission’s opinion, he has done a bad job. In other words, the President appoints those who prosecute, judge and condemn the legislators, and all they need to get started is a petition from 1 per cent of the voters. The Election Commission also has the power to supervise elections, designate constituencies, prescribe rules about elections and political parties, and resolve electoral disputes (s 399). Its electoral decisions are ‘final and conclusive’ (s 402). It will thus have great power over not only removing legislators but also electing them in the first place. The Constitution does not specify the term of office of the commissioners but presumably it is no longer than the term of the President who appointed them. As a result, every new President will have the ability to ‘clean house’ and appoint new, compliant commissioners. The Budget The President’s power over the budget also gives him influence over the legislature. The Constitution tasks the Financial Commission with developing a proposed budget (s 230).

126 David C Williams The President chairs the Financial Commission (s 229(a)(i)), and the other members are all ex officio posts held by virtue of an office given to them by the President, with the exception of the vice-presidents (s 229(a)(ii)–(vii)). The Union government then submits the budget to the Pyidaungsu Hluttaw for approval (s 221). The legislature may not refuse certain budget items, such as the salaries of members of Union-level organisations and Union debts (s 103(b)). With respect to other items, the legislature may only approve, refuse or curtail (s 103(d)). In other words, the legislature may remove items from the budget but not add them; there is no legislative spending. As a result, the President is the sole gateway into the federal budget: no organisation, no ministry, no private association and no NGO can receive any money from the government except through the President’s initiative. Even the legislature and the judiciary must petition the President for their salaries and expenses. In countries with no tradition of executive dominance or with presidents who are otherwise less powerful, this power over the budget might be less threatening; in Burma, it poses a grave danger. The Veto On the other hand, it should be noted that the President’s veto power is uncommonly weak. Although he may refuse to sign laws, returning them to the legislature with his comments (s 105(b)), the Pyidaungsu Hluttaw may override the veto merely by repassing the bill in the normal manner (s 106). No super-majority vote is required. The Method of Electing the President The unusual method of electing the President also gives the President power over legislators and prevents them from asserting much control over him. Under the Constitution, three groups each have the right to nominate one candidate for President: the civilian members of the lower house – the Pyithu Hluttaw; the civilian members of the upper house – the Amyotha Hluttaw; and the military members of both houses. The two houses then sit together as the Pyidaungsu Hluttaw and elect one of the three nominees to become President; the other two become vice-Presidents (s 60). The President then serves a fixed five-year term (s 61(a)). The office combines elements of presidentialism and parliamentarism, making for a chief executive that is stronger than either a conventional President or Prime Minister. Like Prime Ministers (and unlike most other Presidents) the President of Burma is chosen by the legislature. Unlike most other Presidents, therefore, he need never be subject to direct popular rejection; he need never go to the voters and ask for their approval of his policies. Instead, he needs only to keep the legislators happy. Like Prime Ministers, he has a tool to that end. What every legislator really wants is to become a minister or deputy minister because the remuneration, visibility and power are much greater. Those positions are the President’s gift. On the other hand, most Prime Ministers must struggle to keep the Parliament consistently happy because the MPs could topple them at virtually any time through a vote of no confidence. But like Presidents, and unlike Prime Ministers, the Burmese President may not be removed through a no-confidence vote. He serves a fixed term of five years. A conventional President’s power derives in no small measure from this fixed term; the legislature may do nothing, short of impeachment, to remove him from office. As a

What’s So Bad about Burma’s 2008 Constitution? 127 result, the Burmese President need only make sure that the legislators are happy once every five years. In between, he has much greater freedom of action. Although the Constitution provides that the President is ‘answerable’ to the legislature (s 202), the only method that it provides for removing the President is impeachment. This check is likely to prove ineffectual. Impeachment requires the support of two-thirds of both houses of the Union legislature – an extremely high proportion (s 71(c) and (d)). Recall that the President is elected by the Pyidaungsu Hluttaw as a whole, so he presumably has substantial support ab initio. Recall also that he has substantial power to punish MPs should the impeachment vote fail, so supporting impeachment carries considerable hazard for legislators. Executive Appointments In addition, the President has uncommonly extensive powers over appointments within the executive department, with no meaningful legislative oversight. The Pyidaungsu Hluttaw has the power to reject the President’s nominees for certain posts only if they fail to meet the formal constitutional qualifications, such as age and residency. These offices include Union ministers except the military appointees; most of the ex officio members of the Finance Commission; the Attorney General of the Union; and the Auditor-General of the Union.11 Similarly, the region or state Hluttaws may reject the President’s nominee for chief minister of the region or state only if he or she does not meet the formal constitutional qualifications (s 261(a) and (d)). The chief minister then appoints all the other ministers except the military appointees (s 262(a)). The state or region Hluttaw may reject these nominees only if they fail to meet the formal constitutional qualifications (s 262(c)). Effectively, the President has control over all these lesser state and region appointments because the chief minister is responsible to the President, and may be discharged by him.12 For other posts, the legislature has no oversight function at all; the President’s appointees automatically assume office. These offices include the heads of the bodies of civil services (art); diplomats; the members of the Election Commission; deputy Union ministers; the deputy Attorney General; the deputy Auditor-General; the Union Civil Services Board; and the chairperson and members of the Nay Pyi Daw Council.13 The only important office that is not in the President’s gift is that of the commander-in-chief, and as we have seen, the Tatmadaw – not the legislature – controls appointment to that post. Through this network of agents, the President has power to control events throughout the country. The appointments power also allows him to secure compliance through patronage – in effect, to buy support. By contrast, the legislature has no power to appoint anyone to effectuate its will. Immunity to the Legislative Will Furthermore, although the President must secure legislative consent to certain actions, the Constitution contains no general requirement that his actions must conform to legislative directions. On the one hand, the President must obtain the consent of the 11 12 13

See 2008 Constitution, ss 232(a) and (d); 229; 237(a)–(b); and 242(a)–(b) respectively. See 2008 Constitution, ss 262(a)(i) and 264(b) respectively. See 2008 Constitution, ss 209; 207(a); 398(a); 234(a); 239(a); 244(a); 246(a); and 285(b) respectively.

128 David C Williams Pyidaungsu Hluttaw in order to establish or sever diplomatic relations; to enter into certain international agreements; to continue an emergency executive order beyond 60 days; and to declare war or make peace.14 On the other hand, however, the Constitution nowhere states that the President is generally subject to the law. The Constitution instead specifies that the President is not answerable to any Hluttaw or court (see generally s 215). The Constitution nowhere requires the President to enforce the law laid down by the legislature, and it nowhere specifies that the President may not take action outside the law. The Constitution does not provide that the President has only those powers granted to him by the Constitution and no ‘inherent’ power to take all actions that he deems necessary. Instead, the Constitution grants the President a power so amorphous and broad as to know no bounds. Section 219 gives the Union government the power to preserve the ‘stability of the Union, community peace, and tranquillity and the prevalence of law and order’. As we have seen, Burmese governments have tended to construe such remits very flexibly. States of Emergency The President also has extraordinary powers to declare a state of emergency and to govern during its period. The Constitution distinguishes between three different states of emergency, which I will refer to here as Types I, II and II (see Ch XI). In every type, the President will enjoy increased power with respect to the Union and/or state and region legislatures. In Type I emergencies, the President can declare a state of emergency whenever a local administrative body feels that it cannot carry out its administrative functions (s 410). As all the local administrative bodies are subordinate to the President, they will presumably be compliant in asking for a state of emergency whenever the President desires one. In other words, the President may declare a state of emergency wholly without legislative consultation, either at the Union or local level. The state of emergency must end if the Union legislature does not approve it within 60 days (ss 212(b) and 415) but once a state of emergency is declared, legislatures have a tendency to support its continuation. During the pendency of the emergency, the President may exercise both the executive and legislative power of the region, state or self-administered area concerned (s 411). The President thus has a self-interested reason for declaring a state of emergency: it will allow him to assume increased powers. In Type II emergencies, the President can declare a state of emergency whenever a local administrative body submits that there is a danger to ‘the lives, shelter and property of the public in a Region or a state or a Union Territory or a Self-Administered Area’ (s 412(a)). Again, the President will have effective carte blanche to declare this sort of emergency, without legislative consultation, though, again, it will end within 60 days without legislative support (ss 212(b) and 415). In this sort of emergency, however, the President does not enjoy increased powers. Instead, he has the power to confer on the commander-in-chief ‘the executive powers and duties and the judicial powers and duties concerning community peace and tranquillity and prevalence of law and order’ (s 413(b)). 14

See 2008 Constitution, ss 206; 209(a); 212(b); and 213(c) respectively.

What’s So Bad about Burma’s 2008 Constitution? 129 In the earlier section on the Tatmadaw, I have already discussed the operation of Type III emergencies. If an emergency arises that might threaten national solidarity, territorial integrity or national sovereignty, the President may declare a nationwide state of emergency (s 417) and transfer all ‘legislative, executive, and judicial powers of the Union to the Commander-in-Chief’ (s 418(a)). The emergency will last for one year (s 417) but the President may renew it twice for six months each (s 421(b)). In other words, the President alone – one man – has the unilateral power to return Burma to military rule for up to two years, at which point the army may or may not agree to revert to civilian rule. The President has the future of the country in his untrammelled discretion.

GENDER AND RIGHTS

Gender With respect to gender, Burma has a long-standing tradition of excluding women from positions of power, notwithstanding the anomalous position of Daw Aung San Suu Kyi. In order to counteract this tradition, the Constitution would need to take proactive steps to advance the role of women. The Constitution does, in fact, contain quite broad prohibitions on discrimination against women. It forbids discrimination based on ‘sex’, and provides that women ‘shall be entitled to the same rights and salaries as that received by men in respect of similar work’ (ss 348 and 350). Section 351 prescribes that ‘Mothers, children, and expectant women shall enjoy equal rights as prescribed by law’. The civil service must not discriminate based, inter alia, on the basis of sex – though the provision goes on to provide that women may be excluded from positions that ‘are suitable for men only’, without specifying what those positions might be (s 352). The combination of a very broad prohibition on gender discrimination with specific prohibitions for particular contexts in which gender discrimination is likely to occur is felicitous. It is, in fact, one of the better aspects of the current Constitution. Individual rights provisions are, however, helpful only if they have an effective enforcement mechanism. At present, they do not, so the articles discussed above are at best aspirations or, at worse, empty and cynical promises made to be broken. Even if the Constitution’s anti-discrimination norms were fully enforced, however, they would not address the real underlying problem: women generally do not receive better treatment until they share in political power with men. The experience of other countries has clearly shown that women’s political power will not increase automatically, with the passage of time; the government must take proactive steps. Those proactive steps must involve reforming the structure of power, not merely promising individual rights and non-discrimination. The choice of electoral systems, the choice of presidentialism or parliamentarism or some combination, the devolution of power, and many other features have a tremendous impact on the extent of women’s power. In the process that culminated with the 2008 Constitution, there was no evidence that attention was given to developing a strategy to raise women’s empowerment. The results were predictable: women are now a tiny minority in the legislatures and ministries of Burma. In the Burma democracy movement, various women’s groups are currently demanding an electoral gender quota – reserving a certain percentage of the seats in the legislatures for

130 David C Williams women (see generally Williams 2009). Such quotas are now quite common worldwide, and, although controversial, they are often effective in raising the number of women in the legislature. Some in the democracy movement are even calling for a gender quota in every government body – administrative agencies, cabinets, courts and so forth (Cheney 2013). It is now very clear that the empowerment of women is strongly correlated with other social benefits such as improved literacy, health and prosperity. It is therefore far too late in history to adopt a Constitution without careful attention to its effects on women and without considering proactive steps to raise women’s political power. Individual Rights Chapter VIII of the Constitution contains a lengthy list of individual rights but it suffers from several deficiencies. First, many of the rights are highly qualified so the government can restrict them for a variety of public policy reasons (see ss 345–90). Many believe that ‘Asian values’ dictate that because Asians are ‘less individualistic’, their Constitutions should protect individual rights less aggressively than do Western Constitutions (see generally Markus et al 1991). Whether that thesis generally holds, however, it is surely at its least persuasive in a country with a history of governments viciously suppressing the rights of individuals. Again, to redirect that tradition, the Constitution should lean on the side of over-protecting, not under-protecting, rights. Second, many of the provisions are very vague and omit specific reference to some very important particular rights. The courts may interpret them to include the important constituent elements, but they may not. In new democracies, it is therefore generally important to list more specific rights. Third, most importantly, an individual right is worth only as much as its enforcement mechanism. At present, the Constitution assigns this role to the Supreme Court, which will not be an effective guarantor of individual rights. As a result, Chapter VII, no matter how lovely it might be, is likely to prove empty. Rather than exhaustively analysing Chapter VIII in its entirety, this chapter will confine itself to those collections of rights that the Burmese government has traditionally most systematically oppressed: religious and cultural rights, speech and associational rights, and criminal process rights. Again, to break the tradition of oppression in these particular areas, the Constitution must provide especially strong protections. The chapter will then discuss the Constitution’s treatment of rights enforcement. Religious and Cultural Rights The 2008 Constitution prohibits discrimination on the basis of religion or culture and discrimination in public employment on the basis of religion (ss 348 and 352). It also guarantees every citizen the liberty to ‘develop their language, literature, culture they cherish, religion they profess, and customs without prejudice . . .’ but only as long as these practices are not ‘contrary to the laws enacted for Union security, prevalence of law and order, community peace and tranquillity or public order and morality’ (s 354(d)). Moreover, it places specific limits on the freedom of religion, providing that religious freedom does not include any ‘economic, financial, political or other secular

What’s So Bad about Burma’s 2008 Constitution? 131 activities that may be associated with religious practice’, and that religious freedom ‘shall not debar the Union from enacting law for the purpose of public welfare and reform’ (s 360). Abuse of religion for political purposes is also forbidden, and cultural rights are restricted to those that ‘avoid any act detrimental to national solidarity’ (ss 364–65). The discrimination provisions are fairly strong and do not provide many loopholes for religious or cultural discrimination but the other provisions are problematic. They allow limits on rights of religious freedom and culture in any case where a law is passed to serve public order, tranquillity, morality or welfare. This qualification leaves the legislature free to ban any practice it considers disruptive, even if that practice is central to a particular religion. The regime could conclude that even a practice as innocuous as taking communion damages tranquillity because it detracts from social solidarity. There is nothing to indicate that a law that intrudes on religion might have to meet a higher standard in order to be constitutional. In addition, the specific provisions that place limits on religious rights could allow the government to restrict the ability of religious organisations to form non-profit corporations or to own property or to engage in any fundraising activities. The specific limit on cultural rights, which prohibits activity that is detrimental to national solidarity, could be used to ban any practice that the majority dislikes. These rights provisions appear to create religious and cultural rights but they also authorise government limitations on those rights in such broad and vague terms that almost nothing the government does would violate them. Speech and Associational Rights The Constitution protects speech and associational rights in a very short and summary provision. Section 354 provides: ‘Every citizen shall be at liberty . . . (a) to express and publish freely their convictions and opinions; (b) to assemble peacefully without arms and holding procession . . .’. The problem with this provision is two-fold. First, as with the religious rights considered above, it allows the rights to be limited for law and order, tranquillity or morality. Second, it is not specific enough about the activities that are protected. Commonly, constitutions protect more specific rights of speech and association, such as the right to own and operate a newspaper, radio or television station, or other forms of mass media; the right to receive and impart information; the right to engage in artistic creativity; the right to academic freedom and freedom of scientific inquiry; and the right to form a political party and to participate in the activities of that party, including recruiting members and campaigning for election of its candidates. Again, when the tradition has been the suppression of speech and associational rights, more specific language would help to counteract the weight of habit and expectations inherited from the past. Criminal Process Rights Some of the greatest areas of abuse of rights have been in the holding of political prisoners, the failure to guarantee a fair trial, and inhumane conditions of punishment. The Constitution prohibits ex post facto laws, double jeopardy and detention without a

132 David C Williams hearing, and it guarantees a right to a defence (ss 373–76). There are two problems with these provisions. First, they omit many of the specific rights commonly thought necessary to guarantee a fair trial. These include the right to a lawyer; the right to a fair and impartial trial; the right to remain silent; the right not to be coerced into confession; the right to be told the charges an accused faces; the right to a public trial; the right to communicate with family and lawyers; and the right to humane conditions of detention, including medical care and religious worship. Second, although section 376 prohibits detention without a hearing, it contains a very vague and broad exception for ‘matters on precautionary measures taken for the security of the Union or prevalence of law and order, peace and tranquillity in accord with the law in the interest of the public, or the matters permitted according to an existing law’. Again, the courts might interpret this language narrowly but if they interpret it broadly it would essentially allow the government to indefinitely detain anyone without a hearing whenever it so chooses – a practice sadly familiar to the people of Burma over many decades. Enforcement Mechanisms The Constitution clearly contemplates that the courts shall be the primary protectors of the individual rights enshrined in Chapter VIII. The Constitution seems to give some authority to the Supreme Court and some to the Constitutional Tribunal (see generally ss 293–336). On the one hand, section 377 assigns the Supreme Court the job of vindicating individual rights: ‘In order to obtain a right given by this Chapter [VIII], application shall be made in accord with the stipulations, to the Supreme Court of the Union’. On the other hand, section 323 provides that ordinary courts may refer constitutional questions to the Constitutional Tribunal. Once the Tribunal has decided, its resolution ‘shall be applied to all cases,’ and ‘shall be final and conclusive’ (ss 323–24). It is thus not entirely clear when one goes to the Supreme Court and when one goes to the Tribunal. One possible reconciliation is that the Tribunal decides whether statutes violate the Constitution, and its judgments bind all other courts, which can thereafter strike down laws based on the Tribunal’s holding. Like all other courts, the Supreme Court can strike down statutes based on the Tribunal’s precedents, but it can also enjoin administrative acts and policies that invade individual rights. Whatever the relationship between the two courts, however, it is abundantly clear that the Constitution looks to the courts in general for the protection of individual rights. Reliance on the courts faces two difficulties. First, the courts are neither powerful nor independent enough to enforce rights in the face of pressure. The President has substantial power over the way that courts do their work. In addition, the Pyidaungsu Hluttaw has shown that it too can dominate the courts. When the Constitutional Tribunal recently decided a case in a way that the legislature did not like, the Hluttaw promptly impeached the whole bench (s 302; Htoo 2012). Because the courts enjoy very little respect, they cannot depend on popular support for their rulings. In addition, it will be quite difficult for many people to go to court in order to vindicate their rights unless they have some proactive help from the government or NGOs. Many parts of Burma, especially in the ethnic areas, are roadless. Section 377, which

What’s So Bad about Burma’s 2008 Constitution? 133 gives the Supreme Court the power to vindicate rights, might also mean that only the Supreme Court may vindicate rights. In that case, many claimants might have to travel very far – all the way to Naypyidaw – in order to be heard. For many, law courts are forbidding, and the language of the law impenetrable. Finally, despite all the recent good work of NGOs to educate Burmese citizens, most still do not know what their rights are. As with gender, there is no evidence that the drafters of the Constitution paid any attention to the need to take proactive steps to enable people to protect their rights. Other countries have developed a variety of modalities to that end: public education programmes, ombudsmen, civil service commissions, publicly supported legal representation and so forth (see generally Williams 2009). It is not the point of this chapter to try to determine which methods would work best in Burma. The point instead is that the current Constitution does nothing to address this crying need. THE ETHNIC MINORITIES

Ethnic conflict lies at the root of Burma’s troubled history. The military first seized power because it felt the civilian government could not deal adequately with the civil war. At long last, the Tatmadaw has relinquished power but the Constitution gives it power to seize control again if necessary – in the army’s view – to preserve national solidarity. Burma will never know peace unless some accommodation can be made with the ethnic resistance forces. At present, the Union government and the ethnic armies are in serious negotiations regarding constitutional change, and the government has indicated that it is prepared to discuss those issues most important to the minorities. This section sketches the main demands of the ethnic leaders. It is unclear how far the Union government will accede to these demands but unless it goes some distance, Burma will remain unstable. (Again, in the interests of full disclosure, I should reveal that I have helped ethnic leaders formulate some of these demands.) Burma’s ethnic minorities are concentrated in the seven titular states ringing the central Burma basin, each named for its dominant ethnic group. The minorities have long calculated that devolution to these states will maximise their self-determination. The Constitution does make gestures toward decentralisation of power. It creates state governments and assigns them powers that are constitutionally guaranteed against overreaching by the Union government (ss 49–56). In fact, however, the Constitution ensures that these governments will be weak and dominated by the centre, as will now be explained.

Elected Governors Under the Constitution the President will dominate the state and region governments because he has power both to appoint and remove the chief ministers, who appoint all the other ministers, except the military designees. For all intents and purposes, the chief minister is merely the President’s agent, in the style of a French prefect, not the agent of the people or the state government. Given Burma’s strongly hierarchical patterns of authority, the chief minister will be the most dominant element of the state government, giving the Union President very strong control over the states. For that reason, many of

134 David C Williams the ethnic minorities are demanding the Constitution be amended to provide for popularly elected state governors. State Constitutions For a group of people to have meaningful self-determination, they must be able to choose their own form of government. Unless they are allowed to do so, the people of Burma’s states will always feel that it was imposed on them. As the field of constitutional design has revealed, different states require different forms of government in order to flourish, because of underlying social, political and economic conditions. Chin State and Shan State, for example, are extremely different. The former is small, poor, undeveloped and homogeneous. The latter is large, more developed and nearly as ethnically complicated as Burma itself. They therefore need quite different forms of government. Designing a constitution to produce the best results for a particular group of people is complex. If the Constitution is mal-designed, it could lead to vicious politics and even civil war within the state. One size does not fit all. The Constitution fails in both these respects. First, it imposes a form of government on the states, rather than allowing the people of the states to choose their own form of government. Second, it imposes the same form of government on every single one of Burma’s states, despite their differences.15 For that reason, many of the ethnic minorities are calling for the Constitution to be amended to allow the people of each state to develop their own Constitution. Traditionally, Burma’s leaders have claimed that state Constitutions are merely a gateway to secession – the disintegration of the national solidarity, sovereignty and unity over which the Tatmadaw retains control. It remains to be seen, therefore, whether there is any room for compromise on this subject. Merely changing the name might make the prospect more palatable. The states might be allowed to develop Basic Laws or Governing Documents, rather than constitutions. As the next section will elaborate, in Burma, certain words set off alarm bells, so the focus should be on the substance, not the labels. Division of Powers For decades the ethnic minorities have been calling for federalism – a constitutionally guaranteed assignment of power over certain subject matters to the state governments (Smith 2007: 50–51). For decades the military government resisted on the grounds that federalism was tantamount to the break-up of the Union. A new day has now dawned, however. The 2008 Constitution actually creates state governments and guarantees them some (albeit highly limited) powers. In other words, the point has been conceded. Burma has a federal system, although government leaders still use the term only rarely. The question is no longer whether the states should hold legally entrenched powers but how broad they should be, and over what subject matter. Because that question is merely one of degree, rather than of opposing principles, it is possible that the government and the resistance armies might be able to reach a compromise acceptable to all. 15

See generally 2008 Constitution, ss 161–95; and ss 247–74.

What’s So Bad about Burma’s 2008 Constitution? 135 Differences of degree matter, of course, and at present the state governments have only extremely limited powers, which do not include those powers most important to the minorities. Schedule One of the Constitution lists the Union legislative powers, and Schedule Two lists the state and region legislative powers. Both lists are quite long and heterogeneous, and it is not possible to summarise them to demonstrate how limited are the states’ powers, so examples must suffice. The Union has power over the ‘Economy’ (s 96, Sch One(a)) and the states have power only over ‘Economic matters undertaken in the . . . State in accord with law enacted by the Union’ (s 188, Sch Two(a)), emphasis added). The Union has power over petroleum, natural gas, electricity, minerals and mines (s 96, Sch One(a)–(c)). By contrast the states’ analogous powers are limited to medium- and small-scale electric power production (although only so far as it has ‘no link with national power grid’); salt; and village firewood.16 Again, the Union’s revenue base will be much larger, including income tax; the all-important commercial tax; customs duties; domestic and foreign loans; and foreign aid.17 By contrast, the states will derive revenue only from land taxes, which are not worth much, excise duties and ‘Municipal taxes such as taxes on buildings and lands, water, street lightings and wheels’.18 For a final, focused example, consider that the Constitution gives the Union power over ‘Gems’ (for example, the very valuable jade industry) but the states must rest content with power over ‘Cutting and polishing of gemstones within the Region or State’.19 From the perspective of the ethnic minorities, however, the biggest problem is not that the states have only limited powers but that they do not include the most important ones. For the minorities, two collections of powers are central. First, they believe that the Burmans, who control the central government, are culturally different from the minorities with respect to certain areas of human life. They accordingly want the state governments to have control over those areas. These areas include religion, because many of the minorities are Christian, Muslim or traditional; language, because many of the minorities speak their own languages, sometimes along with Burmese but sometimes to its exclusion; culture in general; and education, up to the university level, so that the minorities can teach their own children about their own traditions. In the past the military government has sometimes tried to ‘Burmanise’ the minorities by, for example, burning down churches and forbidding the speaking of minority languages (Charney 2009: 93–107). The minorities have more trust in the new civilian government than they did in the military but they still believe that they have cause to fear Burman chauvinism at the centre. For that reason, they would like the states to have exclusive jurisdiction over these areas of life. Because no money is at stake, the government might agree to some kind of compromise arrangement. Second, the minorities desire some kind of resource-sharing and revenue-sharing arrangement. In the short run, the most lucrative and fastest-growing element of Burma’s economy will be resource extraction schemes, many of them foreign financed. The minorities report that development schemes have exploded in their areas but the money has all gone to Naypyidaw and the government’s cronies, while minorities have had to suffer environmental degradation. They also report that developers have seized the land 16 17 18 19

See 2008 Constitution, s 188, Sch. Two(4)(a); and s 188, Sch Two(4)(a) and (d) respectively. See 2008 Constitution, s 188, sch Two(3)(h); (i); (k); (c); (t). See 2008 Constitution, s 188, Sch Two(1)(c)-(e). See 2008 Constitution, s 96, sch One(6)(d) and s 188, sch Two(4)(c) respectively.

136 David C Williams of minorities, much of it owned by indigenous title. In some places, especially Karen State, many believe that they will witness total despoliation within a few years. Accordingly, the minorities want more control over these development projects. They want to have some influence over whether a development scheme is approved, and if so, the conditions under which it will proceed, including assurances that some of the jobs will go to local people; that the project will cause the least possible environmental damage; and that social disruption will be minimised. They also want to be guaranteed a share of the proceeds from these projects – taxes, in-kind resources (such as electricity), and revenues from the sale of natural resources. They have come to realise that it takes money to run a state government and to provide for the well-being of their people, and they want a fair share of the wealth that is being drained out of their areas. Many different sorts of arrangements are possible to give the minorities more control, although the details are beyond the scope of this chapter. Increasingly, developing countries have turned to revenue sharing and resource sharing as a way to manage regional or ethnic tensions, and so many models are available, including those developed by other countries in ASEAN. Indeed, the minorities’ demands on this score are in tune with recent transnational tendencies but it is entirely unclear how far the government will go to accommodate them, because a great deal of money is at stake. Upper House of the Union Legislature Traditionally, Burma’s ethnic minorities have called for the upper house of the legislature to be structured in such a way that the minorities will dominate it. The ethnic majority would therefore control one house, the minorities would dominate the other, and neither could do anything without the cooperation of the other. Because the houses might disagree, the legislature might sometimes find it difficult to pass laws but this system would encourage harmony and cooperation, because each house would be dependent on the other for getting what it wants. Under the 2008 Constitution, the Amyotha Hluttaw will not work that way for two reasons. First, it is structured in such a way that the minorities will not actually control a majority of the representatives. Second, when the two houses disagree, the lower house – the Pyithu Hluttaw – will prevail. Under the 2008 Constitution, each of the regions and states elect the same number of representatives – 12 – to the Amyotha Hluttaw (s 141(a)). As a result, the less populous states and regions have more per capita power because, although the voters are fewer, they control the same number of representatives. As the ethnic minorities are generally concentrated in the less populous states, this arrangement gives them more than proportional power. Indeed, this disproportionality has always been the purpose of the upper house – to give the minorities a place where they might be able effectively to assert their interests. Although the minorities have super-proportional power in the Amyotha Hluttaw, they will still be a minority there. It is generally thought that the minorities are the majority in most of the seven states but the Burmans are a substantial majority in all the seven regions. Even if the minorities elect all the representatives from the states, they will control at most half of the elected seats. But only 75 per cent of the seats in the upper house are elected; the remaining 25 per cent are appointed by the commander-in-

What’s So Bad about Burma’s 2008 Constitution? 137 chief. As a result, the ethnic minorities will control at most half of 75 per cent of the seats in the upper house – that is, 37.5 per cent. Because there are substantial Burman populations in the minority states, the minorities will not, in fact, control even that much. To give minorities greater power in the Amyotha Hluttaw, therefore, the number of representatives from the seven regions would have to come down. For the number of representatives from the seven regions to come down, presumably some of the regions would have to merge to form larger but fewer electoral constituencies. At the extreme, all seven regions could constitute one electoral district, electing the same number of representatives as tiny Chin State or Karenni State. It is questionable whether the government negotiators would even be willing to consider this option but at least some of the minority leaders are quite committed to it. Although the seven regions would have to merge into larger constituencies for electoral purposes, they could very well remain seven different regions for legislative and administrative purposes, that is, they could retain the same powers of self-government they enjoy now. This might make the idea of electoral merger more acceptable to the government’s negotiators. Even if the minorities control the Amyotha Hluttaw, that power will help them little if the Pyithu Hluttaw – which will presumably be controlled by the ethnic majority – can override the upper house. Yet in effect, the 2008 Constitution dictates exactly that result. After one house passes a bill, it is then forwarded to the other house. If the other house approves the bill, it becomes law (s 95(a)). But if the other house refuses to pass the bill, then the two houses come together in the Pyidaungsu Hluttaw, which decides whether to pass the bill.20 Similarly, if one house decides to amend or annul an agency regulation, the matter is then forwarded to the other house. If the other house agrees, then the amendment or annulment becomes law. But if the other house disagrees, then the two houses come together in the Pyidaungsu Hluttaw, which decides whether to amend or annul the regulation (ss 97(d); 137(c); and 157(c)). Ultimately, then, the Pyidaungsu Hluttaw, sitting as a whole, will decide all contentious issues. But in the Pyidaungsu Hluttaw, the Pyithu Hluttaw members will substantially outnumber the Amyotha Hluttaw members simply because there are more of them. The Constitution provides that the lower house will have a maximum of 440 members but the upper house will have only a maximum of 224 members (ss 109 and 141). As a result, whenever the two houses disagree, the lower house wins. Instead, many of the minorities are calling for true bicameral voting: the Pyidaungsu Hluttaw would be able to take action only if both houses independently agree. This arrangement would surely create some inefficiency but it would also encourage the two branches to work together. CONCLUSION

The 2008 Constitution was written by a group of men who were accustomed to an extreme concentration of power in very few hands. In the Constitution they moved away from that tradition by a small step, spreading power only as little as necessary to win international support. They seem to have succeeded. In the years since the 2010 election 20

See 2008 Constitution, ss 95(b), 139(c) and 159(c).

138 David C Williams they have largely escaped their old pariah status. Meanwhile, Thein Sein has made it clear that reform will proceed only in a ‘top down’ fashion, as opposed to the ‘bottom up’ protests of 1988 that ultimately led to the legislative victory of Aug San Suu Kyi’s National League for Democracy in 1990. To the extent that the international community has pushed for continuing constitutional reform, it has focused on reducing the power of the military. It would indeed be beneficial to send the army back to the barracks for good but this focus is misplaced, for two reasons. First, military reform will probably happen late in the game, not right away, because of the risk of a coup should civilian authorities ever move seriously against the Tatmadaw’s perks. Accordingly, attention should now be focused on the things that could, perhaps, be changed without provoking such a response. Second, the extreme focus on the army has deflected attention – and perhaps allowed the civilian government to deflect attention – from the equally worrisome way that the Constitution structures the role of the President, of men, of individual rights and of the ethnic minorities. Although the 2008 Constitution continues the tradition of overly concentrated power, the recent process of constitutional negotiation with the ethnic minorities has also parted from tradition in new and somewhat hopeful ways. The fact that the government is negotiating for constitutional change at all is quite a departure in itself. The military government in the past rejected negotiating in principle, agreeing only to ceasefires from time to time. The civilian government has also agreed to negotiate with umbrella groups of resistance armies, such as the United Nationalities Federal Council, who can therefore parlay from a place of strength. In the past, the military government would negotiate only with each army separately, using the divide-and-conquer tactics that the British taught them so well. Thein Sein has even begun to intimate that federalism might be a good system for Burma. In other words, there is reason for cautious hope that some of the profound deformations in the current Constitution might be made right. It has been dark in Burma for so long. The 2008 Constitution is at best a murky smear of light on the horizon. It might soon be extinguished by a military coup or civilian retrenchment, aided by international complacency and indifference. Or it might become the true dawn of a new day in the not-so-distant future. To help that end, the international community must illumine the whole document, with all of its technicalities, rather than merely those provisions that are easily understood in the space of a twominute sound bite. There is still a very long way to go, and the path to a truly just and democratic Burma is still dim. There will be time for applause after the sun comes up, when the Constitution has been substantially rewritten. REFERENCES BBC News (25 April 2013) ‘Burma: Monywa Mine Protest Leads to Clashes with Police’ BBC News Asia, www.bbc.co.uk/news/world-asia-22292583. Callahan, MP (2007) ‘Political Authority in Burma’s Ethnic Minority States: Devolution, Occupation, and Coexistence’ 36 East-West Center Washington 7. Charney, MW (2009) A History of Modern Burma (Cambridge, Cambridge University Press). Cheney, C (2013) World Politics Review, ‘Women’s Low Representation Overlooked in Myanmar Reforms’ Trend Lines, 21 February, www.worldpoliticsreview.com/trend-lines/12736/women-slow-representation-overlooked-in-myanmar-reforms.

What’s So Bad about Burma’s 2008 Constitution? 139 Fuller, T (2013) ‘Advocate in Myanmar Hopes to Seek Presidency’ The New York Times, 6 June www.nytimes.com/2013/06/07/world/asia/daw-aung-san-su-kyi-wants-to-be-myanmarspresident.html?_r=0. Htoo, A (2012) ‘A Constitutional Crisis in Burma?’ Democratic Voice of Burma, 7 September, www.dvb.no/analysis/a-constitutional-crisis-in-burma/23662. Independent Mon News Agency (IMNA) (27 October 2010), ‘What is Meant by Disciplined Democracy?’, http://monnews.org/2010/10/27/what-is-meant-by-disciplined-democracy/. Inside Burma (2011) ‘Than Shwe: Myanmar’s Secretive Dictator’ BurmaNet News, 30 March, www. burmanet.org/news/2011/03/30agence-france-presse-than-shwe-myanmars-secretive-dictator/. Lintner, B (1999) Burma in Revolt: Opium and Insurgency since 1948 (Thailand, Silkworm Books). Markus, HR et al (1991) ‘Culture and the Self: Implication for Cognition, Emotion, and Motivation’ 98 Psychological Review 224. Mulqueeny, K (2013) ‘Myanmar’s Future: Poised for Real Democratic Transition?’ World Policy Blog, Myanmar, 11 July, www.worldpolicy.org/blog/2013/07/11/myanmar’s-future-poised-realdemocratic-transition. Myanmar Today News (MTN) (11 March 2013) ‘2008 Constitution is not a Genuine Union, it is a Fake’, www.myanmartodaynews.com/2013/03/11/2008-constitution-is-not-a-genuine-union-itis-a-fake-union/. Nawoyski, K (2013) ‘Genocide Emergency: Kachin State’ Genocide Watch, 4 April, www. genocidewatch.org/myanmar.html. Online Burma/Myanmar Library (nd) ‘National and State Constitutions, Draft Constitutions, Amendments and Announcements (Texts)’ Burma Library, www.burmalibrary.org/show. php?cat=1140. Ross, J (2012) ‘Burma’s Push for Freedom is Held Back by its Institutionally Corrupt Court’ The Guardian, 20 March, www.theguardian.com/commentisfree/libertycentral/2012/mar/20/burmajudicial-system. Smith, M (1991) Burma: Insurgency and the Politics of Ethnicity (New York, White Lotus Co Ltd). —— (2007) ‘State of Strife: The Dynamics of Ethnic Conflict in Burma’ 36 East-West Center Washington Policy Studies. Tisdall, S (2010) ‘UK Backs Move to Refer Burma’s Leaders to War Crimes Tribunal’ The Guardian, 25 March, www.theguardian.com/world/2010/mar/25/uk-backs-case-against-burma. Williams, S (2009) Constituting Equality: Gender Equality and Comparative Constitutional Law (Cambridge, Cambridge University Press). Women’s League of Burma (2008) ‘Reflection on CEDAW 2008’, Thailand, January 1 2009, www. womenofburma.org/Report/CEDAW%20reflection%20report%202008.pdf.

8 The Common Law and Constitutional Writs: Prospects for Accountability in Myanmar MELISSA CROUCH*

I

N ANY CONTEXT, administrative law is a site of potential contestation between the executive and judiciary. Granting individuals the right to seek judicial review of the decisions of administrative decision makers is rarely without tension or controversy. This area of law therefore offers a useful perspective from which to consider the dynamics of the relations between the executive branch of government and the judiciary in Myanmar. Despite the fact Myanmar has begun a transition from military rule to a civilian-military-led government, the judiciary is still widely perceived to lack independence. Yet the new 2008 Constitution, which came into force in January 2011, has an important feature that has the potential to contribute to a culture of government accountability – it reintroduces the Supreme Court’s jurisdiction to hear applications for the constitutional writs. This development has taken place after 38 years of the absence of the constitutional writs, and at least 18 years of explicit denial of any notion of constitutionalism itself. Due to the large number of applications for the constitutional writs that have already been lodged, the procedure has quickly become a key focus of the Union Attorney General’s Office, as well as a source of debate in the Union Parliament. I consider this phenomenon from two angles. First, what do the writs cases heard by the Supreme Court tell us about the ability of individuals to seek administrative review of government decisions in Myanmar? Second, what do parliamentary debates over the writs procedures indicate about the role of the court and its relations with the executive? In order to address these questions, I trace the development of administrative law in Myanmar during the period of parliamentary democracy (1948–62) and then contrast it with the reintroduction of the constitutional writs by the quasi-civilian government (2011–present). In my analysis of how the judiciary dealt with constitutional writ cases brought under the 1947 Constitution, I identify three key themes: the acknowledgment

* The field research for this project was funded by the Law Faculty, the National University of Singapore, while I was a Postdoctoral Fellow from 2012 to 2013. I would like to thank Daw Nang for her assistance with this project. I am grateful to the Institutum Iurisprudentiae Academia Sinica, Taiwan, for the opportunity to present an earlier version of this chapter at the Comparative Administrative Law conference in July 2013. I would also like to thank Nick Cheesman and Swati Jhaveri for their comments on an earlier version of this chapter. All errors are my own. The Writs Procedure Law was passed in 2014 as this chapter was in press.

142 Melissa Crouch of Burma’s common law foundations; an understanding of the writs as a check on decisions of the lower courts and agencies that exercise ‘quasi-judicial power’; and the use of the writs to protect individual rights. I then briefly outline the bleak period from 1972 to 2010, when the writs were no longer guaranteed in the Constitution and, given the introduction of a socialist system, there was arguably no right to the writs at common law. In turning to the post-2011 environment, I contrast the high number of applications that have been lodged in the Supreme Court with the six cases that were reported in the Myanmar Law Reports in 2011. Despite the structural lack of judicial independence, the writs have contributed to a renewed sense of confidence for lawyers to challenge lower court decisions. Yet I show that the limited court reporting suggests a discrepancy between the handful of reported cases per year, in contrast to the hundreds of unreported, and possibly more politically sensitive, cases. I also canvass the heated parliamentary debate since 2011 over the writs procedure and consider the implications of the proposal that attempts to redefine the writs in ‘Myanmar style’, as distinct from their ‘common law’ heritage. The response of the Parliament suggests that in the future the writs may be narrowly defined and depart from their common law origins. This potentially casts doubt on the writs as a robust mechanism for review of government decisions, and therefore mirrors the broader constraints on constitutional law in Myanmar. POST-INDEPENDENCE JUDICIAL ACTIVISM AND THE WRITS

The way in which the common law is understood in Myanmar today is, in part, shaped by the era of parliamentary democracy. I therefore begin with an analysis of the constitutional writs during this period in order to contrast it with the post-2011 environment. Burma inherited the British common law system of administrative law with its emphasis on the prerogative writs. There were no reported cases concerning the writs under colonial rule.1 After Burma gained independence from the British, the 1947 Constitution provided for ‘rights of constitutional remedies’ (s 25(2)): Without prejudice to the powers that may be vested in this behalf in other Courts, the Supreme Court shall have power to issue directions in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari appropriate to the rights guaranteed in this Chapter.

This constitutional provision clearly established the authority of the Supreme Court, the highest court in the judicial hierarchy, to issue such writs.2 The Supreme Court was the final court of appeal in such cases, because Burma was one of only two British colonies that did not join the British Commonwealth upon independence3 and therefore appeals no longer went to the Privy Council after 1948. The enforcement of the constitutional writs was only void in exceptional circumstances, such as threats to public safety due to invasion or a state of emergency.4 1 Maung Maung (1961: 101) claimed that the High Court of Burma had jurisdiction to receive applications for the writs ‘under the common law’. The only legislative recognition of the writs during the colonial period was the right to seek the writ of habeas corpus under s 491 of the Criminal Procedure Code. 2 The Constitutions of some other former British colonies also have similar provisions, such as s 32 of the Indian Constitution. Many other Constitutions at least recognise the writ of habeas corpus. 3 The other was Adan, which gained independence in 1961, although since 1971 it has been part of Yemen (this is excluding the British protectorates and mandates that did not become part of the Commonwealth). 4 Art 25(3) reads: ‘The right to enforce these remedies shall not be suspended unless, in times of war, invasion, rebellion, insurrection or grave emergency, the public safety may so require’.

The Common Law and Constitutional Writs 143 The 1947 Constitution also allowed for other courts, such as the High Court, 5 to hear writs applications under its jurisdiction if it was provided for by law. In 1949, however, the High Court declared that it did not have the power to issue prerogative writs, and so its jurisdiction was limited to the power to issue the writ of habeas corpus in cases of illegal detention, as provided for under section 491 of the Code of Criminal Procedure 1898.6 In terms of the development of the principles of writs applications, the Supreme Court explicitly recognised that the requirements that needed to be satisfied for it to issue the writs had been ‘borrowed from English law’.7 In regard to two of the most common remedies, the writs of certiorari and prohibition, it highlighted that ‘. . . these two writs are two of the weapons which Courts of superior jurisdiction use for the purpose of keeping a check and control over inferior Courts’ (italics added). 8 The Court used the imagery of writs as ‘weapons’ here to emphasise its authority to keep the lower courts in line and ensure that they did not exceed their powers. The reference to ‘lower court’ was held to include any administrative decision maker or agency that exercises ‘quasi-judicial’ power. The Court also placed emphasis on the constitutional writs as ‘means of which this court is empowered to protect and safeguard the person and property of the citizens of the Union’.9 Judges of the Court were even described as ‘jealous guardians of the people’s freedom’ for the way in which they decided writs applications in favour of individual rights (Maung Ba Han 1952). The writs were therefore depicted as central to accountability and the protection of individual rights against government interference. Between 1948 and 1962 the vast majority of the writs cases (221 cases, or 88 per cent) were heard by the Supreme Court (Ma Hla Aung 2011). This meant that most cases for habeas corpus were brought under section 25 of the Constitution, rather than under the Code of Criminal Procedure 1898. Many of these cases in the early years concerned allegations of illegal detention under the Public Order (Preservation) Act 1947 (U Hla Aung 1961). As Silverstein (1977: 57) has observed, in deciding these cases, the courts at this time had an ‘enviable record’ of delivering independent judgments and upholding individual rights against arbitrary government action. For example, despite the fact that section 9(1) of the Public Order (Preservation) Act 1947 stated that an order to detain a person under the Act could not be reviewed by a court, the Supreme Court held that this provision was unconstitutional because it was contrary to the powers of the Supreme Court under section 25 of the Constitution.10 This ruling reinforced the view that constitutional rights could not be overruled by Act of Parliament. Over the 14-year period in which the writs were granted by the Supreme Court free from executive or military influence, there were a total of 252 writs cases. The writ of certiorari, which has the effect of ‘quashing’ a decision of a government agency, was the 5 The High Court was established under ss 134 and 135 of the Constitution and s 2 of the Union Judiciary Act 1948. 6 According to s 491 of the Code of Criminal Procedure, the High Court could make a direction in the nature of habeas corpus. See Kean Eng & Co v The Custodian of Moveable Properties, Burma & One [1949] BLR (SC) 71. 7 As quoted by Myint Zan (2004) with reference to U Htwe (alias) A E Madari v U Tun Ohn and One [1948] BLR (SC) 541, at 547. 8 Ibid. 9 Ibid. 10 See Bo San Lin v The Commissioner of Police and one [1949] BLR 372.

144 Melissa Crouch most common writ invoked by applicants during this period.11 A significant proportion of cases dealt with property and town planning issues under the Public Property Protection Act 1947, the Urban Rent Control Act 1948 and the City of Rangoon Municipal Act 1922; labour law disputes under the Trade Disputes Act 1929; and taxation matters under the Income Tax Act 1922. On average, about 18 cases were brought to court each year. The common theme running through these court decisions is the close affiliation with the common law, as then understood, and an emphasis on individual rights. These two elements remain a key part of the legal consciousness of lawyers in Myanmar today. While the focus of this chapter is on the periods when the constitutional writs were available as of right in Burma, the story is incomplete without a brief mention of the 38 years from 1972 to 2010 when the writs were not available. This also raises a central issue that haunts the present-day reform process: can key aspects of the common law, both in substance and procedure, be resuscitated after decades of military rule? THE RETREAT OF THE CONSTITUTIONAL WRITS

On 3 March 1962 General Ne Win declared that the military had taken over by forming the Revolutionary Council. The political and judicial systems then underwent radical reform. The Revolutionary Council began by abolishing the Parliament in March 1962, and later that same month did away with the existing structure of the judiciary by closing the Supreme Court and the High Court, and establishing the Chief Court in its place (Myint Zan 2000: 31). The Special Criminal Court and Appeals Court were then set up, with three members drawn from the Revolutionary Council and Revolutionary Government (Cheesman 2010). As a result, Huxley (2004) argues that from 1962 Myanmar ceased to be a member of the common law family and shifted into the socialist law family. This is debated, however, and, at the least, the common law remained latent under the socialist veneer. Although cases continued to be brought after the coup of 1962, with 20 reported writs cases in 1963 and 15 cases in 1964, there were no reported administrative law cases in 1965, and very few recorded cases per year from 1965 to the 1970s. It has been said that the 1962 coup of General Ne Win ‘in effect ended the operation, function and relevance of the 1947 Constitution’ (Myint Zan 2000: 22). Yet court reports contain evidence that some applications for the writs under section 25 of the Constitution continued at least until the early 1970s. For example, between 1962 and 1971, 89 writs decisions of the Chief Court were reported in the Burma Law Reports. In August 1972 the wholesale domestication of the judiciary took place with the introduction of the People’s Judicial System. This was preceded by the removal of all professional judges from the bench and their replacement with members of the Burma Socialist Programme Party (BSPP), the majority of whom had no legal qualifications (Myint Zan 2000: 36). Some of the former judges were reappointed to the position of ‘court advisor’, although this was purely an advisory role. The courts initially heard only criminal cases until June 1973, when civil cases began to be heard. The period from 1974 to 1988 has 11 Maung Maung (1961: 99–100) claimed, however, that it was habeas corpus that was the ‘most popularly invoked remedy’ during 1948–49. If by ‘popular’ he meant the most common, this seems to be factually incorrect.

The Common Law and Constitutional Writs 145 been labelled by Silverstein (1977: 164) as a period of ‘constitutional dictatorship’, a stifling atmosphere for the courts. Any possibility that writs applications could still be brought was dismissed in January 1974, when a new socialist Constitution was adopted. Under the 1974 Constitution, it was the Pyithu Hluttaw (People’s Parliament), rather than the judiciary, that had the power to interpret the law and the Constitution (ss 200(c); 201). The Chief Court was abolished and replaced by the Central Court of Justice. While this had a profoundly negative impact on all areas of law, public law was most affected by the introduction of the 1974 Constitution (Myint Zan 2000: 33). The socialist political system effectively eviscerated any distinction between the functions and powers of the legislature, executive and judiciary, strangling previously cherished notions of the separation of powers. Judicial independence therefore ceased to exist. Fourteen years on and, despite the demise of socialism, there was still no right to the writs. On 18 September 1988 the State Law and Order Restoration Council (SLORC) 12 took power. This new regime continued a pattern of interfering with the structure of the courts and the appointment and term of the judiciary. One of its first decisions was to appoint five members to the re-established Supreme Court, although there was no assurance of tenure of office. Then in late September 1988 it issued the Judiciary Law No 2/1988, establishing a new court system, although it did not go as far as to grant the new Supreme Court13 the power to hear writs cases. This meant that for those illegally detained for their involvement in the demonstrations for democracy that took place on 8 August 1988, there was no right to seek an order for review of detention. Further legislative changes were made with the introduction of the Judiciary Law No 5/2000, which gave the Supreme Court jurisdiction to review a decision of a lower court, and any order or decision concerning the legal rights of citizens, although, again, it made no mention of the prerogative writs. In addition, in 1990 the military clearly stipulated in a public statement that it would not adhere to any form of constitutionalism.14 Yet it did commence a process of drafting a new Constitution in 1993 and, after many twists and turns, this resulted in the 2008 Constitution. REVIVAL OF THE WRITS SINCE 2011

The 2008 Constitution on the Writs The right to issue writs under the 2008 Constitution is conferred on the Supreme Court, and these rights cannot be limited unless provided for in the Constitution. The Constitution therefore allows for the potential use of the writs to challenge the legality of decisions of the lower courts and of government agencies. Yet the position of the judiciary is no match for the power of the military and its influence over the executive. Even In November 1997 SLORC renamed itself the State Peace and Development Council (SPDC). The court established in 1988 was known as the ‘Supreme Court’, or Taya Yôn Chôk. As Myint Zan points out (2000), the original term used for Supreme Court in 1947 was Taya Hluttaw Chôk, but this only came into use again under the 2008 Constitution. 14 ‘The [SLORC] Tatmadaw is not an organization that observes any constitution; it is an organization that is governing the nation by Martial Law’, SLORC Declaration No 1/1990, s 6. 12 13

146 Melissa Crouch if the judiciary has formal independence and security of tenure, in contrast to the might and power of the military, ‘it has no guns’ (Maung Maung 1961: 155). Unfortunately, in stark contrast to the period of parliamentary democracy, it is widely acknowledged that the post-2011 judiciary does not yet have formal independence (see Williams, this volume; Cheesman, 2012). In terms of the constitutional provisions on the courts, the 2008 Constitution confirms that the Supreme Court is the apex court in the court hierarchy (s 18). We still know relatively little about its caseload given that a large portion of its cases are unreported (although see Nardi and Lwin Moe this volume). It is, however, given the power to issue writs15 under section 296,16 which is similar in effect to section 25 of the former 1947 Constitution. One difference between these two provisions, however, is that the 1947 Constitution placed the right to the writs in Chapter 2 on Fundamental Rights and specifically noted that the Supreme Court could issue these writs ‘appropriate to the rights guaranteed in this Chapter’. In the 2008 Constitution, however, the right to the writs is contained in Chapter 5 on the Judiciary and it makes no mention of the use of these writs to specifically enforce the rights contained in the Constitution. The inclusion of the same writ remedies as the 1947 Constitution is striking, although this does not appear to have been based on any genuine intention to allow for individuals to effectively challenge government decisions. Instead, it is more likely to have been part of efforts by the architects of the National Assembly process to provide a sense of similarity and continuity with the previous 1947 Constitution.17 The right to bring writs applications is also qualified by section 296(b), which provides for the cessation of the right to the constitutional writs in the event of a declaration of emergency by the President. This exception is significant: it departs from international practice and has already had a negative effect on the rights of some individuals. For example, during the state of emergency that was declared in relation to the conflict between Buddhists and Muslims that occurred in Rakhine State in August 2012 and Meiktila District in March 2013, the writs could not be exercised (Crouch 2013b). This is concerning because a large number of Muslims were reported to have been illegally detained, yet no writ of habeas corpus could be lodged on their behalf because such applications cannot be made in relation to individuals in an area under a state of emergency. Despite this limitation on judicial review, since 2011 the Attorney General’s Office has paid renewed attention to the writs. For example, in February 2013 a seminar for law officers from the Attorney General’s Office on ‘The Prerogative Writs under the 2008 Constitution of Myanmar’ was organised with the International Commission of Jurists in Naypyidaw, Yangon (NLM, 15 February 2013). This conference was one of the first public law workshops since the transition in 2011. It broke the 50-year absence of public discourse on the prerogative writs by government agencies since the 1962 military coup rendered the 1947 Constitution redundant. The re-emergence of public discussion about the writ applications also occurred at the same time as the establishment of several non15 The constitutional provisions on the power of the Supreme Court to issue writs are replicated in Judiciary Law No 20/2010. 16 Section 296(a) reads as follows: ‘The Supreme Court of the Union: (a) has the power to issue the following writs: (i) Writ of Habeas Corpus; (ii) Writ of Mandamus; (iii) Writ of Prohibition; (iv) Writ of Quo Warranto; (v) Writ of Certiorari’. The reference to the writs is duplicated in s 378(a) of the 2008 Constitution. 17 Interview with A, Yangon, 11 November 2013.

The Common Law and Constitutional Writs 147 judicial mechanisms of accountability, such as the National Human Rights Commission (Crouch 2013a) and an Anti-Corruption Committee.18 This suggests that there is the possibility of the concept of government accountability being strengthened in the future through both judicial and non-judicial avenues. Writs Applications in the Supreme Court One reason that the Attorney General’s Office has focused on the writs is because of the practical need to respond to the writs cases filed with the Supreme Court since 2011. In August 2013 it was reported that 432 writs cases had been filed in just under two years. Of these, 286 cases were said to be rejected, while another 84 cases remained to be heard. While not explicitly stated, this implied that 62 cases had been successful, although there is no evidence of this (NLM, 9 August 2013). There is also a large number of cases on the Supreme Court’s list of future court hearings, available online since June 2013. 19 For example, in June 2013 there were 25 cases listed for hearing, and all applications were for the writ of certiorari. The applications listed for trial only indicate the remedy sought, and do not give any indication of the status of the parties involved or the merits of the case. We therefore cannot determine whether certain issues are common, although interviews with some lawyers who have lodged these cases suggest some cases relate to property disputes, and are usually in relation to a decision of a lower court. It is also unclear how many of these applications listed received a fair hearing, partly because the hearings of the Supreme Court are not necessarily open to the public. There is evidence to suggest that at least some of these cases were rejected without serious consideration, and that some of the lawyers who represented the applicants had their practising licence cancelled as a result of their attempts to bring the case to court (Soe Than Lynn 2013). Further, of over 400 cases reportedly lodged since 2011, only six were reported in the 2011 Myanmar Law Reports,20 and there were no cases on the constitutional writs in the 2012 Myanmar Law Reports.21 All six cases were brought under section 16 of Judiciary Law No 20/2010, which came into force on 31 January 2011, in accordance with section 296 of the Constitution. All of the cases were unsuccessful on procedural grounds, and I briefly consider each case in turn. The case of U Kyaw Myin v Daw Tin Hla22 arose from a civil case brought under the Urban Rent Control Act 1948.23 In late 2010 the applicant attempted to submit an application to the Supreme Court to challenge the decision of the lower court under the Civil 18 The National Human Rights Commission was established by Presidential Decree, and later by Law 2013. The Anti-Corruption Committee was established by Presidential Notification No 9/2013 on organising the action committee against corruption, with Anti-Corruption Law 2013 coming into force in September 2013. 19 This is a significant step forward, given that even the lawyers in the cases involved often found it difficult to obtain information on when a court trial was scheduled for hearing. 20 A brief note on the citation of the six cases is necessary. Since 1974, the Myanmar Law Reports have been divided into two sections: civil law cases and criminal law cases. Somewhat confusingly, writ cases may be found in either section. This is because, for example, cases that were heard by a court at first instance concerning the Penal Code have been classified under the criminal law section, even though the case heard by the Supreme Court is a writ application, not an appeal from the criminal law case. 21 Myanmar Law Report 2012, Supreme Court of the Union of Myanmar [in Burmese]. At the time of writing, the 2013 Myanmar Law Reports had not yet been published or made publicly available. 22 (2011) MLR (Civil Case) 1. 23 The details of the original case are not specified but it appears that it relates to an attempt by the person who occupied the property but was not the tenant to apply to be recognised as the legitimate tenant.

148 Melissa Crouch Procedure Code but this was rejected.24 In 2011 the applicant then applied to the Supreme Court for the writs of certiorari and prohibition against the lower court judgment. The applicant requested that the court allow the application, despite the fact it was brought outside the two-year limitation period, based on the Court’s power to grant an exception to the time limit under section 5 of the Limitation Act 1909. The judgments were made prior to 2011, however, and the Supreme Court held that it could not hear the case because section 16 of the Judiciary Law does not apply retrospectively. The Supreme Court further noted that the Limitation Act does not apply to writs applications but that the limitation period for writs applications is provided for in section 61 of the Supreme Court Rules 1947 (as amended in 1953).25 The Court was clearly concerned to ensure that there would not be a flood of cases seeking review of the legality of lower court decisions prior to 2011. It was also careful to clarify the writs procedure, and this theme emerges across the other reported cases. The case of Daw Baby Than & 9 others; U Nyi Nyi Tun & 11 others; Dr Hla Maung Din v U Tint Lwin,26 was brought in relation to three civil cases against the Ministry of Industry heard in 2011. The application for the writ of certiorari sought to quash the decisions of the previous court cases. The attached affidavit appears, however, to have been signed by the lawyer, rather than by the applicant. The Supreme Court held that the affidavit was therefore not reliable, referring to the writs procedure in the Supreme Court Rules 1947, as affirmed by the Supreme Court in May 2011. This appears to have caused some confusion over the correct procedure for the writs applications, and may have been one factor that prompted the proposal of the Writs Procedure Bill in 2013 (discussed below). In the third reported case, Daw Mya Shwe v District Court Judge of Hintada District, Hintada City & 3 others,27 the applicant sought the writs of certiorari and prohibition against a 2010 judgment of a Township Court concerning an order to demolish a building. The case was dismissed by the District Court on appeal, and the plaintiff applied to the Supreme Court under section 115 of the Civil Procedure Code, which was dismissed in 2011. The applicant then made the writs application to the Supreme Court, relying on section 5 of the Limitation Act. As in the case of U Kyaw Myint above, the Supreme Court held that section 5 of the Limitation Act does not apply to a writs application because it only relates to appeals.28 In this case, the Supreme Court reiterated a traditional definition of the writs. For example, the writ of prohibition was defined as an order ‘to bar the judgment of an inferior court that does not have the jurisdiction to pass such judgment’, to distance it from any consideration of the merits of a decision. In contrast to the first three cases above, the next case displays greater awareness of precedent and cites three separate cases from the 1950s and 1960s. Daw Than Than Htay & 2 others v Regional High Court Judge Magwe Regional High Court, Magwe

24 Section 115 states that the High Court has the power to review the decision of a lower court. If it finds that it failed to exercise its jurisdiction, went beyond its jurisdiction, or acted illegally in the exercise of its jurisdiction, it can make any order it thinks fit. It is unclear, therefore, why this case was brought before the Supreme Court, rather than the High Court, unless the provision has been amended to also include the Supreme Court. 25 Citing Sayadaw U Aw Ba Tha v Sayadaw U Ye Wata & 5 others (1954) BLR (SC) 39. 26 (2011) MLR (Civil Case) 78. 27 (2011) MLR (Civil Case) 103. 28 Ibid.

The Common Law and Constitutional Writs 149 City & 7 others29 concerned an inheritance dispute. In 2011 the case at first instance was rejected, as was the High Court appeal. The applicant then submitted an application for the writs of certiorari and mandamus to the Supreme Court. The Supreme Court held that the decision that was made by the High Court was within its jurisdiction and rejected the applicant’s claim. In coming to this decision, the Court held that it would not examine witnesses, as that is the role of the court at first instance, but would only consider the affidavit submitted to the court to determine whether the decision had been made within its jurisdiction.30 For this reason, it chided the applicants and, with reference to precedent, emphasised that affidavits should be drafted with care.31 Finally the Supreme Court held that it could not overturn a lower court decision unless it was beyond the jurisdiction of that court according to the law.32 The above four cases were all reported as ‘civil law’ cases. I turn now to consider the two cases in the ‘criminal law’ section of the Myanmar Law Reports. The case of U Myint Than & 5 others v Republic of the Union of Myanmar & 2 others 33 related to criminal charges for mischief, trespass and ‘criminal intimidation’ under the Penal Code.34 The applicant sought an order to return property to the owner who had been dispossessed of it under section 522(1) of the Code of Criminal Procedure. The five accused had occupied the property while the owner was away, and were found guilty of trespassing and ordered to pay either 500 Kyat each [US50 cents] or serve 15 days in prison. On appeal, the Mandalay High Court agreed with the judgment of the lower court but in addition made an order under section 522(1) that the property be returned to the ‘wealthy’ owner. The accused persons then applied to the Supreme Court for the writ of certiorari to quash the decision of the High Court and a writ of prohibition to prevent the owner from bringing a court case in relation to the land. Again, the Supreme Court reiterated that it could only determine whether the lower court had gone beyond its jurisdiction, and that if the applicants wanted the merits of the case to be reviewed, they had to bring an appeal instead.35 The Court was firm in its insistence that ‘The Union Supreme Court will not interfere in the judgment of a subordinate court if the judgment is passed within its power of jurisdiction’ (p 79). The final reported case, and the only one that may have been perceived as a sensitive issue, was the case of Shin Nyana (aka) Shin Mo Pya v Republic of the Union of Myanmar.36 A monk was alleged to have rejected the supervision of the State Sangha Council and was subsequently tried in three separate cases. He was sentenced to three years’ imprisonment under section 12 of the Law relating to the Sangha Organisation No 20/1990, which provides that if a monk establishes a ‘new sect’ or organisation that 29 30

46.

(2011) MLR (Civil Case) 127. Referring to Chanyuta v Permanent Secretary, Foreign Office, Yangon City & one other (1957) BLR (SC)

31 Referring to Bo Kyi Myint and others v Controller of Rents, Rangoon and others (1952) (SC) 185, in which the court states (at 190): ‘We have noticed in many cases that come before us that statements in affidavits are loosely and irresponsibly made. Very often the statements are not borne out by and in fact are contrary to the entries in the records . . . An affidavit is made on oath and is a solemn statement and care should be taken that loose statements are not made’. 32 Referring to Daw Nyunt Yi v Secretary, Ministry of Finance and Revenue & 2 others (1967) BLR 691. 33 (2011) MLR (Criminal Case) 73. 34 Sections 427, 447 and 506 of the Penal Code respectively. 35 Referring to Yanphiwa & 5 others v Deputy Commissioner, Kyainton Frontier District, Kyainton City (1967) BLR 495. 36 (2011) MLR (Criminal Case) 126.

150 Melissa Crouch is not under the supervision of the State Sangha Council (ss 8–9) then he is liable to a prison term of between six months to three years. In the second case, he was sentenced to two years’ imprisonment for defiling a religious place of worship under section 295 of the Penal Code, and in the third case to five years’ imprisonment under section 6 of the Law Relating to Forming of Organizations No 6/1988 [sic] for insulting the Sangha and promoting ‘anti-dharma ideology’. The accused appealed against all three decisions and was dismissed. He then applied for special leave to appeal to the Supreme Court 37 but was again dismissed. Not willing to give up, he then applied for a writ of certiorari to repeal the three decisions on the basis that a person cannot be tried for the same offence three times.38 The Supreme Court held that it could not hear writs applications in relation to its own judgments, only in relation to inferior courts. Because the applicant had already made a special application to the Supreme Court, the Supreme Court held that it could not review this and made an important statement defining its power to issue the writs (under s 16, Judiciary Law): The purpose of conferring the power to issue a writ is to supervise the inferior courts (1) when they adjudicate a case that is not within its jurisdiction, (2) when they exercise power beyond its given jurisdiction, (3) when they do not exercise their jurisdiction appropriately.39

The concept of jurisdiction and the question of whether a decision maker has acted beyond its jurisdiction is central to administrative law. Overall, these six cases display a general common law understanding of the role of the courts in writs cases, with emphasis on the legality of the decision, that is whether the courts had exercised power beyond their jurisdiction, rather than considering the merits or substance of the decision that was made.40 Yet they are silent on many other common elements of writs cases – such as the question of standing (who has the right to apply) or the grounds on which the case was brought, such as procedural fairness. There are also two striking features of the cases: all raise largely procedural issues, and all concern decisions of a lower court, rather than of an administrative decision maker. This suggests that the main role of the Supreme Court in relation to the writs is to act as a check on the decisions of the lower courts. In my discussion of the six reported writs cases, I have assumed that there was a reason these cases were chosen to be reported, out of all of the cases that were heard before the Court in 2011. In a democratic system, we could assume that a case contained in official law reports is chosen for its value as precedent, as an illustration of a key principle and as an example of the development of a specific area of law. We know, however, that the independence of the Myanmar Law Reports and the current Law Reporting Board remains questionable (see Crouch and Cheesman, this volume) and that the courts are not yet independent. In fact, given that the Law Reporting Board has omitted from the reports cases of a politically sensitive nature over the past decades, it could be assumed that the six cases reported were chosen for the opposite reason: that they were among the least controversial cases of all the writs cases heard in that year. This is posUnder ss 19 or 20 of the Union Judiciary Law. This was based on the argument that the decisions were inconsistent with provisions of the Penal Code and the Criminal Procedure Code that do not allow a person to be tried for the same offence twice. 39 See DD Grover v AC Koonda, Controller of Rent, Mandalay (1955) BLR 54. 40 The distinction between legality and merits is common in administrative law, although the extent to which courts stress this distinction varies among common law countries. For one explanation, see Cane (2011: 35–40). 37 38

The Common Law and Constitutional Writs 151 sibly supported by the fact that all six cases concern mundane procedural issues, and all six were unsuccessful. It must be kept in mind also that the Myanmar Law Reports have been isolated from the common law world since the 1970s, when the 1974 Constitution required the courts to use Burmese, rather than English. At this stage, the reasoning behind the reporting of cases will remain a mystery until either unreported cases are made publically available, or independent reports can be published. Untold Stories, Unreported Writs Cases I turn now to unreported cases, to contrast them with the cases in the Myanmar Law Reports.41 Since 2012 applications for the writ of habeas corpus have been brought by family members of individuals arbitrarily arrested in Kachin State, where fighting continues between the Kachin Independence Army (KIA) and the government. 42 On 23 February 2012 an application was made by U Daung Lwam, a Kachin man, on behalf of his 28-year-old wife, Daw Swam Lut Raougya. The application was made under section 378(a)(1) of the Constitution and section 16(a)(1) of the Judiciary Law No 20/2010. 43 The application sought to challenge the detention of his wife in October 2011. According to the submission, at the time the applicant and his family were working on their maize plantation in Khineban Village, Lwegae Township, Kachin State. Three soldiers came and arrested the applicant, his wife and father at gunpoint. They were questioned by the soldiers about whether they were members of the KIA, which they denied. While they were being taken to a military camp, the applicant and his father managed to escape. For several days some local women kept watch at a distance over the location where the wife was thought to be held in a military compound but they became worried when they did not see her after several days. On 4 November 2010 the family sent a letter to the Chief Minister of Kachin State seeking her release, but received no response. The husband therefore found a lawyer and the case was lodged with the Supreme Court in February 2012. The applicants’ case rested on several constitutional provisions.44 He argued that a citizen cannot be placed in custody for more than 24 hours without a warrant from the court, and that no warrant had been issued in relation to his wife. Because every citizen enjoys equality before the law, he argued that his wife had been treated unfairly. Finally, he argued that the government has a duty to protect the ‘life and personal freedom’ of his wife, and given that his wife was not a member of the KIA, there was nothing in the existing law that provided a legitimate exception to this right. The applicant emphasised that his wife was a citizen of Burma and that she belonged to the Kachin ethnic group, a recognised ethnic nationality according to the government’s list of 135 ethnic groups. 41 While I made numerous attempts to obtain other unreported judgments from lawyers, often files had been misplaced, lost or ruined by mould or decay. The difficulty of knowing which lawyers represent litigants in such cases is compounded by the fact that it is not common to specialise in this area as it is still new. Prior to June 2013 no case lists were available online; and the media rarely report court cases, due to issues such as fear of contempt of court. 42 For an analysis of the conflict between the government and the Kachin, which up until June 2013 was the only ethnic armed group that had not yet signed a ceasefire with the government, see ICG 2013. See also Farrelly and Cook, this volume. 43 Application to the Supreme Court for the writ of habeas corpus by U Daung Lwam, 23 February 2011. 44 These were ss 21(b), 376; s 347; and s 353 of the 2008 Constitution.

152 Melissa Crouch The application was short on legal principles and argument but it did rely on two court rulings of the Supreme Court from the early years of independence. The first case, from the 1950s, was referred to as an example of a case where a wife was granted standing and made a successful application for habeas corpus for release of her husband who had been detained for one year and eight months ‘based on mere possibilities’.45 The lawyer cited this case in support of the husband’s standing and right to bring the application on behalf of his wife. The second case was cited for the principle set out by the Supreme Court that a person has the right to freedom without restrictions, and a right to freedom from unlawful arrest.46 The applicant emphasised that there was no legal basis for the arrest of his wife. The application did not go into further details of the legal arguments but it did take the opportunity to outline the extent of the fighting and displacement that had occurred in Kachin State. Towards the end of the application, a short reference was made to the perceived role of the military in the transitional period: ‘Although the Myanmar government is undertaking democratic transformation on one side, the Myanmar Army has clearly breached the human rights of citizens. The transformation has only occurred in the areas surrounding Yangon and Naypyidaw’. This is a short and sharp statement of the frustration felt by many ethnic nationalities in areas outside the major towns of Burma, and echoes the concerns raised by many about the persistent actions of the military and the disregard for human rights. Ultimately, the husband’s application was rejected by the Supreme Court in this case on the grounds that there was no evidence that the army had taken her into its custody before her disappearance. 47 The husband has still not been able to locate his wife. Since then, there have been habeas corpus applications in relation to the detention of two other Kachin men (Kachinland News, 23 February 2012; 12 December 2013). On 1 December 2011 Brang Seng, a 30-year-old man from Tarlawgyi village, Myitkyina, was taken by Burmese soldiers. On 5 January 2012 the same military unit was said to have detained Zau Seng, from the same village. Family members had not heard from either of the men since they had been detained. The applications for habeas corpus in relation to the two incidents were heard together. The trial date was initially scheduled for 9 February but on that date the government’s lawyers claimed they needed more time, and requested the hearing be postponed. Due to the high costs involved in travelling to, and staying in, Naypyidaw for the hearing (which is where the Supreme Court has been located since 2005), the members of the victims’ family returned home to wait for the new trial date (Kachinland News, 23 February 2012). The hearing finally began on 23 February 2012 but the applicants’ claim was dismissed because the military argued the accused had been legally detained under the Unlawful Associations Act 1908. The case was then transferred to the Township Court to hear charges against the accused on the grounds of being an alleged member of the KIA. While I do not claim that these cases are representative of the unreported cases, it nevertheless suggests that there is a discrepancy in the kinds of cases reported in the Myanmar Law Reports and a large number of unreported writs cases, which may relate to more politically sensitive issues challenging arbitrary government decisions and Tin Zar Maw Naing & Yangon Policed Colonel [1950] BLR (SC) 17. GM Barnargi and Supervising Officer of Insein Jail [1948] BLR 199. Report of the Special Rapporteur on the situation of human rights in Myanmar in accordance with Assembly Resolution 66/230, presented at the 67th session of the UN General Assembly, 25 September 2012. 45 46 47

The Common Law and Constitutional Writs 153 actions, such as the detention of Kachin villagers. This is not the only source of controversy surrounding the writs, as attempts by the executive to limit the right to bring a writ application are evident in the parliamentary debates that took place in 2011–13 concerning the Writs Procedure Bill, which I turn to next. Debate on the Writs Procedure The debate over the existing procedure, as set out in the Supreme Court Rules, began in Pyithu Hluttaw in early 2011 (NLM, 10 September 2011). A member of Parliament asked the Supreme Court to provide evidence of how many writs cases had been filed under section 296 of the Constitution. This is an unusual request and can be seen as a breach of the separation of powers. From the perspective of the Hluttaw, however, this may have been justified on the basis that, at the time, the Supreme Court did not make any of its court decisions publically available online and did not publish information about its caseload, apart from the annual Myanmar Law Report. Further, the Pyidaungsu Hluttaw has the power to summon any Union level organisation for ‘clarification’ (2008 Constitution, s 77(c)), and the Constitutional Tribunal has defined Union level organisations as including the Supreme Court. The Chief Justice reported before the Hluttaw that 16 applications had been lodged as at April 2011 and, of these, 10 sought the writ of certiorari. Discussion arose again in August 2012 when another member of the Pyithu Hluttaw Thura, U Aung Ko, submitted a proposal to revise the writs application procedure on the grounds that it was perceived to be too restrictive (NLM, 1 August 2012). In particular, it was submitted that the writs applications should apply to decisions of the Supreme Court (in its ordinary jurisdiction), the Constitutional Tribunal and the Union Election Commission. Again, this is a very unusual request, although perhaps the real issue was the perceived need for the courts to be able to hear applications for review of decisions of the Union Election Commission. On 31 August 2012 this was debated in the Pyithu Hluttaw. One of the justices of the Supreme Court, U Soe Nyunt, was summoned to attend the parliamentary session and explained that while writs applications can be brought to challenge decisions of a lower court, writs applications cannot be used to challenge decisions of the Supreme Court, because its decisions, as well as those of the Constitutional Tribunal and the Union Election Commission, are final.48 The Judge also noted that the time limitation for writs applications was clear according to law. Leaving aside the substance of his comments, it is astonishing that a judge was called to the Parliament on a second occasion, this time to address a proposal under consideration by the Pyithu Hluttaw. This appears to be a misunderstanding, if not a blatant breach, of the separation of powers. It only reinforces suspicions that the judiciary is neither independent nor separate from the executive in Myanmar. It also suggests that the legislature is overstepping its role and the limits of the separation of powers, even if it was in an attempt to obtain information that would promote greater transparency on the caseload of the court and its procedure. The debates in 2012 prompted a drafting process for a new law. In July 2013 a proposal for a Writs Procedure Bill was submitted to the Pyithu Hluttaw by U Lwin Oo, a 48

Constitution 2008, ss 295(c), 324 and 402 respectively.

154 Melissa Crouch member of the Judicial and Legal Affairs Committee (NLM, 18 July 2013). The Writs Procedure Bill remains under consideration at the time this chapter was written. It does potentially introduce significant changes, and the debates have centred on the time frame within which applications must be brought, the hearing process, and the scope and definition of the writs. The importance attached to the time limitation is no doubt related to the cases that were brought concerning whether the exception to the time period in the Limitations Act applied to writs cases. The current process requires writs applications to be brought within two years, but as the Court has held that the Limitations Act does not apply, the Court has no power to consider applications after this time period. The draft bill would maintain this time limitation of up to two years to bring an application for the writs, with no Court discretion to hear a case beyond this time. The second issue concerns the procedure for hearing a case in the Supreme Court. The Writs Procedure Bill proposes to establish an ‘Applications Review Board’ within the Supreme Court. It would consist of three panel judges including the Chief Justice, or if the Chief Justice was not available, a person appointed by him may fill his place. Section 20 also gives the Attorney General the right to submit an application, a process which has a long tradition in the common law yet is rarely exercised, and this is also likely to be the case in Myanmar.49 The third issue was the definition of the writs, particularly the definition of certiorari, prohibition, quo warranto and mandamus (Ch 1(d)–(g)). There appears to have been an attempt to redefine the writs in a narrower sense than general common law understanding, that is, to give them a ‘local’ Burmese definition distinct from the common law. This could potentially preclude any reference to precedent in other common law jurisdictions. While the definitions on their face do not appear to be substantially different from a traditional common law understanding, the main issues appear to be that prohibition and certiorari are narrowly related to decisions of lower courts or decisions of a ‘judicial nature’. How this operates in practice may not be apparent until interpreted by a court but it could still arguably apply to decisions of other government agencies. CONCLUSION

One characteristic of the socialist and military periods in Myanmar has been the inability of individuals to challenge government decisions in court. The post-2011 era departs from this by adopting the constitutional writs in the form they were first recognised in the 1947 Constitution. There is now a renewed sense of the endurance of the legacy of the constitutional writs of the 1947 Constitution through the common law. I now turn to reflect back on the question of what the writs illustrate about the ability of individuals to seek review of government decisions. The 2011 reported cases reveal little in response to this question, given that all cases concerned challenges to the decision of a lower court rather than administrative decision makers. This suggests that while the Supreme Court supervises decisions of lower courts, it does not yet play a role in reviewing executive actions. In terms of the unreported cases, there is a sense in which 49 For example, Aronson et al (2009: 748) highlight that historically, the Attorney General has had the right to seek judicial review in ‘the public interest’, although they note that citizens cannot not necessarily rely on the Attorney General to act in this regard.

The Common Law and Constitutional Writs 155 the habeas corpus cases were futile exercises that led to the exertion of significant time and expense without any tangible success, which resonates with Cheesman’s (2010) observation on the limited utility of habeas corpus applications. There are also practical challenges faced by all applicants, such as the cost of travelling to Naypyidaw, and the general perception that the courts are not independent. If we instead consider the difference writ cases make for lawyers, then the answer may be slightly more nuanced and suggest an incremental step forward. From the perspective of the lawyers involved, they felt that the opportunity to bring these cases to the Supreme Court and receive a hearing was significant in itself.50 The reason for this is that the act of reintroducing the constitutional writs once again confirmed their legitimacy and removed a level of uncertainty about the relevance of the common law. This has implications that potentially stretch beyond the constitutional writs to other areas of law. In terms of the second question raised about the role of the courts and its relation to the executive, the 2011–13 debate provides another indication of the strength, and at times aggressive nature, of the Parliament and its willingness to inquire into the Court’s practice and procedure, even if this comes at the expense of a strict separation of powers. In terms of the substance of the proposed Writs Procedure Bill, however, it appears that the Hluttaw may ultimately restrict the scope and application of the writs, and therefore the role of the courts. The fate of administrative law in Myanmar is tied to the future direction and development of the legal system, which, in turn, depends on the release of the judiciary from executive-military control. In 2013-2014 a process of constitutional amendment was in progress, and the need to clarify the separation of powers and the independence of the judiciary in the Constitution is a key part of this agenda. Yet until such a change takes place, any prospects for accountability or the realisation of Chief Justice U Ba’s vision of the writs as ‘weapons’ against arbitrary government decisions may perhaps remain confined to the pages of the pre-1970s Burma Law Reports. REFERENCES Aronson, Mark, Dyer, Bruce and Groves, Matthew (2009) Judicial Review of Administrative Action (Pyrmont NSW, Thomson Reuters). Cane, Peter (2011) Administrative Law, 5th edn (Oxford, Oxford University Press). Cheesman, Nick (2010) ‘The Incongruous Return of Habeas Corpus to Myanmar’ in Nick Cheesman, Monique Skidmore and Trevor Wilson (eds), Ruling Myanmar: From Cyclone Nargis to General Elections (Singapore, ISEAS). —— (2012) ‘Myanmar’s Courts and the Sounds Money Makes’ in M Skidmore and T Wilson (eds), Myanmar’s Transition: Openings, Obstacles and Opportunities (Singapore, ISEAS). Crouch, Melissa (2013a) ‘Asian Legal Transplants and Rule of Law Reform: National Human Rights Commission in Indonesia and Myanmar’ 5(2) Hague Journal on the Rule of Law 146. —— (2013b) ‘The Constitution, Emergency Powers and the Rule of Law in Myanmar’ Panorama, Special Edition: Myanmar in Transition 47. Huxley, Andrew (2004) ‘Case Note: California Refuses to Apply Myanmar Law’ 6(1) Asian Law 88. International Crisis Group (ICG) (2013) Update Briefing: A Tentative Peace in Myanmar’s Kachin Conflict. Asia Briefing No 140. 50

Interview with the lawyers in this case, Yangon, 10 January 2013.

156 Melissa Crouch Kachinland News (23 February 2012) ‘Burmese Government’s Supreme Court Delays Hearing for Three Kachin Villagers’, http://kachinlandnews.com/?p=21348. —— (12 December 2013) ‘Legal Challenge to Burmese Army Fails’, http://kachinlandnews. com/?p=21512. Ma Hla Aung (2011) Reported Cases of Writs Application with Judgment Summary 1948–1971 (Yangon, publisher unspecified). Maung Ba Han (1952) A Legal History of India and Burma (Rangoon, AMAK Press). Maung Maung (1961) Burma’s Constitution (The Hague, Martinus Nijhoff). Myint Zan (2000) ‘Judicial Independence in Burma: Constitutional History, Actual Practice and Future Prospects’ 4 Southern Cross University Law Review 17. —— (2004) ‘A Comparison of the First and Fiftieth Year of Independent Burma’s Law Reports’ 35(2) Victoria University of Wellington Law Review 385. New Light of Myanmar (NLM) (10 September 2011) ‘Pyithu Hluttaw Session Continues for 15th Day’, pp 1, 8. —— (1 August 2012) ‘Applying of Writs against Decisions of Union-level Organisations Contrary to Constitution’, p 1. —— (15 February 2013) ‘Writs Vital for Rule of Law Justice and Human Rights: Union AttorneyGeneral’, p 16. —— (18 July 2013) ‘Pyithu Hluttaw Approves to Discuss Bill on Applying for Writs’, p 16. —— (9 August 2013) ‘Chief Justice of the Union Stresses the Important Role of Courts in Ensuring the Rule of Law’, p 8. Silverstein, Joseph (1977) Burma: Military Rule and the Politics of Stagnation (Ithaca, NY, Cornell University Press). Soe Than Lynn (2013) ‘MPs Tackle Judicial Reform with Writ Bill’ The Myanmar Times, 1 September, www.mmtimes.com/index.php/national-news/8050-mps-tackle-judicial-reform-with-writ-bill. html. U Hla Aung (1961) ‘The Law of Preventive Detention in Burma’ 3(1) Journal of the International Commission of Jurists 47–67.

LEGISLATION City of Rangoon Municipal Act 1922 (The Burma Code, vol VI) Code of Criminal Procedure 1898 (The Burma Code, vol VIII) The Constitution of the Union of Burma 1947 The Constitution of the Socialist Republic of the Union of Burma 1974 The Constitution of the Republic of the Union of Burma 2008 Income Tax Act 1922 (The Burma Code, vol III) Judiciary Law No 2/1988 (State Law and Order Restoration Council Law) Judiciary Law No 20/2010 (State Peace and Development Council Law) Law Relating to Forming of Organizations No 6/1988 (State Law and Order Restoration Council Law) Law Relating to the Sangha Organization No 20/1990 (State Law and Order Restoration Council Law) Limitation Act 1909 (Burma Code, vol XII) Public Order (Preservation) Act 1947 (The Burma Code, vol II) Public Property Protection Act 1947 (The Burma Code, vol II) Supreme Court Rules 1948 (amended 1953) on the writ procedure Trade Disputes Act 1929 (The Burma Code, vol V) Urban Rent Control Act 1948 (The Burma Code, vol X)

The Common Law and Constitutional Writs 157

CASES Application to the Supreme Court for the writ of habeas corpus by U Daung Lwam, 23 February 2011 Bo San Lin v The Commissioner of Police and one [1949] BLR 372 Daw Baby Than & 9 others; U Nyi Nyi Tun & 11 others; Dr Hla Maung Din v U Tint Lwin (2011) MLR (Civil Case) 78 Daw Mya Shwe v District Court Judge of Hintada District, Hintada City & 3 others (2011) MLR (Civil Case) 103 Daw Than Than Htay & 2 others v Regional High Court Judge Magwe Regional High Court, Magwe City & 7 others (2011) MLR (Civil Case) 127 GM Barnargi and Supervising Officer of Insein Jail [1948] BLR 199 Kean Eng & Co & 3 others v The Custodian of Moveable Properties, Burma and one [1949] BLR (HC) 71 Myanmar Law Report 2012, Supreme Court of the Union of Myanmar [in Burmese] Shin Nyana (aka) Shin Mo Pya v Republic of the Union of Myanmar (2011) MLR (Criminal Case) 126 Tin Zar Maw Naing & Yangon Policed Colonel [1950] BLR (SC) 17 U Htwe (alias) A E Madari v U Tun Ohn and One [1948] BLR (SC) 541 U Kyaw Myin v Daw Tin Hla (2011) MLR (Civil Case) 1 U Myint Than & 5 others v Republic of the Union of Myanmar & 2 others (2011) MLR (Criminal Case) 73

9 Constitution-making in Myanmar: Insights from World Experience ANNA DZIEDZIC AND CHERYL SAUNDERS

A

FTER DECADES OF military rule and relative isolation from the world, Myanmar has embarked on a process of reform from authoritarian rule towards a measure of democracy. For the moment, the transition is led by the incumbent quasi-civilian government and is regulated under the 2008 Constitution. This Constitution has been criticised in relation to both the process by which it was made and its substantive provisions (Williams, this volume). Relevantly for present purposes, the 2008 Constitution was the result of a process strictly controlled by the military regime. The views of the National League for Democracy and ethnic groups were largely excluded. The Constitution entrenches the military’s role in government; devolves some powers to state and regional legislatures while maintaining the dominance of the central government; and sets a high bar for constitutional amendment. As democratisation proceeds, constitutional change of some kind seems likely. A parliamentary committee was established in 2013 to review the Constitution. There is speculation that pressure for wider constitutional change might arise after parliamentary elections and presidential nominations in 2015. Whatever the timetable, it is timely to consider issues that are likely to arise in connection with a constitution-making process and some of the options for dealing with them. Myanmar will face a host of questions that have been confronted by other states in similar circumstances, including whether to make a new constitution or amend the existing one; what kind of process to use; and how best to use the range of international assistance likely to be on offer. In addition, there are particular features of the situation in Myanmar – including the degree of military dominance of governmental institutions and a long history of conflict between groups that are divided on ethnic and religious lines – that are likely to further complicate the constitution-making process. In any constitution-making exercise, a prime objective must be to secure the legitimacy of a constitution that, typically, represents fundamental law and provides the framework for government, its relationship with its people and the operations of the state within the international system. In Myanmar, legitimacy is all the more important given the deficiencies in the process leading to the 2008 Constitution. Many factors contribute to legitimacy that may bear different weight in different contexts. Flaws in an existing Constitution make legal legitimacy, in the sense of compliance with the requirements for constitutional change set out in that Constitution, less significant for overall

160 Anna Dziedzic and Cheryl Saunders legitimacy. Indeed, such flaws make public acceptance of any new constitution-making process even more important, whether it is characterised by continuity or not. Legitimacy can also be served by the effectiveness of a constitution over time, in practice and in the eyes of those subject to it. It is also sometimes suggested that international approval is relevant to constitutional legitimacy. In practice, international approval has been relevant in the historical constitution-making experience of many states, as the examples of Japan, BosniaHerzegovina and Namibia show. On the other hand, given the imperative for ownership of a constitution by the people governed by it, it is hard to accept that international approval confers legitimacy in its own right. The solution may lie in the interdependence of these sources of legitimacy. Increasingly, people expect their Constitutions to comply with key international standards in relation to both principle and process. Equally the international community, represented for this purpose by the United Nations, acknowledges ‘national ownership’ as a ‘guiding principle’ of a constitution-making process (United Nations Secretary-General 2009: 4). The purpose of this chapter is to examine the relevance of world experience in constitution-making for the next stages of Myanmar’s constitutional development. Its focus is primarily on the processes and mechanisms of constitutional change, although these sometimes unavoidably stray into questions about constitutional substance. It is not our intention to suggest that there is any single path that Myanmar must follow. These are decisions that must be made within Myanmar itself, in a way that is responsive to its context and the views of its peoples. World experience is useful, however, to assist to identify the kinds of issues that are likely to arise, the principles that they engage, and procedures and mechanisms that have been used elsewhere that might be adapted to Myanmar’s own circumstances. This chapter considers four issues that are likely to be central to a process of constitutional change in Myanmar. In the first part of the chapter, we examine constitutionmaking as part of a transition to democracy from authoritarian rule when the military remains a dominant force. The second part deals with the principle of inclusiveness in a constitution-making process, generally and in the context of ethnic and religious divisions. In the third part we identify the range of considerations that might feed into the choice of procedures to develop and effect constitutional change. Finally, we consider how Myanmar might take best advantage of the plethora of international assistance and advice that is likely to be on offer, if and when it decides to move down this path.

TRANSITION FROM MILITARY RULE TO DEMOCRACY

Constitutional change may be a key step in transition from an old to new regime. It serves both practical and symbolic purposes. Practically, constitutional change will often be necessary to provide a framework for the new regime. In the case of transition to democracy, for example, it may be needed as the basis for free and fair elections or to establish representative institutions. Symbolically, constitutional change can serve to distinguish between the old and new regimes and make a strong statement as to the aspirations and credentials of the new legal and political order. Transition can be a fraught time for constitutional change to occur. Determining questions about the nature and identity of the state, the design of institutions of government

Constitution-making in Myanmar 161 and the scope of rights protection can expose and exacerbate fundamental cleavages between different groups within the state. In times of uncertainty, groups may be unsure where their interests lie, or how constitutional change might affect them. Where the interests of different groups collide, constitution-making can result in ‘winners’ and ‘losers’, undermining constitutional cohesion and contributing to, rather than resolving, instability (Elster 1995). Nevertheless, constitution-making may also play a positive role in times of transition. A renewed constitution can set an agenda for reform, provide an alternative to conflict, and facilitate social integration (Yeh and Chang 2009: 149). It can assist in both building the institutions of the state and forging a collective national identity (Haysom 2002). Constitution-making offers an opportunity for inclusion of groups previously marginalised by the political process. Constitutional reform can enhance the credibility of a new regime, nationally as well as internationally. Challenges for Constitution-making A key question for states in transition to democracy is whether to make a new constitution or amend the existing one. Although the distinction is at times hard to draw, constitutional amendment involves specific changes to an existing constitution as opposed to renewal of the constitution as a whole. This is a real question for Myanmar and there are pressures either way. The National League for Democracy (NLD) has particular provisions in its sights. Current constitutional provisions prevent the League’s leader, Daw Aung San Suu Kyi, from running for President in 2015. Suu Kyi has also argued for constitutional change to ensure that the 2015 elections are free, fair and credible (Ponnudurai 2013). However, the NLD has otherwise been cautious in its constitutional demands. Suu Kyi has spoken of a pragmatic approach, distinguishing between ‘what we want and what is feasible’ and stating her belief that ‘we have to start with what is possible to achieve’ (Eleven Myanmar 2013). Others seek more extensive constitutional revision. Representatives of ethnic and civil society groups recently rejected the 2008 Constitution and resolved to press for an entirely new, federal Constitution (United Nationalities Federal Council 2013). The military is a central factor in all this. Myanmar’s experience of military coups and prolonged periods of military rule, as well as the military’s central role in making Myanmar’s three constitutions, are discussed in other chapters. The military is deeply embedded in Myanmar’s political, economic and social systems, and its role as ‘guardian’ of the nation is recognised in the 2008 Constitution, as well as in the political and daily life of Myanmar’s people (Steinberg 2010: 102–03). The military currently has firm control over the process of transition. Its views on constitutional change are not clear, and there may in fact be differing views among its members. For his part, President Thein Sein has stated that the Constitution sets out the process for constitutional amendment and that it is for the Parliament and the people to decide these issues (Middleton 2013). Questions of both legitimacy and practicality inform the decision whether to make a new constitution or amend an existing one. A new constitution may be preferable in principle if it represents a break from an old, illegitimate regime and any instrument

162 Anna Dziedzic and Cheryl Saunders made under its auspices. Constitution-making can be a ‘founding moment’ in which a new social and political compact is reached. In practice, however, a new constitution is not always possible in times of transition. Transitional constitution-making is sometimes incremental, requiring negotiation between the old regime and representatives of the new order and drawing on existing legal and institutional frameworks, however flawed (Yeh and Chang 2009; Partlett 2012). The point can be illustrated by the experience of many states, and we select three examples here: Indonesia, Chile and South Africa. These examples are particularly relevant to Myanmar because they illustrate the different paths that constitution-making may take in transitional contexts where the military remains a significant social and political force. Indonesia Indonesia is often seen as a precedent for Myanmar’s transition because of the parallels between them (see Lindsey, this volume). Both have multi-religious and multi-ethnic populations, some of whom demand autonomy; the military has played a key social and political role in each state; both have been ruled by military governments; and both face similar issues in relation to the transition to democracy (Renshaw 2013: 44–45). Indonesia’s transition to democracy began in 1998, with the resignation of President Soeharto, who had led what amounted to a coup in 1965 and presided over a militarydominated government for over 30 years. Indonesia’s 1945 Constitution, replaced and then reinstated in 1959, provided the framework for authoritarian rule under both Soeharto and his predecessor, Soekarno (Lindsey 2002: 245). However, rather than make a new constitution to mark the transition to democracy, Indonesia took the path of amending the 1945 Constitution. Under the 1945 Constitution, the Majelis Permusyawaratan Rakyat (MPR) or People’s Consultative Assembly, comprising all members of the newly elected legislature and regional representatives, had power to ‘determine’ the Constitution. Working sometimes in public and sometimes behind closed doors, the MPR developed four sets of constitutional amendments, one each year from 1999 to 2002. The first two amendments limited presidential terms and powers, incorporated a bill of rights, provided for decentralisation and regional autonomy, and removed the military from government and placed it firmly under parliamentary control. The third amendment provided for the direct election of the President, introduced new impeachment procedures and established the Constitutional Court, Judicial Commission and a regional senate. The fourth dealt with the role of the MPR itself, making it a completely elected body. The decision to amend the existing Constitution rather than make a new one was informed by Indonesia’s particular circumstances. The 1945 independence Constitution held symbolic significance for many Indonesians. The principles of Pancasila, enshrined in its preamble, framed a sensitive understanding of the nature of the state. An incremental approach allowed the MPR to take the middle path between those who wanted no constitutional change whatsoever and those who demanded a wholly new constitution (Indrayana 2008: 273–78). Nevertheless, while in form the Indonesian process involved only a series of constitutional amendments, in reality it resulted in a constitution that was almost entirely new (Indrayana 2008: 331–32). The Constitution not only provides a framework for democracy and the protection of human rights, but also removed the military from political and governmental office.

Constitution-making in Myanmar 163 Chile Chile offers a second example of incremental constitutional change in circumstances in which the military held significant control. A military coup in 1973 installed General Pinochet as dictator. In 1980 a new constitution was adopted at a referendum tightly controlled by the military. This Constitution contained both a transitional and permanent Constitution. The transitional Constitution was, in essence, a framework for the existing military dictatorship. However, it provided that in 1988 a plebiscite would be held to approve the next President, after which time the permanent Constitution would commence. While the regime expected that Pinochet would be returned as President, campaigning by opposition forces led to Pinochet’s defeat and opened the way for new presidential and parliamentary elections (Montes and Vial 2005). Negotiations for constitutional reforms began soon after the plebiscite. Representatives of democratic parties, the government and political parties supporting the military agreed on the first small reforms, which were approved at a plebiscite prior to parliamentary elections. The amendments were the product of compromise, and reduced but did not remove the military’s control over government. Succeeding governments took steps to remove authoritarian provisions from Chile’s Constitution, although it has sometimes been difficult to obtain the support of the requisite parliamentary majority. A series of amendments between 1991 and 2001 provided for the direct election of municipal councils, reform of the justice system, equal rights, and the removal of censorship. In 2005, after four years of debate, constitutional amendments finally removed appointed senators and eliminated the autonomy and influence of the military in politics. Questions persist, however, about the legitimacy of Chile’s Constitution. Students and civil society groups in Chile have called for a new constitution to be drafted in an open and participatory process (Sacaan 2014). Chile’s new President, Michelle Bachelet, has promised a new democratic constitution will be put to the legislature during her first year in government (Merco Press, 10 June 2013). South Africa The transition to democracy in South Africa took a somewhat different path. While the catalyst for constitutional change was the end of apartheid, South Africa shares some similarities with Myanmar, Indonesia and Chile. The transition from a non-democratic to democratic regime occurred in circumstances where the white minority controlled not only the Parliament but also the institutions of state, including the police and military. It was clear that this group would lose power once racial restrictions on the franchise were removed. It was equally clear that the leading political party representing the black majority, the African National Congress, would easily win the ensuing elections. It was easy to anticipate that the government and clandestine forces might use violence to hold on to power and protect their interests (Klug 2007). The question was how to achieve constitutional change in a way that secured the legitimacy of the Constitution but also avoided conflict and built trust between these deeply divided racial groups. Unlike constitution-making in Indonesia and Chile, South Africa moved quickly to an entirely new constitutional regime. It did so in a two-stage process that enabled agreement to be reached between the incumbent government and new political forces and, crucially, provided the new constitution with legitimacy. In the first stage, a multi-party

164 Anna Dziedzic and Cheryl Saunders forum agreed on 34 principles that would form the basis of a new, permanent Constitution. These included a democratic system of government based on equality and non-discrimination; separation of powers; judicial independence; proportional representation; freedom of information; and the protection of linguistic and cultural diversity. These principles, and the procedures for making the permanent Constitution, were set out in an interim Constitution, which was formally enacted by the existing Parliament. The second stage involved drafting and approving the final Constitution. This Constitution was written over a two-year period by an elected Constitutional Assembly, comprising the members of each of the newly elected houses of Parliament. The process provided the new Constitution with legitimacy in the eyes of the black majority, who rejected both the legitimacy of the former Constitution and the Parliament elected under its provisions, on the basis that both had operated to exclude them and repress their rights. Considerations for Myanmar Any constitution-making process in Myanmar, at least in the near future, will need to take account of the significant continuing influence of the military and its potential to destabilise any new democratic regime as it struggles with a range of difficult problems. The comparative examples canvassed in this part identify some of the ways in which this not unusual situation has been handled elsewhere. A central consideration, although by no means the only consideration, is likely to be the choice between a new or amended constitution. The advantages of a new constitution lie in the legitimacy that comes with making a clear break from a discredited regime to build the constitution on democratic foundations. South Africa’s experience suggests one way in which this might occur. The negotiation of guiding principles prior to drafting the new Constitution and the device of an interim Constitution worked in South Africa’s case to provide sufficient reassurance to key parties to avoid outright conflict while establishing the new constitution as legitimate in the eyes of the South African people. Alternatively, the experiences of Indonesia and Chile demonstrate that transition can also be effected by an incremental approach to constitutional change within existing legal frameworks. Indonesia’s experience demonstrates that constitutional renewal can progress quickly by these means. In Chile, the necessary measure of constitutional change occurred over a longer period of time but eventually succeeded in removing undemocratic features from an authoritarian Constitution. Both examples demonstrate that an incremental approach is not necessarily fatal and may have significant benefits. Amending an existing constitution focuses attention on particular issues, avoiding the need to engage with underlying principles and ideologies that may generate deeper divisions. A staged process also means that compromises made early on can be revisited later, as occurred in Chile, where appointed senators were initially retained but eventually removed. A requirement for ongoing negotiation means that all parties must work to establish and maintain a sufficient level of trust. There are risks in an incremental approach as well. If the existing Constitution lacks legitimacy, mere amendment may not be regarded as acceptable, either in the short or longer term. Further, negotiations for constitutional amendment are more likely to be driven by elites, requiring the people to place considerable trust in their leaders. It has

Constitution-making in Myanmar 165 been argued that incrementalism worked in Chile because of its strong democratic traditions; people had a degree of faith in the democratic political parties that pre-dated the coup (Montes and Vial 2005: 19). In other circumstances, the deficit has been overcome through a process of amendment that gives the people greater involvement. South Korea is an example, where popular protests in 1987 led to constitutional amendments that were endorsed at referendum (West and Baker 1988). Finally, while all major constitutional change requires compromise to ensure broad acceptance of the legitimacy of the fundamental law, the concessions made at the outset of an incremental process may be disheartening. Constitution-making should not be too utopian. Nevertheless, finding solutions in Myanmar that attract the support of both military and democratic forces, while maintaining pressure for the extension of democracy over time, is a considerable challenge, the difficulty of which should be understood from the start.

INCLUSIVENESS IN CONSTITUTIONAL DESIGN

Most of the world’s states are multicultural, comprising peoples with diverse ethnic, linguistic, religious and cultural affiliations. While the manifestations of diversity vary with the history and context of each state, adequately acknowledging diversity is a challenge shared by constitution-makers worldwide. The challenge is heightened where there has been conflict or where groups have radically different visions of the nature of the state. In such circumstances, constitution-making can be an opportunity for reconciliation and the negotiation of shared commitments. However, the constitution-making process can also exacerbate divisions over the nature of the state and the fundamental values that define it (Lerner 2011: 1). A core challenge is to find ways to ensure that all people and groups have a meaningful voice in the constitution-making process. Myanmar has a diverse, multicultural and multi-religious population. The government officially recognises 135 ethnic groups classified into eight major groups: the Burman, Chin, Kachin, Kayin, Kayah, Mon, Rakhine and Shan. Other significant groups in Myanmar include Burmese-Chinese, Burmese-Indian and Rohingya peoples. While religious faith does not always neatly align with ethnic groups, most Burman, Rakhine, Shan and Karen peoples are Theravada Buddhists; Christianity is associated with the Chin, Kachin and some Karen peoples; and Islam mostly with the Rohingya people, although these are not the only Muslim people in Myanmar (Smith 1994: ch 2). Numerically speaking, the Burman ethnic group and Buddhism predominate: approximately 69 per cent of the population is Burman and almost 90 per cent Buddhist (Steinberg 2010: xxiv). A growing range of civil society groups seek to represent and advocate for the recognition and specific needs of women, young people, people with disabilities, and local communities. Since independence there has been ongoing armed conflict between the government and armed resistance organisations representing ethnic nationalities. The reasons for resistance are complex and vary between groups but include the desire for independence; protest against the lack of recognition of ethnic nationalities by the dominant Burmans; and control over territory and resources. While most groups have agreed ceasefires, political agreements that seek to address the root causes of the conflicts are yet to be negotiated. Myanmar has also experienced inter-communal conflict between indigenous Burmese people and those perceived as outsiders. In the past, violence has been directed towards

166 Anna Dziedzic and Cheryl Saunders Chinese and Indian settlers. Most recently, there has been a resurgence of violence between Muslim Rohingya and Buddhists, felt mainly in Rakhine state but with reverberations in other regions. While the central government condemned the violence, policies of both the central and state governments continue to discriminate against Rohingya people. Despite many having lived in Myanmar for generations, the government does not recognise the right of the Rohingya to citizenship, effectively rendering stateless most of the 800,000 Rohingya in the country. Laws restrict Rohingya freedom of movement, access to education and employment, and ability to marry and have children (Quintana 2013: 11–13). All these long-running conflicts have left a legacy of mistrust and inter-communal disharmony, which risk undermining democratic transition. Ethnic difference in Myanmar has important territorial and nationalist elements. Prior to colonisation, the people were divided into small, ethnically distinct kingdoms and tribal groups. People’s identity and loyalty remained predominately with their ethnic group and there was little notion of national identity outside of the group (Fredholm 1993: 20–21). Colonial rule accentuated the territorial and governmental distinctions between the ethnic groups. In the so-called ‘Frontier Areas’ the Chin, Kachin and Shan leaders retained administrative autonomy within their territories. By contrast, those areas in central Myanmar that had been part of the Burman kingdom were subject to direct British rule (Williams 2009: 1661). The area that came to be Karenni state (now called Kayah state) was recognised as independent and did not become part of Burma until 1948. These territorial distinctions are still reflected in the current division of Myanmar into the seven states that comprise the territories of major ethnic groups, and seven regions that are primarily Burman. The historical, social and geographical aspects of ethnic identity are such that Myanmar might be described as a plurinational state, comprising several territorially concentrated societies with distinct identities (Tierney 2004: 4–5; O’Leary 2005: 69). While this is not the only way of conceptualising ethnic diversity in Myanmar, it provides a framework to understand the particular claims made by ethnic groups, including in relation to constitution-making. Many ethnic nationalities regard the Panglong Agreement made in 1947 as Burma’s ‘founding compact’ in which separate ethnic groups agreed to join together on an equal basis (Yawnghwe 2002: 14). Myanmar’s ethnic nationalities are not now seeking secession but greater regional autonomy, representation and recognition within Myanmar. They have reiterated on many occasions their desire for a federal Constitution that recognises the plurinational nature of Myanmar and accords some degree of autonomy and self-government to the ethnic nationalities (Yawnghwe 2002; United Nationalities Federal Council 2013). The Challenge of Ownership and Considerations for Myanmar Deep divisions present challenges for constitution-making. These stem not only from the practical difficulties of reaching a compromise between groups that hold different, sometimes dramatically opposed, views on the substance of the constitution. They may also require a re-evaluation of the purposes of a constitution and the constitutionmaking process. Constitutions may play a role in both state-building and nationbuilding. They contribute to state-building by establishing institutions of the state and setting out their legal and political functions. To be successful, these institutions and rules must be regarded as legitimate. Today, legitimacy generally rests on the idea that

Constitution-making in Myanmar 167 the people, acting together, have sanctioned the institutions and powers of the state. Where there is a people that is sufficiently cohesive to act in this way, constitution-making is more straightforward but this is not always the case. Nation-building is necessary where differences between communities are so deep that they deny the existence of a ‘people’ that can act together to legitimate the apparatus and powers of the state (Bogdandy et al 2005: 585). Under these conditions, nation-building must develop a collective identity that can co-exist with the more particular identities held by different sections of the population (Haysom 2002: 218). Myanmar is such a state. Myanmar needs to find ways to build a national identity that is inclusive of all ethnic and religious groups. One potential approach is a policy of tolerance, in which human rights are guaranteed to all individuals, including rights not to be discriminated against on the basis of language, religion or race. Tolerance, however, maintains a divide between ‘we the people’ and minorities: those who are merely tolerated will never feel accepted as equal partners in the state community. An alternative approach is to ‘take cultural diversity seriously’ by valuing cultural difference and giving diverse groups ownership of the state (Fleiner 2005: 180–84). A sense of ownership of this kind can be fostered not only by the substance of a constitution but also by the process of constitution-making. The process of making or amending the Constitution can itself provide an opportunity to redefine a people. Meaningful involvement in constitution-making can diminish the sense of alienation of peoples of the state. An inclusive constitutional process can tackle causes of intra-state conflict and generate broad-based popular support for a democratic regime. At an individual level, participation in constitution-making is an expression of citizenship, and can foster a sense of membership of the community and ownership of its fundamental law. Where other views are drowned out by majority decision-making, participation may, however, be little more than symbolic. In divided societies, constitution-making processes can be adapted to promote inclusiveness, for example through the use of guiding principles or decision-making rules that work to temper the effect of bare majority decision-making. Such mechanisms are considered in the next part. To the extent that constitutions express national identity, ‘taking diversity seriously’ might be assisted by the expression of different constitutional identities at different levels of the state. The idea of federalism is controversial in Myanmar, as in some other parts of the world. Given the nature and history of ethnic diversity in Myanmar, some form of territorial autonomy is a logical conclusion, whether it is termed ‘federalism’ or not. In fact, ethnic nationalities in Myanmar have already proceeded down this path. In addition to their demands for a federal constitution at the national level, civil society groups from each state (many in exile) have engaged in a coordinated process of drafting state constitutions. This process was formalised by the United Nationalities League for Democracy (an umbrella organisation for ethnic nationalities’ political parties) and the Nationalities Democratic Front (comprising armed resistance organisations), which facilitated consultations within and between the committees, and organised workshops with international experts and overseas study tours (Sakhong 2003: 80ff). Country-wide constitution-making from the ground up is not entirely new, as demonstrated by examples from post-war Germany (Kramer 2005) and Southern Sudan (Murray and Maywald 2006). However, the coordinated drafting of state constitutions by civil society groups is, to our knowledge, a unique contribution to world constitution-making

168 Anna Dziedzic and Cheryl Saunders experience. While the process has had some critics (Win 2000), others have noted the benefits of providing an opportunity for different ethnic groups to negotiate underlying issues and cooperate through both intra- and inter-state dialogue (Htoo 2002). There has been a degree of success in this regard, for example, an agreed approach to federate rather than secede; and a move away from defining citizenship in ethnic terms in recognition of the multi-ethnic nature of state populations (Williams 2009: 1691). Working within a statebased process, rather than competing to draft a national constitution, has also assisted these groups to develop and formulate their own constitutional vision before joining members of pro-democracy and other civil society groups to produce a draft federal constitution at the national level (Yawnghwe 2003: 58). Constitution-making has particular significance in building ethnic national identity. For those who regard each ethnic group as a separate nation, state constitutions are a way of claiming a status akin to nationality and demanding political recognition on that basis. As such, state constitution-making is seen by ethnic nationalities as a necessary prerequisite for the kind of integrative federalism that best meets their demands for autonomy and self-determination. The challenge now is to design a constitution-making process for Myanmar as a whole that recognises the religious and ethnic diversity within both the national and subnational populations, including the distinctive case of the Rohingya, and allows all groups a voice.

OPTIONS FOR THE CONSTITUTION-MAKING PROCESS

There are many ways in which a constitution can be made or amended. Processes differ between states, influenced by tradition and contemporary circumstances. Even within states, procedures may vary over time. Myanmar’s own history illustrates the point. A Constituent Assembly made the 1947 Constitution; a National Assembly agreed constitutional principles to inform the 2008 Constitution; and the 1974 and 2008 Constitutions were approved at referendums. In Myanmar, as elsewhere, the constitutions of other states have been a resource, informing the substance of its three constitutions. In preparation for the 1947 independence Constitution, legal adviser Chan Htoon, travelled to New Delhi to observe the Indian Constituent Assembly. The drafting of the 1947 Constitution has been described as a ‘cut and paste’ affair, with provisions drawn from various world constitutions (Taylor 2008: 115, 248). Myanmar’s 1974 Constitution drew on Eastern European socialist constitutions (Steinberg 2010: 69). The principles approved for the 2008 Constitution were influenced by the structure and substantive provisions of Indonesia’s 1945 Constitution as it stood prior to democratic reforms (Renshaw 2013: 45–46). Whatever the detail of design, there are some standard functions to be performed in any major exercise in constitution-making. The parameters must be set, in what we describe below as ‘agenda setting’. Policy choices must be made in relation to institutions and principles. Agreed policies must be reduced to written, draft constitutional form. The instrument as a whole must be agreed in a manner that can give it effect as fundamental law. The performance of these functions requires a blend of technical expertise and political legitimacy. The blend may be accomplished in different ways: through a model in which a constituent assembly oversees the whole process, finally approving the Constitution; through a multi-stage process in which an initial draft is

Constitution-making in Myanmar 169 approved by a representative assembly; or by capping either process with a referendum in which the people as a whole have the final say. Other structures and combinations are possible. The design will depend in part on the choice between a new or amended constitution. Cross-cutting the entire process is an imperative for public knowledge, understanding and appropriate participation. There is no perfect process; the challenge is to agree on one that works for the state concerned. Agenda-setting An early step in any major exercise in constitutional change is to determine the scope of change, any constraints on what is done and the process through which it is to be pursued. This may be done in various ways: by setting terms of reference for a constitutionmaking body; prescribing principles with which the changes must comply; or stipulating a time frame and procedures for the process. Sometimes, an ‘interim Constitution’ is used for one or more of these purposes, as in South Africa and Nepal. Even where constitutional change occurs incrementally over time, as in Indonesia and Chile, those driving constitutional change inevitably set an agenda in which the scope and manner of constitutional change is prescribed. The agenda-setting phase is always significant. Where there has been a history of past conflict or exclusion it may also be critical to easing distrust between participants. In cases of this kind, prior agreement on principles and process can give all parties confidence to engage in the process, heightening the prospects of a satisfactory outcome (Widner 2008: 1533). The use of guiding constitutional principles in the agenda-setting phase is now a common practice (Brandt et al 2011: 2.1.8). Sometimes constitutional principles do not reflect agreement or consensus but are imposed unilaterally by a dominant group or majority in power. Thus, in Myanmar in 2008 the military essentially determined the 104 principles that were adopted by the National Convention and formed the basis of the 2008 Constitution (Steinberg 2010: 142–43). This example offers several lessons about the use of constitutional principles. While successful in the short term – in the sense of constraining the content of the Constitution – the exclusion of other groups from participation resulted in a Constitution that is seen as a partisan instrument, entrenching the interests of its makers. To take full advantage of the potential of the device of constitutional principles it is necessary to seek consensus between all significant parties, however challenging this may be. In determining the principles, it also is necessary to strike a suitable balance between guiding the structure of the constitution and leaving scope for public deliberation on matters of important principle. Where the initial formulation of principles is critical to establishing trust between key groups in a constitutional process there will be a question about how to ensure that the final Constitution complies with the principles. While compliance is sometimes left to the constitution-making body itself (Brandt et al 2011: 2.1.8), this may not be satisfactory where there is deep distrust between parties. South Africa developed a unique way of resolving this problem through external verification. The 34 constitutional principles were enshrined in an interim Constitution, which also established a new Constitutional Court tasked with determining compliance with the principles. The parties were committed to the process: when the Court found that the text initially submitted to it did not in fact

170 Anna Dziedzic and Cheryl Saunders comply, changes were made.1 In other cases, international involvement provides a measure of security for compliance. Examples include the 1991 Paris Peace Agreements for Cambodia, the 1993 Arusha Peace and Reconciliation Agreements for Burundi, and the 1995 Dayton Accords in relation to Bosnia and Herzegovina (Bell 2006: 391ff). Expertise Constitution-makers may draw on a range of expertise to develop and draft a constitution. In some cases, a draft is prepared by a Constitutional Commission comprising experts on constitutional issues as well as members selected for their knowledge, experience or ability to represent groups or interests within the community. Another option is for a larger constitution-making body, such as a parliament or constituent assembly, to establish a specialist expert committee with responsibility for providing legal advice or drafting the text of the Constitution. Some processes also include international experts in constitutional law or constitution-making, as was the case in Kenya in 2010 and Fiji in 2013. Others rely primarily on local expertise, drawing on international experience as required, as was the case in South Africa. The combination of expertise and distance from the political process might enable expert bodies to agree upon a draft in a way that a more politically driven process would make difficult. However, the implementation of the recommendations of an expert body will depend on its acceptance by political forces. Fiji’s recent constitution-making experience, discussed below, offers one of many instructive examples in this regard. Final Approval as Fundamental Law Any law-making process requires enactment by a body that is recognised as legitimate for this high purpose. Where the law will take effect as a constitution, the bar is higher still. The choice of the process depends, again, on whether the exercise involves amendment of an existing constitution or making a completely new constitution by which legal continuity is broken. In the former case, it is necessary to, at a minimum, follow the requirements for alteration laid down by the existing Constitution. Where the changes are major, however, additional procedures may be added to enhance the legitimacy of the process. Iceland is an example where, in the end, the changes failed. South Korea is another, attended by success. In Indonesia, by contrast, major constitutional changes were secured through a standing body, the People’s Consultative Assembly. In South Africa, constitutional continuity was maintained through an interim Constitution. Where a new constitution is made, the choice of the final process to give it legal effect is more open. It should be informed not only by what is feasible but also by what will be accepted as legitimate by those governed by it. An existing legislature may be used, if there is one that is regarded as legitimate, but this is not always the case in these circumstances. Where a legislature acts as the constitution-making body, approval by a special majority of members, at least, is likely to be considered necessary. A Constituent Assembly is often elected as the most straightforward path to capturing legitimacy. Even here, however, 1

Certification of the Constitution of the Republic of South Africa (1996) CCT 23/96.

Constitution-making in Myanmar 171 consideration is often given to how to ensure inclusion. One option is to adopt voting rules that vary from those for ordinary elections, an approach taken when electing the members of Nepal’s Constituent Assembly in 2008 (Interim Constitution 2007, art 63). Another option is to co-opt additional members in some way. For example, one-third of the members of Kenya’s National Constitutional Conference were representatives of religious groups, women’s groups, youth groups, the disabled, trade unions and NGOs (Constitution of Kenya Review Act 2001). A novel approach to representativeness has been adopted in Ireland, where a Constitutional Convention was recently established to make recommendations on changes to certain aspects of Ireland’s Constitution. The Convention consists of 33 parliamentarians and 66 citizens who were randomly selected so as to be broadly representative of Irish society. Where the Assembly is not elected, the challenge of ensuring broad representation on a basis that is considered legitimate is considerable. It is by no means impossible, however, if open processes, based on agreed principles, are used for the purpose. The recent constitutional process in Fiji provides an illustration of both the difficulty and significance of identifying a legitimate constitution-making body in the context of transition from military rule to democracy. A military coup in 2006 resulted in the suspension of Fiji’s Constitution. Fiji has since been ruled by an interim government, led by military commander Bainimarama. Promising to return the country to democracy by 2014, the government commenced a constitution-making process in 2012. Without a sitting parliament, Fiji had to seek an alternative constitution-making body. The government initially proposed a three stage constitution-making process. For the first stage, a Constitution Commission comprising five local and international experts would conduct public consultations and prepare a draft Constitution. In the second, a Constituent Assembly appointed by the government would consider the draft and adopt the Constitution. Following this, a panel of experts chaired by the Chief Justice would determine whether the Constitution complied with the principles and values stipulated by the government and the Constitution would come into effect upon presidential assent.2 In the event, however, the military government objected to the draft prepared by the Constitution Commission at the first stage and abandoned the proposed Constituent Assembly. Instead, it prepared its own draft, which was released for public comment and revised, before being given the force of fundamental law upon presidential assent. 3 Even under the process as originally proposed, a great deal rested on public perception of the Constituent Assembly as a truly constituent body, endowed with sufficient legitimacy to bring a constitution into effect as fundamental law. Promulgation by decree, however, removes every shred of legitimacy from the process by which the Constitution was made, which is not a promising start. It may well be, nevertheless, that public acceptance and the successful operation of Fiji’s new Constitution will cure the deficiencies in the constitution-making process over time. It may also be that, with hindsight, this Constitution will be seen as a transitional instrument, which, through incremental amendment, acquires legitimacy and popular support. However, the new Constitution sets a high bar for constitutional amendment, requiring the support of the Parliament and three-quarters of the vote at referendum. The problems posed by the shortfall in constitutional legitimacy coupled with the difficulty of constitutional change 2 Fiji Constitutional Process (Constitutional Commission) Decree 2012 (Decree 57 of 2012); Fiji Constitutional Process (Constituent Assembly and Adoption of Constitution) Decree 2012 (Decree 58 of 2012). 3 Fiji Constitutional Process (Adoption of Constitution) Decree 2013 (Decree 12 of 2013).

172 Anna Dziedzic and Cheryl Saunders are shared by Myanmar’s 2008 Constitution and will need to be recognised in any constitution-making process there. Decision-making Rules An important consideration at different stages of a constitution-making process concerns the decision-making rules and the mechanisms for resolving disagreements. Majority decision-making, which is the norm in other contexts, risks overwhelming minorities with a significant stake in the constitutional process. This charge has recently been made in Libya, where the Constituent Assembly is to comprise 60 members, drawn equally from the three former provinces. Of these seats, six have been allocated to women, and six are to be shared between three ethnic minority groups: the Amazigh, Tebu and Tuareg peoples. This arrangement has been criticised by representatives of these groups, who argue that, where the Assembly is to operate by majority vote, giving each group only two seats each is merely symbolic and denies them an effective voice. Instead, they seek a veto power in the Constituent Assembly over issues that directly affect their heritage and cultural rights. In determining constitutional questions about cultural issues, they prefer decision-making rules that require consensus (Eljarh 2013). Depending on the circumstances, there may be alternatives to consensus to ensure that all relevant interests have an effective say. One option is a super-majority, in which proposals require, for example, two-thirds or three-quarters of the vote in support. Another involves division of the population along territorial or other lines of interest, taking a separate vote in each unit, and requiring that at least a majority of units support the proposal. Different approaches may be used at different stages of the process. Consensus may be critical at the outset in the agenda-setting phase; a qualified majority or regional voting procedure may be satisfactory as the constitution nears completion. Possible mechanisms for this purpose can be gleaned from Constitutions designed to establish a federal form of government. In Australia, for example, in the 1890s, a ‘Constitutional Convention’ was elected by each of the participating colonies. Some very general constitutional principles were agreed by the Convention itself, as a basis for its work. The final draft was approved by an ordinary majority in the Convention, but was subject to referendum in each of the participating colonies. Approval by a majority of colonies was sufficient to proceed to the next stage but no colony would be incorporated into the new federation without approval of its people, through referendum. In the end, all six colonies agreed and the Commonwealth of Australia assumed its present form. That process is still reflected in the constitution alteration requirements. Amendments require the approval of a majority of the voters across Australia and a majority of the voters in a majority of the States. Such a pattern of decision-making rules with in-built protections and incentives could be adapted to the needs of a range of other constitutionmaking contexts where inclusion is a significant factor (Saunders 2005: 16). Public Participation Public participation is another cross-cutting feature of a constitution-making process. Participation in constitution-making has been claimed as an element of the right to

Constitution-making in Myanmar 173 participate in democratic governance more generally (Hart 2003: 1). It is all the more important in a divided society, where there is a history of exclusion. Participation is an expression of active citizenship that can assist to build a collective identity. Public participation in a constitution-making process may often occur through voting in an election for a legislature or constituent assembly, or in a referendum to approve the final text of a constitution. Typically, however, more is required. Even from a pragmatic point of view, where a draft constitution is subject to referendum it makes sense to involve the public earlier, to promote understanding of the issues and, ideally, to tailor the draft to meet public expectations and preferences. Where the public is not formally involved in the approval process at all, less formal means of participation become critical to establishing the political legitimacy of the Constitution. In any event, public involvement can build and sustain support for the Constitution and the institutions and principles it establishes. In divided communities, it can assist to engender a commitment to a shared system of government and thus to resolving divisions over time. There is now considerable world experience with public engagement in constitutionmaking. Experimentation continues: in Iceland, for example, the constitutional assembly harnessed new technology and ‘crowd-sourcing’ to encourage people to provide feedback and contribute ideas directly to the constitution-drafting process (Blokker 2012). As in any aspect of a constitution-making process, mechanisms for public involvement must be developed with the circumstances of the particular state in mind. It is, however, possible to suggest some general principles. Participation, in an appropriate form, should be considered in relation to all phases of the constitution-making process. Ideally, it should be combined with accessible briefings on constitutional issues and options, so as to enable the public to engage in an informed and effective way. Participation should be inclusive and the opportunity tailored to the needs of particular groups in terms of language, geography and the medium of communication. The involvement of civil society should be encouraged. Debate on the Constitution among citizens, as well as between citizens and the constitution-making bodies, should be open and free, with implications for any laws that restrict speech or assembly. Finally, the constitution-making body should listen to views expressed by the public, take them into account, and report publicly on whether, and, if so, how, they affected the final outcome. Public consultation should not be a formality or symbolic exercise. This overview of options for the constitution-making process identifies the kinds of considerations that should inform an effective and legitimate constitution-making process in Myanmar. If a new constitution is sought, there is value in prior, inclusive and public agreement on guiding principles for the constitution; and a map for the constitution-making process that includes the key elements of the design of the process, a rough timetable, decision-making rules, and opportunities for public participation. Even where an incremental approach to constitutional change is adopted, a measure of prior agreement on such issues will enhance the chances of success. In any case, the design of the process should be responsive to the current conditions and past history of Myanmar, including the legacy of division and distrust. This can be expected to influence all aspects of the process from the time the ‘agenda’ is set to its conclusion. In practice it is likely to extend further still, to the critical implementation period during which the Constitution takes effect.

174 Anna Dziedzic and Cheryl Saunders

INTERNATIONAL INVOLVEMENT

Constitution-making is immediately a matter for the state and its people. Increasingly, however, there is extensive international involvement of one kind or another in constitution-making in many states and pervasive international interest in procedures and outcomes. The phenomenon is not new. It has, however become more intense and assumed additional dimensions in conditions of globalisation in which constitutionmaking often is seen as integral to peace building, democratisation, and the protection of human rights and rule of law. International involvement in constitution-making takes many forms. In some cases, international factors drive constitutional change. In South Africa, for example, international opposition to apartheid caused the imposition of sanctions, which added to pressure for constitutional change. A requirement for constitutional change may be incorporated into an internationally brokered peace agreement, as in Bosnia and Herzegovina or Cambodia. Second, external actors often offer advice and support to local actors on questions of both constitution-making processes and the substance of a new constitution. In some cases – of which Fiji is an example – this extends to participation in the process itself. Third, external actors sometimes also assist at the implementation stage. Election monitoring and capacity-building to support new institutions are familiar examples. The aspect of international involvement most likely to be immediately relevant to Myanmar is the role of external actors in decisions about the process and substance of constitutional change. Whenever a developing country engages in a substantial constitution-making exercise, a huge amount of international assistance is offered from a variety of sources (Brandt et al 2011: 2.3.12). These include other states or groupings of states, international institutions such as the United Nations; regional organisations such as the European Union; the aid agencies of various foreign governments; international non-governmental organisations (INGOs); companies; universities; and individual advisers acting either directly or through other international actors (International IDEA 2011: 12). Myanmar is familiar with the international dimensions of a constitution-making process. We observed earlier that international models influenced Myanmar’s three Constitutions. More recently, international actors were involved in the state constitution-making processes that we described above (Sakhong 2003: 80–89). Recent reforms have opened the door to international organisations and foreign governments who were excluded by the former regime. As a result, both the number and kind of international actors in Myanmar has markedly increased (IBA 2012: 26; Saha 2011). Several overseas academic institutions have conducted seminars and provided advice on constitutional change and institution-building in Myanmar.4 International organisations have conducted research and made recommendations on rule of law and constitutional reforms (Perseus 2013; IBA 2012, United States Institute of Peace 2013). The question for 4 For example, Sydney Law School (2013) conducted a workshop on Constitutional Reform in Yangon in May 2013; a professor from Columbia Law School provided advice to members of Myanmar’s Parliament on constitutional change in March 2013 (Columbia Law School 2013); and members of Indiana University’s Center for Constitutional Democracy have advised groups on constitutional reform and drafting since 2003 (Williams 2009: 1675).

Constitution-making in Myanmar 175 Myanmar is how best to draw on this profusion of advice as it embarks on any constitution-making exercise. The Challenge of International Involvement and Local Ownership External actors can bring valuable expertise and insights to a constitution-making process. They can offer knowledge about issues and options, in the light of the experience of others. They can provide information about how broadly similar constitutional problems have been handled elsewhere. Depending on their comparative knowledge, they may have insight into the way in which constitutional arrangements in other countries work in practice. They can help to build the capacity of local actors to understand, negotiate and draft constitutional provisions at the state or sub-state levels (Williams 2009: 1686). International involvement can also generate tensions and problems in the constitutionmaking process. Foreign actors do not always understand or appreciate the significance of the local context, language or traditions of the constitution-making state. International advisers from developed states may bring perspectives on constitutions and constitutionalism that do not suit a country in transition. They do not always anticipate the consequences of transplanting institutions and principles from one context to another. Advisers with international legal expertise may not fully appreciate the potential for variation in the way in which international standards are given domestic effect (Al-Ali 2011: 84–85). International actors may also have divided loyalties. Foreign governments, international organisations and INGOs involved in supporting constitution-making are accountable to donors in ways that may affect the performance of their responsibilities to the host state. Donors typically have goals that include rights protection, equality and democratisation. Success in delivering these outcomes is often measured in terms of impact on the substance of the Constitution, irrespective of implementation. The recent constitution-making exercise in South Sudan illustrates the point. Various INGOs have claimed success in influencing, and even drafting, human rights provisions of South Sudan’s new Constitution (Cope 2013: 304–05). Limited funding cycles and time frames can also hamper the ability of international actors to make a meaningful contribution. International IDEA (2011: 11) makes a distinction between constitution-making and constitution-building. While constitution-making focuses on the particular moment of constitutional change, constitution-building encompasses the context and processes before constitutional change as well as its implementation. The desire to demonstrate results can encourage the perception that the moment of constitutional change is the successful conclusion of the process, when in reality constitution-building is a much larger exercise. International involvement in constitution-making has even been portrayed as a check on the self-interested behaviour of local actors (for example, Cope 2013: 317). This surely is misguided in its paternalism and sense of superiority. Importantly, such attitudes diminish local ownership in a constitution-making process and the resultant constitution. They risk reducing local ownership to ‘their ownership of our ideas’ (Boege et al 2009: 29) and potentially undermine local acceptance and legitimacy of the new constitution. Local ownership is critical to the successful implementation of the Constitution.

176 Anna Dziedzic and Cheryl Saunders Sustainable institutions are more likely where local actors have been involved in their design from the outset. Considerations for Myanmar: A Role for ASEAN? These tensions raise significant questions for Myanmar about how best to take advantage of international assistance. In principle, the answers are obvious. External support should be provided in partnership with, and at the request of, local actors. Local and international actors should work together to ensure that the latter contribute relevant knowledge and skills without pre-empting local choice. Ideally, external actors should be people and organisations with global knowledge, a comparative approach and familiarity with Myanmar’s own circumstances. Consideration of the longer term suggests that Myanmar might benefit from those with expertise in a mandate for, and time commitment to, constitution-building, as opposed to constitution-making. Given the challenges, it may be that the Association of South East Asian Nations (ASEAN), its member states and experts from those states might have a particular role to play in Myanmar’s constitution-making process (see generally Renshaw, this volume). ASEAN was formed as a regional economic grouping in 1967. Its original membership of five states has now grown to 10,5 as it has evolved into an organisation focusing on regional peace, security and stability. Membership of ASEAN does not depend on states meeting shared political values, enabling Myanmar to become a member in 1997, despite military rule. ASEAN’s involvement and influence in Myanmar has evolved over time. Some ASEAN members publicly criticised Myanmar in 2003 after the arrest of Aung San Suu Kyi, and again in 2007 after the violent repression of the Saffron Revolution (Renshaw, this volume). Even so, ASEAN has continued to be supportive of Myanmar, in contrast to its condemnation and isolation by Western states. Since Myanmar’s government commenced its reforms in 2010, ASEAN has played a limited, but significant, role. In 2011 Myanmar was awarded the chairmanship of ASEAN for 2014. This sent an important signal, both within Myanmar and internationally, that ASEAN has confidence in the government’s reforms, particularly given that Myanmar agreed not to take up chairmanship in 2006 (Renshaw 2013: 41–44). Many ASEAN states have themselves had to deal with authoritarian rule, transitions to democracy, military coups and conflict and reconciliation with ethnic minorities. Indonesia is an example, noted earlier in this regard. A regional approach to international assistance in constitution-making has several potential advantages. Constitutional transplants, both procedural and substantive, from a state that shares some historical, social, economic, and perhaps cultural, context may be more likely to succeed than transplants from states which do not share so much. ASEAN member states are likely to have a greater understanding of the context of Myanmar’s transition as well as direct experience of constitution-making in times of transition. Finally, ASEAN has had, and will continue to have, an ongoing and long-term engagement with Myanmar based on its regional relationship rather than any particular outcome of Myanmar’s transition or constitution-making process. Because this relationship will not end as soon as there is a 5 The member states are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam.

Constitution-making in Myanmar 177 ‘new’ Constitution, ASEAN members are in a unique position among external actors to assist Myanmar as it builds its Constitution and consolidates democratic reforms. CONCLUSION

Constitutional change is a significant event for any state. It is all the more significant when it accompanies transition from authoritarian rule. It presents challenges but is also a period of great opportunity. Over the past 30 years, many states from all regions of the world have engaged in constitution-making. Some of these exercises have been highly successful; others less so. The complex phenomenon of constitution-making is not fully understood and there are different views on why some new Constitutions prove more successful than others. Nevertheless, collectively, this body of experience is a useful resource. It provides insight into issues that are likely to arise in many constitutionmaking projects and the solutions that might be adapted to assist to resolve them. The purpose of this chapter has been to provide a framework for understanding and adapting world constitution-making experience to the circumstances of Myanmar, if and when it decides to proceed with substantial constitutional change. It has grouped some of the principal insights that arise from world experience around four issues most obviously relevant to Myanmar: the choice between constitutional amendment and renewal and the speed of constitutional transition; the challenges of internal divisions; the design of a constitution-making process; and the relevance and role of international advice. In relation to each of these, international practice is diverse. Some principles are relatively constant however. At their heart lies the need for broad ownership of both the process of constitution-making and its outcome, in the interests of the legitimacy of the Constitution and its effectiveness over time. Assumptions about universalism are inevitable at a time of globalisation, marked by the increasing interdependence of the states of the world. Major human rights norms have now been acknowledged by most states. Similar institutions of government appear in diverse states. Practices and information are freely shared. To some extent, however, the appearance of convergence is superficial and can be misleading. In reality, every constitution-making process is unique. Each state and its peoples have a distinctive history and face real contemporary challenges of their own, which a constitution-making process must reflect. The insights from world experience, such as they are, must be adapted to suit local context. Final choices must be made by those within Myanmar, who are familiar with its conditions and must live with the constitutional solutions. REFERENCES Al-Ali, Z (2011) ‘Constitutional Drafting and External Influence in Comparative Constitutional Law’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law (Cheltenham, Edward Elgar). Bell, C (2006) ‘Peace Agreements: Their Nature and Legal Status’ 100 American Journal of International Law 373. Blokker, P (2012) ‘Grassroots Constitutional Politics in Iceland’, http://ssrn.com/abstract=1990463. Boege, V, Brown, A; Clements, K and Nolan, A (2009) ‘On Hybrid Political Orders and Emerging States: What is Failing – States in the Global South or Research and Politics in the West’ 8 Berghof Handbook Dialogue 15.

178 Anna Dziedzic and Cheryl Saunders Bogdandy, A, Häußler, S and Hanschmann, F (2005) ‘State-Building, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Different Approaches’ 9 Max Planck Yearbook of United Nations Law 579. Brandt, M, Cottrell, J, Ghai, Y and Regan, A (2011) Constitution-Making and Reform: Options for the Process (Geneva, Interpeace). Columbia Law School (2013) ‘Press Release: Nobel Peace Prize Laureate in Burma Turns to Morningside Heights for Legal Advice’, 11 March, www.law.columbia.edu/media_inquiries/ news_events/2013/march2013/prof-cleveland-burma-seminar. Cope, KL (2013) ‘South Sudan’s Dualistic Constitution’ in D Galligan and M Versteeg (eds), The Social and Political Foundations of Constitutions (Cambridge, Cambridge University Press). Eleven Myanmar (12 May 2013) ‘Remove Severe Restrictions First to Amend Myanmar’s Constitution: Suu Kyi’, www.elevenmyanmar.com/politics/3439-remove-severe-restrictions-firstto-amend-myanmar-s-Constitution-suu-kyi. Eljarh, M (2013) ‘A Bad Omen for Libya’ Foreign Policy: Transitions, The Democracy Lab Blog, 18 July, http://transitions.foreignpolicy.com/posts/2013/07/18/a_bad_omen_for_libya. Elster, J (1995) ‘Forces and Mechanisms in the Constitution-Making Process’ 45 Duke Law Journal 364. Fleiner, T (2005) ‘The Challenge of Ethnic Diversity to Federalism’ in JF Gaudreault-DesBiens and F Gélinas (eds), Le Fédéralisme dans tous ses États: Gouvernance, Identité et Méthodologie (Cowansville, Éditions Yvon Blais). Fredholm, M (1993) Burma: Ethnicity and Insurgency (Westport, CT, Praeger). Hart, V (2003) Democratic Constitution Making, Special Report 107 (Washington, United States Institute of Peace). Haysom, N (2002) ‘Constitution Making and Nation Building’ in R Blindenbacher and A Koller (eds), Federalism in a Changing World: Learning from Each Other (Montreal and Kingston, McGill-Queen’s University Press). Htoo, A (2002) ‘In Search of a Constitution for Burma’ 11 Legal Issues on Burma Journal. IBA (International Bar Association) (2012) Rule of Law in Myanmar: Challenges and Prospects (London, International Bar Association). Indrayana, D (2008) Indonesian Constitutional Reform 1999–2002: An Evaluation of ConstitutionMaking in Transition (Jakarta, Kompas Book Publishing). International IDEA (2011) Constitution Building after Conflict: External Support to a Sovereign Process (Stockholm, International IDEA). Klug, H (2007) ‘Constitution-making, Democracy and the “Civilizing” of Irreconcilable Conflict: What Might We Learn from the South African Miracle?’ 25 Wisconsin International Law Journal 269. Kramer, J (2005) ‘Federal Republic of Germany’ in J Kincaid and GA Tarr (eds), Constitutional Origins, Structure, and Change in Federal Countries (Montreal and Kingston, McGill-Queen’s University Press). Lerner, H (2011) Making Constitutions in Deeply Divided Societies (Cambridge, Cambridge University Press). Lindsey, T (2002) ‘Indonesian Constitutional Reform: Muddling Towards Democracy’ 6 Singapore Journal of International and Comparative Law 244. Merco Press (10 June 2013) ‘Bachelet Pledges New Legitimate, Transparent Constitution, Plus Fiscal and Education Reforms’, http://en.mercopress.com/2013/06/10/bachelet-pledges-newlegitimate-transparent-Constitution-plus-fiscal-and-education-reforms. Middleton, J (2013) ‘Interview with President Thein Sein’, Australia Network, 18 June, http:// australianetwork.com/focus/s3777956.htm. Montes, JE and Vial, T (2005) The Role of Constitution-Building Processes in Democratization: Case Study Chile (Stockholm, International IDEA).

Constitution-making in Myanmar 179 Murray C and Maywald C (2006) ‘Subnational Constitution-Making in Southern Sudan’ 37 Rutgers Law Journal 1203. O’Leary, B (2005) ‘Power-Sharing, Pluralist Federation, and Federacy’ in B O’Leary, J McGarry and K Salih (eds), The Future of Kurdistan in Iraq (Philadelphia, University of Pennsylvania Press). Partlett, W (2012) ‘The Dangers of Popular Constitution-Making’ 38 Brooklyn Journal of International Law 193. Perseus Strategies, New Perimeter and Jacob Blaustein Institute for the Advancement of Human Rights (2013) Myanmar Rule of Law Assessment, www.burmapartnership.org/2013/03/myanmarrule-of-law-assessment/. Ponnudurai, P (2013) ‘Suu Kyi Pushes Constitutional Changes before 2015’ Radio Free Asia, 10 May, www.rfa.org/english/news/myanmar/charter-05102013184110.html. Quintana, TO (2013) Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, United Nations Human Rights Council A/HRC/22/58, 6 March. Renshaw, CS (2013) ‘Democratic Transformation and Regional Institutions: The Case of Myanmar and ASEAN’ 1 Journal of Current Southeast Asian Affairs 29. Sacaan, Soraya (25 March 2014) ‘The “Protest of All Protests” Calls for Constitutional Reform in Chile’, http://globalvoicesonline.org/2014/03/25/the-protest-of-all-protests-calls-forconstitutional-reform-in-chile/. Saha, SR (2011) Working through Ambiguity: International NGOs in Myanmar (Cambridge, MA, The Hauser Center for Nonprofit Organizations, Harvard University). Sakhong, LH (2003) ‘Report of State Constitutions Drafting Process’ in C Yawnghwe and LH Sakhong (eds), Federalism, State Constitutions, and Self-Determination in Burma (Chiang Mai, UNLD Press). Saunders, C (2005) ‘Commonwealth of Australia’ in J Kincaid and GA Tarr (eds), Constitutional Origins, Structure and Change in Federal Countries (Montreal and Kingston, McGill-Queen’s University Press). Smith, M (1994) Ethnic Groups in Burma: Development, Democracy and Human Rights (London, Anti-Slavery International). Steinberg, DI (2010) Burma/Myanmar: What Everyone Needs to Know (Oxford, Oxford University Press). Sydney Law School (2013) ‘Myanmar Constitutional Democracy Workshop’, 8–10 May, Yangon. Taylor, RH (ed) (2008) Dr Maung Maung: Gentleman, Scholar, Patriot (Singapore, Institute of Southeast Asian Studies). Tierney, S (2004) Constitutional Law and National Pluralism (Oxford, Oxford University Press). United Nationalities Federal Council (2013) Statement of the Ethnic Nationalities Conference, 2 August, www.burmapartnership.org/2013/08/statement-of-the-ethnic-nationalities-conference/. United Nations Secretary-General (2009) Guidance Note of the Secretary-General: United Nations Assistance to Constitution-Making Processes, www.unrol.org/doc.aspx?n=Guidance_Note_ United_Nations_Assistance_to_Constitution-making_Processes_FINAL.pdf. United States Institute of Peace (2013) ‘USIP Burma/Myanmar Rule of Law Trip Report, Working Document for Discussion’, June, www.usip.org/olivebranch/burma-rule-of-law-reform-usipwork-in-progress. West, JM and Baker, EJ (1988) ‘The Constitutional Reforms in South Korea 1987: Electoral Processes and Judicial Independence’ 1 Harvard Human Rights Yearbook 135. Widner, J (2008) ‘Constitution Writing in Post-Conflict Settings: An Overview’ 49 William and Mary Law Review 1513. Williams, DC (2009) ‘Constitutionalism before Constitutions: Burma’s Struggle to Build a New Order’ 87 Texas Law Review 1657. Win, KM (2000) ‘Rival Constitution-Writing Processes: A Problem in National Reconciliation in Burma’ 7 Legal Issues on Burma Journal 21.

180 Anna Dziedzic and Cheryl Saunders Yawnghwe, C (2002) ‘State Constitutions, Federalism and Ethnic Self-Determination’ in International IDEA, The Role of State Constitutions in Protecting Minority Rights under Federalism: Dialogues in Support of a Democratic Transition in Burma (Stockholm, International IDEA). —— (2003) ‘Foreword’ in C Yawnghwe and LH Sakhong (eds), Federalism, State Constitutions, and Self-Determination in Burma (Chiang Mai, UNLD Press). Yeh, J and Chang, W (2009) ‘The Changing Landscape of Modern Constitutionalism: Transitional Perspective’ 4 National Taiwan University Law Review 145.

10 Legislative Foundations of Myanmar’s Economic Reforms SEAN TURNELL

M

YANMAR’S JOURNEY FROM the richest to the poorest country in Southeast Asia was propelled by many factors, and not the least of these was the dismantling of the legal infrastructure necessary for a properly functioning market economy. Property rights, laws conferring legal tender, land laws, banking laws, foreign exchange laws – all of these and more were traduced during the 50 or so years that Myanmar existed under the grip of what was, from its beginning in a coup in 1962, an especially erratic form of military rule. Now Myanmar seems at last to be on the threshold of change. The installation of a quasi-civilian government in 2011 has brought with it much political and social progress, even as many problems in both of these arenas persist. It is listed as one of the ‘basic principles’ of the 2008 Constitution that ‘the economic system of the Union is [a] market economy system’.1 An unnecessary (and therefore, largely absent) declaration in most Constitutions, Myanmar’s chronically unstable economic foundations makes its insertion more than perfunctory. In the economic arena, progress has also been made and reforms enacted that point in the direction of better times ahead. Along the way, certain foundational legal reforms of an economic nature have been implemented. These include legislation relating to foreign investment, central banking, microfinance and the establishment of Special Economic Zones, as well as a slew of less consequential regulations. In order to deliver the necessary legal infrastructure to underpin a functioning market economy, Myanmar’s quasi-civilian government has initiated a number of new laws, repealed others, and promised more legislation to come. In this chapter I consider a selection of new laws that have actually been promulgated, rather than those merely promised.2 Considered in turn are the new Foreign Investment Law, the Central Bank of Myanmar Law, the Microfinance Law, and laws to establish Special Economic Zones, as well as actions to repeal restrictions on foreign exchange. The strengths and weaknesses 1 The indefinite article in parenthesis here is missing in the official English translation of Myanmar’s Constitution, which is available at the website of the Office of the President, www.president-office.gov.mm. 2 Other laws with a bearing on Myanmar’s economy, but peripherally or concerned with procedure rather than ‘fundamentals’, include the Labour Organisation Law No 7/2011; the Environmental Conservation Law No 9/2012; the Administration of Vacant, Fallow and Virgin Lands Law No 10/2012; the Farmland Law No 11/2012; the Import-Export Law No 17/2012; and the Foreign Exchange Management Law No 12/2012. The last of these is yet to be completely applied by implementing rules and regulations. There is also an array of new laws promulgated by Myanmar’s new government relating to taxation and other revenue measures.

184 Sean Turnell of these laws will be assessed, as will their impact. The chapter argues that, as important as many of these laws are, deep questions of implementation, of necessary complementary legislation, and of broader credibility remain. All in all, a useful start has been made to crafting laws to underpin Myanmar’s economic progress but much ‘heavy lifting’ remains. FOREIGN INVESTMENT LAW

Domestic legislation on foreign investment is a key, often decisive, component of a country’s relative attractiveness as a destination for international capital. This is especially important for a transition country such as Myanmar, where policy on this front has historically been both unwelcoming and restrictive. A new Foreign Investment Law No 21/2012 was finally signed into law by President Thein Sein in November 2012. Using Vietnam’s Foreign Investment Law as a starting point, the legislative drafters’ intention for the Foreign Investment Law was to make Myanmar a more attractive destination to investors abroad, while at the same time protecting certain sensitive sectors. It is a Law that contains several seemingly contradictory themes that are meant to blend, however, in a way ‘to support businesses that cannot yet be run by the state and citizens, or businesses that have insufficient funds and technology’ (s 8a). The inducements in the Foreign Investment Law to attract foreign investors include: • an income tax exemption for foreign investors for the first five consecutive years of their business; • further income tax exemptions on profits that are re-invested; • accelerated depreciation tax deductions; • tax relief on profits deriving from exports; and • relief from customs duties on materials imported during the construction of a business, or as inputs (s 27). Beyond these generous taxation concessions are other enticements, including a necessary guarantee to foreign investors that their businesses will ‘not be nationalized within the term of contract’ (s 28). Also necessary are assurances with respect to access to land, the ownership of which in Myanmar has long been prohibited to foreigners. The land ownership prohibition remains, but the Foreign Investment Law now allows long leases by foreign investors – up to 50 years depending on the nature of the business concerned, with two possible 10-year extensions beyond that (ss 31 and 32). Meanwhile, a range of concessions are granted with respect to the movement of funds in and out of Myanmar, including allowing the maintenance of foreign currency accounts in any bank with a foreign exchange licence, and the repatriation of profits and capital contributions (at the expiry of a project) in the original currency in which they were subscribed (s 29). Accompanying the concessions and rights assigned under the Foreign Investment Law are certain obligations too, of which the most significant are that enterprises permitted under the Foreign Investment Law must be incorporated as a company under existing Myanmar laws (s 17b); only Myanmar citizens are permitted to be appointed to unskilled positions in a foreign-owned/joint venture enterprise (s 24c); and Myanmar citizens must constitute at least 25 per cent of an enterprise’s skilled workforce during the first

Legislative Foundations of Myanmar’s Economic Reforms 185 two years of its existence, 50 per cent by the end of the next two years, and 75 per cent by the end of year six (s 24a).3 Types of Foreign Investment Allowed The Foreign Investment Law also outlines the range of activities within which foreign investors can engage, as well as those restricted or qualified in various ways. In essence, there are three main ways by which foreign investment can take place under the Foreign Investment Law; as fully foreign-owned enterprises; as enterprises in which foreign investors must enter into a joint venture with a local Myanmar partner; and as enterprises in which foreign investment is permitted (100 per cent equity or joint venture), but only after special approval and/or the application of particular conditions (s 9). With respect to those investments in which 100 per cent foreign ownership is permitted, approval is still required by a new body, the Myanmar Investment Commission (MIC), and other requirements as determined by particular ministries, where relevant. Of course, investments are also supposed to meet environmental, labour and other guidelines determined for individual industries according to local laws. The ratio of foreign/local ownership of joint venture investments is open to negotiation under the Foreign Investment Law, with the proviso that the foreign equity share of a project cannot exceed 80 per cent. Among the activities subject to the joint venture requirements are:4 • the production and distribution of most food and beverages; • the production and distribution of most chemicals, pharmaceuticals, rubber and plastics; • the development and construction of infrastructure, commercial buildings, houses and apartment buildings; and the production of concrete and other construction materials; • all ‘large’ mining projects; • airlines, shipping and shipbuilding; • private hospitals and medical clinics; and • tourism businesses. Some foreign investment projects (wholly foreign-owned or joint venture) require special permission and/or are granted on the basis of certain conditions. Projects that involve forestry and timber; large-scale mining projects; transportation; construction; and coal exploration and exploitation all require joint venture with government. They include hotels which, if 100 per cent foreign-owned, must be rated ‘three star or above’. They also include projects related to banking and insurance, telecommunications, electricity generation and other activities otherwise restricted according to the (un-repealed) State-Owned Economic Enterprises Law; retail trading, which is only allowable from 2015 and is restricted to investments of at least US$3 million; and the construction and 3 This requirement surprised many foreign observers, and at the time of the Foreign Investment Law’s promulgation attracted much negative commentary. 4 The list of economic activities ‘allowed only in the form of Joint Venture with Myanmar Citizens’ is contained in a directive of the MIC, ‘Classification of Types of Economic Activities’, Notification No 1/2013, Myanmar Investment Commission, 31 January 2013.

186 Sean Turnell operation of commercial office buildings (the local partner must provide the land for the long-term lease).5 Finally, there is a range of activities in which foreign participation in any form is disallowed. Prohibited activities for foreign investors include small-scale and limitedtechnology oil exploration and mining; small-scale agricultural, horticultural and fisheries activities using limited technologies; small retail businesses; printing and publishing of Myanmar (and ethnic nationality) language periodicals, as well as broadcasting in the same; activities that are detrimental to the environment, biodiversity or public health; and activities that involve the use of untested and unapproved technologies and processes. 6 Delays and Controversies The passage of the new Foreign Investment Law came about only after prolonged negotiation and controversy. Especially vocal in the debate were local businesses who expressed great anxiety that they would not be able to compete against foreign firms with abundant capital and modern methods and technologies. This protectionist sentiment was made patent (after great pressure from a number of prominent local conglomerates, applied particularly to Shwe Mann, the Speaker of the Lower House of Parliament) following the distribution of a draft of the Foreign Investment Law that emerged in August 2012. This draft contained a number of clauses designed to protect domestic interests, including a minimum capital threshold for foreign investment of US$5 million (which removed in one stroke any hope for many small-scale diaspora investors), and the sequestering away into ‘restricted business’ of a whole range of economic activities that could only be done by locals or foreigners in a joint venture with a local enterprise (and within which the foreign ownership stake could not exceed 49 per cent). The outcry against the August draft of the Foreign Investment Law came quickly and loudly, and potential foreign investors made clear their view that this was a backward step in Myanmar’s opening to the world. Nevertheless, it was the objections of local political figures (and some of the more outwardly focused business leaders) that proved more decisive. Concerned that this highly protectionist variant of the Foreign Investment Law was little but an attempt of Myanmar’s high-profile ‘cronies’ to carve up sectors of the economy for themselves, a countervailing campaign in the Parliament (consisting of a broad coalition of forces, including Aung San Suu Kyi and the National League for Democracy, NLD) steered the Foreign Investment Law back in a more liberal direction. Notwithstanding this compromise and the various enticements detailed above, parts of the Foreign Investment Law continue to trouble international investors and others. Pre-eminent among the remaining concerns is the role of the aforementioned MIC, the body to which the Foreign Investment Law assigns approval and oversight for foreign investment in Myanmar. With a powerful mandate allowing great discretion, it is the MIC that exclusively decides (s 13):

5 These extra conditions and permissions are also contained in the directive of the MIC above, ‘Classification of Types of Economic Activities’, Notification No 1/2013, Myanmar Investment Commission, 31 January 2013. 6 ‘Classification of Types of Economic Activities’, Notification No 1/2013, Myanmar Investment Commission, 31 January 2013.

Legislative Foundations of Myanmar’s Economic Reforms 187 • exceptions to the ‘restricted’ foreign investment categories; • the degree of foreign ownership permitted in joint ventures in sectors requiring special permissions; • which foreign investment activities qualify for taxation concessions; • which foreign investments are entitled to long land leases, and the extensions of these; • any exceptions to the ratios of local skilled labour mandated;7 and • whether foreign ownership stakes can be sold or transferred to other foreign parties. Meanwhile, according to the Foreign Investment Law (s 49), ‘decisions of the [MIC] . . . shall be final and conclusive’, which means that they cannot be challenged in a court. Of course, many of the powers granted to the MIC are not inherently problematic, especially if carried out in a non-discriminatory and transparent way, accompanied by appeal mechanisms and parliamentary oversight. Such processes and mechanisms are not apparent, however, in the MIC as presently constituted. The ‘riding instructions’ for the MIC contained within the Foreign Investment Law are as vague as they are farreaching. Membership of the MIC is decided solely by the government and, beyond two reports that must be tabled before the Parliament each year, the Commission is unaccountable (s 12). These governance gaps are concerning. In a business environment such as Myanmar’s, emerging from decades of arbitrary and erratic decision making, periodic nationalisation episodes and macroeconomic instability, bodies such as the MIC face a herculean task in building trust in a setting hitherto marked by a profound lack of this virtue. To some extent this concern has been masked by the fact that the first two appointees as Chairman [sic] of the MIC, respectively the so-called ‘super minister’ in charge of economic matters, U Soe Thane, and the Finance Minister, U Win Shein, are both of a liberal reformist bent. Such personalised authority in Myanmar has long counted as among the country’s most significant policy problems. Meanwhile, criticism continues within Myanmar that the Foreign Investment Law grants too many concessions to foreign investors. Some of this criticism comes from what are, in essence, domestic crony and quasi-monopoly businesses with little more than vested interest to back up their opposition, but other criticism comes from more objective parties, including Myanmar’s economists. Here the principal concern is over the loss of tax revenue from the various inducements noted above, all in a country in which the absence of stable fiscal arrangements is amongst the most serious and intractable of economic problems. Most foreign investors who are interested in Myanmar are confident they can earn high returns in a market that has been closed for so long. For them, tax concessions are perhaps not such a major factor in their decision making but for Myanmar’s tax system they could indeed be important. Tax concessions give up revenue for a government without enough of it, while the loopholes they create make for a tax system that loses the virtues of simplicity and non-discrimination. They also open up opportunities for tax avoidance, including by local firms using overseas subsidiaries to make investments on their behalf. 7 In the earliest and most liberal drafts, the ratio of skilled workers who must be Burmese citizens in a foreign venture was stipulated to be 25, 50 and 75 per cent after 5, 10 and 15 years respectively. As shall be seen, these are the ratios that apply to Myanmar’s SEZ laws. In the ‘protectionist’ August draft of the Foreign Investment Law the intervals for these benchmarks were shortened to 2, 4 and 6 years. They remain the same in the final version of 2 November. The MIC can waive these requirements, and the Foreign Investment Law makes special note of exemptions for high-technology sectors. Nevertheless, the issue remains one of concern to many potential international investors interviewed by the author in Yangon and Naypyidaw in July and November 2013.

188 Sean Turnell

A NEW CENTRAL BANK OF MYANMAR LAW

On 11 July 2013 President Thein Sein signed off on a new Central Bank Law. The product of numerous drafts and no little controversy (much as in the manner of the Foreign Investment Law earlier), the new Central Bank of Myanmar Law No 16/2013 holds out the promise of transforming the country’s monetary and financial framework. Whether it will do so or not will depend upon many variables. Not the least of these, however, will be the degree to which the Central Bank truly has independence to pursue monetary and financial stability, rather than simply assuming the role historically assigned to it of being the vehicle for financing the state. Yet, for all of this, the new Central Bank Law represents material progress. The ‘Independence’ Question The aim of the Central Bank Law is to establish the legal independence of the Central Bank of Myanmar and, of perhaps even greater importance, the perception of such independence within and outside the country. The ‘old’ Central Bank Law, promulgated in 1990, contained within it many of the ‘technical’ aspirations and methodologies of international-standard central banking (few of which were ever implemented), but it entirely lacked the now de rigueur notion of independence.8 Under the 1990 Central Bank Law, the Central Bank was a unit of the Ministry of Finance and Revenue, and in practice was little more than a financing vehicle for Myanmar’s chronic fiscal deficits. From its creation in 1990, the Central Bank seldom supplied less than half the government’s funding needs under various technical arrangements, all of which in essence constituted ‘money printing’ on a vast scale.9 The core of the new Central Bank Law consists of a number of measures that assert the Central Bank’s autonomy from the Ministry of Finance and Revenue and its spendthrift past. The Governor of the Central Bank is elevated to the level of a Minister of the Cabinet (s 108). An initial plan to make the Central Bank even more independent of the government by making the institution a ‘Union-level’ body, similar in status to the Auditor General’s Office (part of the executive branch of government, but apart from Cabinet), was shelved, as it would have required constitutional amendment. A board of directors is to be the Central Bank’s ultimate internal decision-making body. Chaired by the Governor of the Central Bank, it will comprise nine members. Four of these (the Central Bank Governor and three newly-created Deputy Governor positions) will be from within the Central Bank itself, the other five being ‘external professional experts selected by the government’, and approved by the Parliament (s 9). Directors cannot be members of Parliament or a political party nor can they hold more than 5 per cent equity in a corporation (s 10). The expertise of the five external directors must be in operational areas of central banking – namely, economics, finance, banking law, accounting and/or 8 The former Central Bank of Myanmar Law No 15/1990 was automatically repealed upon the promulgation of the new Law (s 118). It said ‘rules, regulations, by-laws, orders and directives made or issued under the repealed Bank Law . . . or under any other power [sic] shall, in so far as they are not contradictory to the provision of this [new] law, continue to have effect’ (s 119, emphasis added). The practical impact of this provision remains to be seen. 9 For more on the scale and scope of the Central Bank’s money printing, see Turnell (2009).

Legislative Foundations of Myanmar’s Economic Reforms 189 auditing. The Deputy Ministers of the Departments of Finance and Revenue and National Planning and Economic Development are permitted to attend the monthly meetings of the Board but are not allowed to take part in its deliberations (s 21e). The Governor and Deputy Governors of the Central Bank enjoy a degree of security of tenure. Their appointments, made by the President but requiring parliamentary approval, can only be terminated on the basis of voluntary resignation; breaches of the appointment requirements (being convicted of a crime occasioning imprisonment or acquiring equity ownership in excess of the 5 per cent limit); missing more than three consecutive board meetings; or being the subject of a Presidential finding that they are ‘incapable of discharging’ their duties. The term of office for the Governor of the Central Bank is five years, and that of directors is four years. Both the Governor and directors can serve only two terms (s 9b). The Central Bank will no longer be able to buy primary issues of government bonds, or otherwise lend to the government, without the approval of the lower house of Parliament. Government bonds can be purchased from other banks, and from the general public, but in the absence of a parliamentary nod this can only be via (hitherto nonexistent) secondary securities markets (ss 91, 92). Finally, in modern central banking practice, transparency and accountability is meant to be the natural accompaniment of independence. Under the new Central Bank Law, Myanmar’s Central Bank is compelled to submit reports on monetary conditions to the Parliament at least twice a year and to publish quarterly reports on monetary developments (ss 38–39). Policy Objectives Of course, Central Bank independence is not supposed to be an end in itself. Accordingly, like other central bank laws around the world, the announced purpose of the new Central Bank Law is to ensure better policy outcomes. Specifically, the Central Bank’s functions and objectives under the new Law include: the conduct of monetary and exchange rate policy to deliver price and exchange stability; the attainment of financial sector stability through supervision, regulation, and providing banks with lender of last resort facilities; the promotion of efficient payments systems and clearing arrangements; acting as banker to the government and as the issuer of the currency; and managing Myanmar’s official foreign exchange reserves (ss 5–6). Such objectives are very much in keeping with those of most central banks and, indeed, as statements of broad principle, they are not far away from those outlined (if rarely achieved) under the old Central Bank Law. Accordingly, the interest is not so much in the objectives sought, but how they are pursued and how achievable they will be, given the many other demands made by Myanmar’s transitional political economy. Banking Supervision In theory, the Central Bank has long run a stringent bank regulatory and supervisory regime.10 Officially, authorised banks in Myanmar must meet: 10 In practice, the Central Bank’s stewardship of Myanmar’s financial sector has been less than stellar, reaching a low point after the country’s 2003 banking crisis (in the wake of which banks effectively ceased to function). For

190 Sean Turnell • a 10 per cent capital adequacy ratio against risk-weighted assets; • a liquidity ratio of 10 per cent of total assets (treasury bonds as well as cash count as liquid items); • a reserves-to-deposits ration of 10 per cent (at least 75 per cent of which must be deposited with the Central Bank, the remainder as cash); • a general provision of 2 per cent of all loans outstanding (with loan loss provisions of 50 per cent against doubtful loans, and 100 per cent against bad loans); • a credit limit to any single borrower of 10 per cent of a bank’s capital and reserves; • annual on- and off-site supervision by the Central Bank;11 and • a requirement of submission to the Central Bank of weekly reports of reserves and liquidity ratios; monthly reports on assets and liabilities, income and expenditures, and capital adequacy ratios; quarterly reports on sectorial distribution of loans and advances, and non-performing loans; and yearly reports on provisions against bad and doubtful debts, and statements of profit and loss (ss 69–70). The new Central Bank Law does not itself change any of the above but the rules and regulations that will implement it may bring about some modifications. Significantly, the capital adequacy ratio will likely be rewritten in accordance with the current global manifestation of (voluntary) capital regulation known as ‘Basel III’ or the ‘Third Basel Accord’ (the appropriateness of which to Myanmar is questionable). Also expected are changes to the definitions of capital and other banking metrics – how and when to classify loans as non-performing for instance. These changes are intended to better harmonise with established international norms from which the Myanmar banking system currently departs markedly. One interesting addition to the supervisory functions of the Central Bank is the inclusion of a role in inspecting and broadly regulating foreign exchange dealers, both those within banks and those independent of them. Under the old Central Bank Law such a supervisory role was unnecessary since, legally, such dealers were not permitted to exist outside a limited number of state-owned banks (s 76). Of course, there is a vast array of restrictions on banks in Myanmar beyond those contained in the new (and old) Central Bank Law. Most of these do little to enhance prudence but greatly undermine the effectiveness of the country’s financial sector. Too many even to summarise,12 many of these are contained within the Financial Institutions of Myanmar Law No 16/1990 and its accompanying rules and regulations. Reform of the Financial Institutions Law is promised, and an early draft was before the Parliament in 2013. Without it, however, home-grown progress in Myanmar’s financial sector will be greatly limited. a period of some years, the Central Bank’s bank oversight role was even effectively usurped by a highly destructive ‘recovery committee’ led by Myanmar’s former Vice President, Tin Aung Myint Oo. The Central Bank performed rather better in 2012, when it reassured anxious depositors in the face of rumours casting doubt on the solvency of Kanbawza Bank, currently the largest private bank in Myanmar. All of this remains a work in progress however. The Central Bank is currently being assisted by staff from the World Bank, the Asian Development Bank, and various donor country missions (many of whom have disclosed to the author their ‘shock’ at encountering the lack of ‘capacity’ within the Central Bank). 11 A particular emphasis on on-site inspection of ‘accounts, legers, supporting documents and other records’ is apparent in the new Central Bank Law (Ch X). 12 They include the restrictions on banks’ lending to farmers, the floors and caps placed on bank deposit and lending interest rates, and limitations on the opening of new branches, to name just a few of the more obvious constraints.

Legislative Foundations of Myanmar’s Economic Reforms 191 Monetary Policy Instruments In the performance of its monetary policy duties, the Central Bank Law authorises the Central Bank to conduct what is commonly known as ‘open market operations’ via the purchase and sale of financial securities in order to influence monetary conditions (s 45). Myanmar, however, does not yet possess the ‘secondary markets’ in securities that would allow these operations to take place. In their stead, the Central Bank currently has facilities to conduct deposit and credit auctions. So far these are really only useful for ‘sterilising’ the Central Bank’s buying and selling in the foreign exchange market (to stabilise the kyat) rather than in influencing broader monetary conditions, which are affected more by the floors and caps the Central Bank imposes on the interest rates that banks pay and charge. A key insight into the conduct of monetary policy around the world is that transparency and openness in open market operations can assist central banks in achieving their objectives, via the shaping of market expectations. This is recognised in the Central Bank Law (s 46), which asserts that the Central Bank will ‘announce to the public’ its dealings in financial markets for policy ends. The same section of the Central Bank Law seeks to clarify the uses of minimum bank reserves for policy purposes. Other Changes Under the New Central Bank Law In conjunction with its greater responsibilities and powers, staff numbers at the Central Bank are expected to double to over 2,000 across its three offices in Naypyitaw, Yangon and Mandalay, and four new ‘policy committees’ will be established. The latter will be concerned with monetary policy, financial stability, payments systems, and foreign exchange management. How much power these committees will wield, who will head them, and how they will mesh with the responsibilities of the three new Deputy Governors is, as yet, unclear. Provision in the new Central Bank Law of the entry requirements for foreign banks in Myanmar was much anticipated by international observers. In fact, the entry of foreign banks has long been legally possible in Myanmar but has thus far not been acted upon, so a change in the Central Bank Law is not necessary. In short, all depends on the stillto-come (and oft-mentioned) rules and regulations that will implement the Central Bank Law. Amidst speculation at the time of the Central Bank Law’s promulgation, a Central Bank spokesperson confirmed that when foreign banks are allowed in initially ‘they will only be able to operate joint ventures with local banks’.13 Meanwhile subsequent statements from Myanmar’s Deputy Minister of Finance and Revenue, U Maung Maung Thein, suggested that foreign banks could shortly be allowed to take equity stakes in local institutions (Ferrie 2013). Given Myanmar’s unfortunate history of periodic demonetisation episodes, its 2008 Constitution includes a guarantee ‘not to demonetise currency legally in circulation’

13 This statement was made by Daw Naw Eh Hpaw, Deputy Director of the Central Bank at a banking and finance conference held in Rangoon on 16 July. See Aye Thidar Kyaw (2013).

192 Sean Turnell (s 36e).14 This is reinforced in the new Central Bank Law, which includes the assurance that any ‘necessary’ withdrawals of currency notes in circulation take place only with the approval of the Parliament (s 67a). Question Marks over the Central Bank’s Autonomy The Central Bank Law is designed to ensure that Myanmar’s Central Bank does not again become the money ‘printing press’ of state finance. Under the Central Bank Law, the Central Bank is not legally precluded from lending to the state, but the requirement of parliamentary approval to do so would, in present circumstances, likely prove onerous. On this front then, the Central Bank Law might be counted as real progress, at least for so long as the executive and the Parliament remain at odds. Of course, an extra note of caution must be sounded here regarding the activities of the other state-owned banks. These institutions (but especially the largest of them, the Myanma Economic Bank) are not precluded from financing the state through the purchase of primary government securities; they, in turn, are not excluded from Central Bank support. Of late, the Myanma Economic Bank has been a large buyer of government debt. This is an issue that warrants watching, and ultimately all will depend on the ability of future governments to be able to finance their spending by selling bonds to the public, borrowing from offshore and from private banks, and, most important of all, by creating the fiscal circumstances (spending restraint and adequate taxation) that reduce the incentives for ‘money printing’. Security of tenure is important in granting senior officers and directors of the Central Bank the confidence to act independently of the government. As noted, the Central Bank Law contains provisions for delivering such security but these are uncertain and incomplete. It is, for instance, unclear whether the removal of senior staff or Central Bank directors requires parliamentary approval, just as it is uncertain whether the same pertains to a Presidential finding that a Director is ‘incapable of discharging his duties’. In this area alone, the role of the President is unilateral and unchallengeable – and thus somewhat problematic for the notion of credibly establishing perceptions that the Central Bank is genuinely independent of his office. Capacity constraints are amongst the most commonly cited obstacles to the success of Myanmar’s economic transition. Clearly such constraints will be telling in the case of the demands of the new Central Bank Law too. From where, for example, will independent directors come? Foreigners are not allowed and qualified locals are scarce. 15 Of course, this is not an insurmountable issue, and persons currently technically disqualified can make changes to their circumstances, but it will be an irritant nonetheless. The Central Bank already has a struggle on its hands in fulfilling its role as sole manager of Myanmar’s official foreign exchange reserves. As noted, this is mandated in the new Central Bank Law but it is a role that the Central Bank has, in fact, been assigned

14 Myanmar has experienced three ‘demonetisation’ episodes over the last 50 years, the most bizarre of which included the replacement of decimal currency notes with a series based upon the number nine. For more on these, see Turnell (2009). 15 According to multiple sources provided to the author, only around 50 per cent of positions within the Central Bank are currently filled.

Legislative Foundations of Myanmar’s Economic Reforms 193 since late 2012. Accordingly some of Myanmar’s foreign exchange reserves have moved across from the country’s other state-owned banks (specifically, the Myanma Foreign Trade Bank, the Myanma Industrial and Commercial Bank and the Myanma Economic Bank) but by no means has all of it been given up. Indeed, according to information provided privately to the author, the Myanma Foreign Trade Bank is vigorously resisting such an outcome. No resolution is at hand, and much depends upon alliances between Myanmar’s political actors at the highest levels. NEW MICROFINANCE LAW

The new law on microfinance is less important in comparison to the Central Bank Law but critical for the sector it is designed to serve. Under the Microfinance Law No 13/2011, microfinance institutions (MFIs) in Myanmar have legal recognition and authorisation at last. This has long been called for by the MFIs, as they had been vulnerable to the fluctuating standing of their sponsoring NGOs. Less welcome to the MFIs, however, are clauses of the Microfinance Law that fix the interest rates they can charge on loans and must pay on deposits – arguably at rates that will make financial sustainability difficult. On this score, however, much will depend upon prevailing inflation rates in Myanmar and macroeconomic conditions more broadly. Myanmar has several dozen MFIs, but one (operated by the US NGO ‘PACT’16 on behalf of the United Nations Development Programme, UNDP) dominates the sector. An MFI with around 450,000 members and 120 branches in 27 townships, it is a very large institution, even by global standards (Duflos, Luchtenburg and Li 2013). Since the promulgation of the Microfinance Law, over 150 MFIs have been authorised. This is a positive sign but also prompts worries about possible future over-saturation in the sector (Livelihoods and Food Security Trust Fund 2013). Myanmar’s new Microfinance Law authorises the establishment of MFIs to carry out an expansive array of activities, including to extend micro-credit, accept deposits, receive and accept remittances, carry out insurance business, borrow locally and from abroad, and carry out ‘other’ financial activities (s 29). Of course, such authorisation to some extent only validates what has long been undertaken already but the breadth of activities now covered by law should not be underestimated. The previous inability of MFIs in Myanmar to accept deposits (outlawed under previous arrangements) was a significant brake on not just their financial sustainability but also their effectiveness. The authorisation of micro-insurance and the remittance business is likewise at the permissive end of good-practice MFI activity. The latter has, moreover, already had an impact – with the PACT/UNDP scheme recently introducing a micro-insurance product.17 Minimum capital standards are specified under the Microfinance Law (s 20), appropriately at different levels depending on whether an MFI takes in voluntary deposits or not. For deposit-taking MFIs, the minimum amount of paid-up capital is set at K30 million, and for non-deposit-taking MFIs, capital must be a minimum of K15 million. This initial capital requirement is common throughout the microfinance industry, as are the 16 PACT (previously known as ‘People Acting Collaboratively Together’) is a large Washington DC-based NGO that specialises in microfinance and livelihood support. 17 Primarily, a contributory mutual fund life-insurance policy.

194 Sean Turnell different amounts for deposit- and non-deposit-taking institutions.18 Missing from the capital requirements for deposit-taking MFIs, however, is a prudential capital adequacy ratio to compel increasing amounts of capital as the assets of an MFI grow. Capital is the net worth of an MFI (or any financial institution) and, as such, is its ‘buffer’ against insolvency. Having adequate capital is also the first line in the defence of the funds of depositors in a crisis. No doubt the rules and regulations established under the new Microfinance Law will continue to evolve but the absence of a proportionate capital adequacy requirement seems an oversight. Given that the most important of Myanmar’s MFIs pre-date the Microfinance Law, provisions in the Law grant a transition period for existing institutions to meet the new capital and other licensing requirements. SPECIAL ECONOMIC ZONE LAWS

Special Economic Zones (SEZs) have been a favoured device for promoting economic development in a number of countries in recent decades. SEZs come in many types, shapes and sizes but all are more or less predicated on delivering certain ‘static’ benefits (increased investment, exports and employment). SEZs also act as incubators for more ‘dynamic’ paybacks (as drivers of change through experimentation, demonstration and technology transfer).19 SEZs have been created in Myanmar on a number of occasions over the last 20 years. None have been successful, and most are moribund today.20 These failures stem, at their heart, from the inability of the central authorities in Myanmar to live up to their legal commitments – in short, to resist tinkering around the edges of (uniquely) assigned property rights or using the zones to bestow favour or indulge in expropriation. Notwithstanding this rather grim track record under previous regimes, great interest remains in SEZs in Myanmar, including among the most prominent and committed reformers. Their motivation is straightforward – confronted with the complexity and difficulty of country-wide reforms, why not ‘try out’ liberal measures in a more limited space? In 2011 (and just before the appointment of Myanmar’s new government under Thein Sein), a fresh effort on the SEZ front was launched via the promulgation of two new and near-identical laws, the Myanmar Special Economic Zone Law No 8/2011, and the Dawei Special Economic Zone Law No 17/2011. Under these laws, foreign investors are granted a number of concessions, including: 18 By international standards, however, the capital requirements for MFIs in Myanmar are extraordinarily low (especially for deposit-taking bodies). In Cambodia, minimum capital for non-deposit-taking MFIs is US$80,000, while for deposit-taking institutions it is US$2.5 million (Livelihoods and Food Security Trust Fund 2013: 41). 19 The sheer variety of claimed SEZs defies easy definition. A reasonably comprehensive meaning is given in a seminal work by the World Bank, which defines SEZs as ‘. . . demarcated geographic areas contained within a country’s national boundaries where the rules of business are different from those that prevail in the national territory. These differential rules principally deal with investment conditions, international trade and customs, taxation, and the regulatory environment; whereby the zone is given a business environment that is intended to be more liberal from a policy perspective and more effective from an administrative perspective than that of the national territory’ (World Bank 2011: 23). 20 For example, from 2003 some 23 industrial development zones were established by the Burmese government, some of which were located in ethnic nationality areas and along the Thai–Burma border. None were able to gain much traction in attracting international investors, and all were rendered essentially obsolete following the 2011 SEZ legislation. For more, see Lubeigt (2008).

Legislative Foundations of Myanmar’s Economic Reforms 195 • an initial five-year tax holiday, with a 50 per cent taxation reduction on profits from overseas sales for a second five years; • a five-year, 50 per cent reduction in taxes on profits that are reinvested; • an exemption from customs duties on imported raw materials and machinery for use in the production of exports; • the right to lease land for 30 years, with the possibility for two subsequent renewals of 15 years each; • the right to use foreign currencies in the zone and the services of foreign banks within them; and • a ‘no nationalisation’ guarantee.21 At the time of the promulgation of the SEZ laws, these concessions were generous and liberal relative to foreign investment allowances in the broader economy. Since the establishment of the Foreign Investment Law, however, these SEZ sweeteners are now little different to the enticements generally available to foreign investors anywhere in Myanmar. Among the few ‘extra’ benefits are that the local skilled employment requirements are rather easier for foreign enterprises, stipulating five-, rather than two-, year increments in the 25, 50 and 75 per cent Myanmar citizen employment minimums. Another potential benefit is the creation of a ‘Central Body’ in each of the zones, which, among other things, will establish a ‘one-stop service’ to handle all negotiations with government (SEZ Law, s 101). In 2013 three SEZs were promoted – at Dawei (to accompany a deep-port development on the Tanintharyi coast, more or less parallel with Bangkok); Thilawa (a port near Yangon); and Kyaukpyu (on the Bay of Bengal).22 The Dawei project, proposed by the ‘Ital-Thai’ company of Thailand, has generated the most publicity. Projected to cost some US$50 billion if fully completed, its purpose is to provide a much more efficient trans-shipment point for goods into Thailand, to receive industries whose presence (for environmental and other factors) is unwelcome in Thailand, and to serve the more traditional SEZ purpose of constituting a low-wage manufacturing hub. Doubt has emerged, however, regarding the project. In January 2012 President Thein Sein cancelled the authorisation of a coal-fired power plant that was meant to service the zone and export electricity beyond the zone to Thailand. Ital-Thai has also had great difficulty in raising funds and has since withdrawn as lead developer. Potential Japanese interest has waned, while politicians in both Myanmar and Thailand seem to have cooled on the idea. 23 As is apparent from the previous discussion, the Dawei SEZ is (oddly) authorised under its own law but this is more or less identical in important aspects to the broader SEZ Law. Whatever its legal status, the Dawei SEZ must now be regarded as a somewhat doubtful proposition. Less well known than Dawei are the SEZs being promoted at Kyaukpyu and Thilawa. Kyaukpyu is the location of the terminus of the newly completed 800-kilometre pipeline that pumps oil and gas from the Bay of Bengal to Yunnan Province in China. Accordingly, it is already the location of significant infrastructure investment. It is also, however, situated in Myanmar’s Rakhine State, home to the worst of the country’s Buddhist–Muslim 21 These benefits are present in both of the SEZ laws, but for a detailed outline of the ‘special privileges’ available to investors in the zones, see the SEZ Law (ch V). 22 Others are proposed for Mawlamyine, Pa-An and Pyin-Oo-Lwin. 23 For a taste of some of the trials and tribulations of the Dawei SEZ, see Aung Shin (2013).

196 Sean Turnell conflicts, and could hardly be regarded as a project without risk. The SEZ at Thilawa has probably the best chance of success. Situated just 25 kilometres from Yangon, it is the beneficiary of significant interest and funding from Japan, attracting investors such as the Mitsubishi, Marubeni and Sumitomo corporations, as well as support from the Japan International Cooperation Agency (JICA) and the Japanese government. A memorandum of understanding on the development of Thilawa was signed between the Japanese consortium and the Thilawa SEZ Management Company (the ‘Central Body’ outlined above) on May 2013, in the presence of the Japanese Prime Minister (XN 25 May 2013). The international evidence for SEZ success is decidedly mixed. In countries such as China and Vietnam, and, indeed, in Asia generally, they do seem to have delivered both static and dynamic gains. Elsewhere, in Africa, South Asia and the Middle East broadly, however, they have largely failed on all fronts.24 From these experiences, an array of ‘stylised facts’ emerge that differentiate the two paths. The following are of particular relevance to Myanmar: local linkages; supporting infrastructure; location; land and labour rights; and patience. The extent of effective links between domestic enterprises outside the zone and the international firms within it is vital. In the absence of local linkages, SEZs risk becoming enclaves. The host country must have competitive local value chains supplying inputs of goods and services to the zones, and creating employment and incomes beyond them. In Myanmar these production chains are not apparent yet, and they are hostage to all that has traditionally held industry back (macroeconomic instability, poor economic policy making, degraded infrastructure, deficiencies in property rights specifications, and so on). In short, to generate the ‘value chains’ necessary, the conditions within the zones need to be effectively extended beyond them. In other words, what matters most are the broader economic policies and institutions of the nation as a whole. Further, good infrastructure, especially with respect to ports, roads and electricity supplies, are critical for SEZ success (both in static terms, and in driving the broader dynamic gains). In narrow trade and investment terms, access to relatively cheap and reliable transport and energy infrastructure makes for a more attractive location for export industries. In the broader context, infrastructure enhances the likelihood of meaningful linkages of the sort already noted. Of course, Myanmar currently has very poor transport and domestic energy infrastructure, highlighting again that changes are required beyond those internal to SEZs. In addition to good infrastructure, international experience suggests that SEZs that are close to large consumer markets and international integrated supply and production chains tend to be more successful. This is not surprising, given that a focus on exports is central to the raison d’etre of most SEZs. In the case of Myanmar, proximate large consumer markets are perhaps less an advantage than proximate production chains, especially in and around China. Rising labour costs in China have created opportunities for component manufacture across a range of industries in countries such as Vietnam and Cambodia, and there seems little to suggest Myanmar could not be similarly placed. As always, infrastructure and policy choices for the zone will need to be complementary for this to eventuate. 24 For more on the record of SEZs around the world, and an analysis of the conditions necessary for their success, see Carter and Harding (2011).

Legislative Foundations of Myanmar’s Economic Reforms 197 SEZs will also not propel a country forward if the comparative advantage they bestow is based on the exploitation of its workers and farmers. Accordingly, and understanding that the dynamic motivation for the creation of SEZs is to inspire the movement of a country ‘up’ the production value chain, improving productivity (rather than driving down costs) should be the policy adopted. This is especially the case for Myanmar in the context of its human capital, that is, its labour force (present and potential). At a minimum, an opportunity should be open to adhere to international labour standards and other accords that had previously been given little but lip service. For farmers, the issue in Myanmar is usually that of land acquired for SEZs without adequate compensation. SEZs are all about the gains yielded from the special assignment of property rights. Recognising the rights of original landholders fully and objectively when such rights are transferred according to law may be no bad start for an SEZ. Finally, there is a need for patience. None of the world’s successful SEZs yielded returns overnight. This logically follows from the complementary measures for SEZ success already noted. It takes time to build infrastructure, establish value chains, craft accommodating policy, and foster the trust and confidence of international investors. Sustained political commitment to SEZs can drive them forward but patience is equally necessary if they are to survive. REPEALING FOREIGN EXCHANGE LAWS

Sometimes ‘unmaking’ bad economic laws is just as important as creating new ones. In Myanmar’s case this is true in many areas but it was particularly true of the decision (in April 2012) to ‘float’ the country’s currency, the kyat. Negating in the process a series of edicts whose legal authority derived ultimately from the Foreign Exchange Regulation Act 1947, this decision removed in one stroke the primary method by which successive military regimes in Myanmar had expropriated the country’s foreign exchange earnings. The method was a simple one. The old rules dictated that the value of the kyat be rigidly fixed against the US dollar at a rate of K6: US$1. By the late 1990s, the ‘informal’ exchange rate of the kyat – that is, its true purchasing power – had depreciated to around K1,000: US$1. This valuation gap, which grew alongside Myanmar’s rising gas and other resource and energy exports via state-owned enterprises (SOEs),25 created means and motive for vast malfeasance by the old regime.26 Recording the value of SOE exports in the public accounts at the fixed, formal exchange rate undervalued them by around 90 per cent of their true value, allowing the remainder to be surreptitiously applied in any way desired. Floating the kyat and allowing its value to be determined in the market through supply and demand, more or less reunited Myanmar’s formal and informal exchange rates. Along the way, an opportunity was created for honest public accounting. Government budgets brought down since the float suggest the opportunity has been grasped. In August 2012 the passage of the Foreign Exchange Rate Management Law No 12/2012 formally repealed the old Foreign Exchange Regulation Act. Meanwhile, however, the rules and regulations of the Foreign Exchange Rate Management Law are yet to appear, forestalling any detailed assessment of its ultimate impact. 25 26

Principally the Myanmar Oil and Gas Enterprise (MOGE). For a broad discussion of this, see Turnell (2011).

198 Sean Turnell CONCLUSION

Creating a functioning ‘market economy system’ in Myanmar will depend upon the establishment of the legal framework that has historically been the foundation for genuinely transformational growth and development in other countries. In this chapter I have examined a number of legislative components central to such a framework, including foreign investment, central banking, microfinance, Special Economic Zones and exchange rate arrangements. Rather a mixed bag in terms of clarity of drafting and the effectiveness of their implementation, each of these new regulations faces challenges endemic to the understandable ‘messiness’ of Myanmar’s hoped-for transition. They do, however, represent a necessary and potentially promising start, even if they are simultaneously a reminder of the considerable tasks ahead. REFERENCES Aung Shin (2013) ‘Dawei SEZ Out to Tender as Ital-Thai Steps Aside’, The Myanmar Times, 10 June, www.mmtimes.com.mm. Aye Thidar Kyaw (2013) ‘Foreign Banks get Access to Market’, The Myanmar Times, 22 July, www. mmtimes.com. Carter, Connie and Harding, Andrew (2011) ‘SEZs: Policy Incubators or Catalysts for Development’ in Connie Carter and Andrew Harding (eds), Special Economic Zones in Asian Market Economies (Abingdon, Routledge). Duflos, Eric, Luchtenburg, Paul, Li, Ren and Lu, Yan Chen (2013) Microfinance in Myanmar: Sector Assessment (Washington DC, International Finance Corporation and Consultative Group to Assist the Poorest, World Bank). Ferrie, Jared (2013) ‘Myanmar Could Let Foreign Banks Buy Local Stakes’, Reuters, 19 July, www. reuters.com. Livelihoods and Food Security Trust Fund (2013) ‘Emerging Microfinance Sector in Myanmar: Regional Lessons on Selected Issues’, proceedings of workshop in Naypyitaw, Myanmar, 9–10 May 2013, www.lift-fund.org. Lubeigt, Guy (2008) ‘Industrial Zones in Burma and Burmese Labour in Thailand’ in Monique Skidmore and Trevor Wilson (eds), Myanmar: The State, Community and the Environment (Canberra, Australian National University). Turnell, Sean (2009) Fiery Dragons: Banks, Moneylenders and Microfinance in Burma (Copenhagen, NIAS Press). Turnell, Sean (2011) ‘Fundamentals of Myanmar’s Political Economy: A Political Economy Perspective’ 6(1) Asian Economic Policy Review 136. Xinhua News (XN) (25 May 2013) ‘Myanmar, Japanese Firms Sign MoU on Thilawa SEZ Development’, news.xinhuanet.com. World Bank (2011) Special Economic Zones in Africa: Comparing Performance and Learning from Global Experience (Washington, DC, World Bank).

LEGISLATION Administration of Vacant, Fallow and Virgin Lands Law No 10/2012 (Pyidaungsu Hluttaw Law) Central Bank of Myanmar Law No 15/1990 (State Law and Order Restoration Council Law) Central Bank of Myanmar Law No 16/2013 (Pyidaungsu Hluttaw Law)

Legislative Foundations of Myanmar’s Economic Reforms 199 The Constitution of the Republic of the Union of Myanmar 2008 Environmental Conservation Law No 9/2012 (Pyidaungsu Hluttaw Law) Farmland Act No 11/2012 (Pyidaungsu Hluttaw Law) Financial Institutions of Myanmar Law No 16/1990 (State Law and Order Restoration Council Law) Foreign Exchange Rate Management Law No 12/2012 (Pyidaungsu Hluttaw Law) Foreign Exchange Regulation Act 1947 (The Burma Code III, 1947) Foreign Investment Law No 21/2012 (Pyidaungsu Hluttaw Law) Import-Export Law No 17/2012 (Pyidaungsu Hluttaw Law) Labour Organisation Law No 7/2011 (Pyidaungsu Hluttaw Law) Microfinance Law No 13/2011 (Pyidaungsu Hluttaw Law) State-Owned Economic Enterprises Law No 9/1989 (State Law and Order Restoration Council Law)

11 Elections and the Reform Agenda MICHAEL LIDAUER AND GILLES SAPHY*

A

MONG COMPETING THEORIES on transition from authoritarianism, Lindberg’s theory (2009) of democratisation by elections as a mode of transition stands out. His work builds on Schmitter, Whitehead and O’Donnell’s seminal work on ‘Transitions from Authoritarian Rule’ (1986), as well as the works of Dahl (1971, 1989) and Schedler (2002, 2009). Unlike other works on ‘transitology’, elections are seen not as the result of a transition to democracy, nor used as mere indicators to measure the level of democratisation. Elections are rather understood as ‘arenas, processes, institutional incentives, and opportunity structures’ whereby ‘electoral processes and incentives under certain conditions play causal roles in furthering democratization’ (Lindberg 2009: xxii). Lindberg’s model is neither mono-causal nor mono-directional. It allows for alternative reasons for democratisation and accepts that elections can, under specific circumstances, also lead to autocratisation. Repeated competitive elections are, however, perceived as decisive: ‘De jure competitive elections provide a set of institutions, rights and processes stacking up incentives and costs in ways that tend to further democratization’ (Lindberg 2009: 9). Although Myanmar does not look back to a series of competitive elections and so can not yet serve as a case confirming Lindberg’s hypothesis, much points in that direction. Myanmar is in transition from an authoritarian regime towards democratisation. Preceded by a Constitution-writing process and a national referendum, general elections in 2010 led to a new, formally civilian, government under the leadership of President U Thein Sein, who launched a series of wide-ranging political and socio-economic reforms. The by-elections of 2012 served as a rite-de-passage that made it possible for both national and international stakeholders to turn the page on the tensions of the past and to engage in new relations with each other (Lidauer 2012). Since then, the political process is not only driven by new power dynamics between Myanmar elites and their renewed efforts for peace building and national reconciliation. It is also shaped by the contest anticipated ahead of the next general elections, expected in late 2015. After looking back briefly at electoral history from the early 1920s to 1990, this chapter summarises the political dimensions of the elections in 2010 and 2012 and provides a perspective for future developments towards 2015. Confirming Lindberg’s focus on

* Parts of this chapter were presented at the first annual workshop of the ‘Electoral Integrity Project‘ (www. electoralintegrityproject.com) at Harvard University on 3–4 June 2013 by Michael Lidauer. Other parts draw on the final report and the legal review produced in the context of the EU Election Expert Mission (EEM) to Myanmar 2012, for which the authors formed a team. An earlier version of this chapter has profited from valuable comments by Sofia Massoud.

202 Michael Lidauer and Gilles Saphy ‘institutions, rights and processes’, it offers an analysis of the institutional and legal framework for the conduct of elections in Myanmar against international standards for electoral conduct. As is common among practitioners (Tuccinardi et al 2007) and increasingly also among academics (for example, Suksi 2002; Norris 2012), elections are not only understood as singular events but as long-term processes that can be described in cycles. Electoral reforms do not take place when polls are due but in the longer periods of the electoral cycle between polls that appear less busy to the eye of the public. Following an analysis of the legal framework for elections, this chapter proceeds to look at new avenues and actors of reform. It takes into account national actors and processes, as well as the emerging engagement of international actors in Myanmar and their possible impact on the process. Finally, the chapter identifies the major areas of potential for electoral law reform and sums up its findings.

MYANMAR’S ELECTORAL HISTORY

We begin with a brief overview of the electoral history, with a particular focus on recent electoral politics, to provide a background to the analysis of ongoing or anticipated reforms of the electoral framework. Despite the scope of current international attention, the holding of elections is not entirely new. From 1922 elections were held under British colonial rule but with limited franchise, low participation and frequent boycotts. The boycotts of that time were no expression of discontent with the candidates at hand but rather based on anti-colonial sentiments that favoured the Burmese monarchy rather than the idea of the secret ballot. Little is known about the three multi-party post-independence elections in ‘democratic Burma’ (in 1951, 1956 and 1960) before General Ne Win’s coup d’état in 1962 led to military dictatorship. However, historical evidence suggests that these elections also saw low turnouts with a largely rural population who were not well informed. They were also marked by the dominance of one political party against a divided opposition, boycott by forbidden political parties and early insurgent groups, and incidents of ‘shooting, kidnapping of candidates, intimidation, falsification, bribery, and other tactics’ (Taylor 1996: 174, following Maung Maung 1963: 134 citing Taussig 1956: 16). A referendum in 1973 prepared the way for a new Constitution in 1974 that solidified the leading role of the Burma Socialist Programme Party (BSPP). One-party elections comparable to those in the Soviet Union and Eastern Europe were subsequently held on four occasions, the latest in 1985 (Taylor 1996: 175f). Following public protests initiated by students in 1988, the first multi-party elections since 1960 were held in 1990, and Daw Aung San Suu Kyi’s newly founded National League for Democracy (NLD) emerged as the unexpected winner. Apart from restrictions on freedom of assembly (ICG 2001: 5f) and other constraints on campaigning by political parties, the administrative conduct of these elections was barely criticised within Burma. The army decided, however, not to hand over power to a civilian government until a new Constitution was drawn (Tonkin 2007). This process lasted two decades. In 2003 the military government launched the so-called ‘roadmap to disciplined democracy’, designed to include the writing of the country’s third Constitution, a national referendum to adopt this Constitution, the holding of general elections, and the inauguration of the elected government as crucial steps (Myanmar Institute of Strategic and International Studies 2004). Despite the havoc caused by Cyclone Nargis only a few

Elections and the Reform Agenda 203 weeks earlier, the national referendum was held in May 2008. The new Constitution was adopted with an overwhelming vote of 92 per cent, but international commentators believed that this result was based on widespread fraud, including severe breaches of voting secrecy and pressure from authorities (Fink 2009: 109ff). The next step on the roadmap was general elections. The laws regulating the conduct of the polls, followed by a series of by-laws issued by the newly created Union Election Commission (UEC), were released on 8 March 2010.1 They nullified the election results of 1990. The Union Election Commission Law did not make many changes to previous legislation but the Political Parties Registration Law was highly restrictive, disadvantaged smaller political parties and independent candidates through high registration costs, and helped to safeguard the leadership role of the newly founded Union Solidarity and Development Party (USDP), at that time widely seen as the military-proxy party (CPCS 2011: 20–27). Political party activism had been suspended under the military SLORC/SPDC 2 regimes between 1988 and 2011. Parties were allowed to (re-)register for the elections of 2010 but were only given two weeks to do so. For the first time in decades, they had the chance to present themselves to a wider public through the state media. They received the same amount of airtime each but campaign contents remained strictly censored (Horsey 2010a). On 7 November 2010 voting took place in a peaceful atmosphere with representative participation but was allegedly followed by massive manipulation. It was widely reported that the local election management boards started to change results after midnight with the fraudulent use of advanced ballots. According to a resident analyst (Horsey 2010b: 7): The significance of the elections has never been dependent on their free and fair conduct. The opportunities lay elsewhere, with the resumption of legal political activity and discussion (including, to some extent, in the domestic media), something that has been impossible for most of the last half-century; with the generational transition within the military; with the separation between military and government; and with the introduction of regional legislatures and a limited devolution of governance.

The USDP carried away an overwhelming victory, but it was acknowledged that parties whose membership is based on ethnic identity won a significant number of seats in state legislatures. Several parties prepared for legal challenges to the vote but were discouraged again by the high costs involved and by possible legal consequences for the claimants. The international community, influenced by transnational advocacy networks supporting the position of Daw Aung San Suu Kyi, condemned the elections of 2010 from the outset. For the national political landscape, the real debate was whether political parties should participate at all, and thus let go of the 1990 results and accept the new constitutional framework (Köster 2010; TNI/BCN 2010). The NLD and several other parties who were victorious in 1990 boycotted the polls. This divide in the political spectrum is still tangible today. 1 The Amyotha Hluttaw Election Law No 4/2010; the Pyithu Hluttaw Election Law No 3/2010; the Region and State Hluttaw Election Law No 5/2010; the Union Election Commission Law No 1/2010; and the Political Parties Registration Law No 2/2010, all adopted on 8 March 2010. The Political Parties Registration Law was amended on 4 November 2011. 2 State Law and Order Restoration Council (SLORC) 1988–97; State Peace and Development Council (SPDC) 1997–2011.

204 Michael Lidauer and Gilles Saphy After its inauguration in March 2011 the formally civilian government under President U Thein Sein launched unprecedented reforms including reconciliation with Aung San Suu Kyi, who had spent much of her time since 1990 under house arrest. This reconciliation process led to the participation of the NLD in unforeseen by-elections on 1 April 2012 for 45 seats3 that had been vacated for ministerial or other high-governmental positions. By taking this step, the NLD let go of the 1990 election results and implicitly endorsed the new Constitution. Despite the fact that the legal framework for the conduct of the elections was only changed in minor ways, and only to create conditions under which Aung San Suu Kyi and the NLD decided to participate,4 the international community commented on these elections with renewed interest, and more benevolently than one-and-a-half years earlier. At the same time, the Election Commission, whose composition was meanwhile reduced and its members replaced by presidential appointees, also appeared to conduct a more transparent process than before. The NLD won these elections with a landside (43 out of 45 seats) but the entire opposition – that is, the NLD plus smaller parties who had contested the elections of 2010 – still holds no more than 7 per cent in the national legislature. Other parties who had followed the call for boycotts in 2010 are now re-registering, or planning to re-register, for elections in 2015. The latest development in the political party landscape is the foundation of a unified ‘ethnic’ party, coming from a party alliance called the National Brotherhood Forum, which plans to contest the elections at the national level (Eleven Media, 13 June 2013). The international community, as well as political stakeholders inside the country, approached the unforeseen by-elections as a rite-de-passage (Lidauer 2012) to turn the page on self-isolation and sanctions, and started to re-engage in new ways. 5 Support to enhance electoral integrity in Myanmar is part of these new relationships. Following a long-standing demand from the political opposition, the Union Parliament decided to form a committee to review the Constitution starting from July 2013. The major points for discussion are expected to be the role of the military in the legislature; the eligibility criteria for presidential candidates; issues of decentralised governance (in particular the direct election of chief ministers rather than their appointment by the President); and the procedure for amendment of the Constitution. Another element of constitutional change concerns electoral system choice, with a possible shift away from the existing first-pastthe-post (FPTP) system.

3 The 45 seats consisted of the following: 37 in the Pyithu Hluttaw; 6 in the Amyotha Hluttaw; and 2 in the Regional Hluttaws (1 Ayeyawady, 1 Bago). Elections for 3 Pyithu Hluttaw seats from Kachin State were not held for security reasons. 4 Three amendments to the Political Parties Registration Law were adopted in November 2011: the removal of the provision that a person sentenced to a prison term could not be a party member; a provision that parties shall ‘safeguard the constitution’ was changed to ‘respect and abide by the constitution’; and an amendment saying that in order to remain registered, a party must run in at least three constituencies in the by-elections. Before the amendment, the law said ‘in the general elections’. Since Aung San Suu Kyi’s party boycotted the 2010 general elections, this would have prevented them from registering. 5 The European Union suspended many of its political and economic sanctions after the by-elections of 2012 and declared an end to sanctions, with the exception of the embargo on arms on 22 April 2013 (see www. consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/136918.pdf). The US government also seeks to loosen its sanctions regime.

Elections and the Reform Agenda 205 THE LEGAL FRAMEWORK FOR ELECTIONS

While the conduct of the 2012 by-elections showed some improvement from the 2010 general elections, these advances were largely considered the product of the goodwill of the country’s leadership, rather than of a solid legal and institutional framework for elections with procedural safeguards. Norris (2012) grounds the concept of electoral integrity in international and regional standards, that is, binding obligations and nonbinding commitments for the conduct of democratic elections. These are essentially found in international human rights instruments,6 as well as in political commitments and regional declarations.7 In addition, references to assess electoral integrity can include interpretative sources, such as the judgments of judicial bodies (case-law of the European Court of Human Rights, for example), or recommendations issued by treaty monitoring bodies, such as the United Nations Human Rights Committee. Finally, compilations of electoral good practice attempt to reflect the current state of international case-law in electoral matters and national practices in the implementation of international obligations. These documents are not legally binding but are increasingly used as references internationally, and as such deserve to be taken into consideration. Of particular global significance in this regard is the ‘Code of Good Practice in Electoral Matters’ developed by the European Commission for Democracy through Law (the Venice Commission) (2002).8 Myanmar falls far from electoral integrity when it is measured against the ratification of international standards. The most basic and universally recognised of these standards is the Universal Declaration of Human Rights (UDHR 1948), for which the Union of Burma, as a young independent nation state, was allegedly the first to vote in 1948. Under article 21(3) [t]he will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

This is further specified in article 25 of the legally binding International Covenant on Civil and Political Rights (ICCPR 1966), which Myanmar has not ratified. Basic international principles for democratic elections derive from these two instruments and include periodic and genuine elections; universal and equal suffrage; the right to vote and to stand for elections; and the free expression of the will of the electors. Such principles are 6 There is no specific multilateral treaty of universal or quasi-universal scope on elections/political participation. There are a few provisions in universal instruments, such as the Universal Declaration of Human Rights (UDHR 1948) and the International Covenant on Civil and Political Rights (ICCPR 1966), as well as provisions relating to ‘political participation’ in thematic treaties such as the International Convention on the Elimination of Racial Discrimination (CERD 1965), or the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW 1979), and in regional treaties such as, inter alia, the African Charter on Democracy, Elections & Governance (2007), or the American Convention on Human Rights (1969). There is no specific international instrument dealing with the protection of human rights in Southeast Asia. 7 See inter alia the ‘Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE’, also called the ‘OSCE Copenhagen Document’ (1990); the Francophone ‘Bamako Declaration’ (2000); and the SADC Parliamentary Forum ‘Norms and Standards for Elections in the SADC Region’ (2001). 8 European Commission for Democracy Through Law (Venice Commission), ‘Code of Good Practice in Electoral Matters’, CDL-AD(2002)023.

206 Michael Lidauer and Gilles Saphy also used by international experts when assessing an electoral framework in the context of election observation or assistance (cf Davis-Roberts and Carroll 2010). 9 Myanmar is yet to be bound by the most widely held international legal norms that can be referenced on electoral matters. It has, however, ratified two other treaties that protect the right to political participation of specific groups: the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW 1979); and the Convention on the Rights of Persons with Disabilities (CRPD 2006). Finally, the Myanmar Parliament became a member of the Geneva-based Inter-parliamentary Union (IPU) in 2012, endorsing the IPU Declaration on Criteria for Free and Fair Elections of 1994.10 The Structure of State Institutions The 2008 Constitution shapes a hybrid system of government that borrows many features usually found in presidential systems. It vests considerable powers in the office of the President over the governance of the country, in particular through its powers of appointment (see Williams, this volume). There is no Prime Minister;11 the President is the head of the government and nominates ministers, three of them (Defence, Home Affairs and Border Affairs) upon nomination by the Commander-in-Chief of the armed forces, the Tatmadaw. There is no system of approval of the government by the Parliament other than a formal verification that the appointed Union Ministers possess the required qualifications (s 232), and no system for a motion of no-confidence against the government. Symmetrically, the Parliament has a fixed term of five years and cannot be dissolved by the President. Yet, a few aspects depart significantly from the usual features of presidential systems, in particular the election of the President by the houses of Parliament. The 2008 Constitution establishes a bicameral Parliament, the Pyidaungsu Hluttaw, at the national (or Union) level. It consists of the Amyotha Hluttaw (Nationalities Assembly or Upper House) and the Pyithu Hluttaw (People’s Assembly or Lower House). The Constitution gives substantial power to the armed forces in the governance of the country, including 25 per cent reserved seats in all legislative assemblies. Since amending the Constitution requires approval by 75 per cent of the members of the Pyidaungsu Hluttaw, it effectively gives the armed forces the power to veto constitutional amendments. The 2008 Constitution establishes a multi-tier administrative structure that establishes a unitary framework. At the sub-national level, the territory comprises 14 administrative units (seven states and seven regions) with a region/state assembly. The Constitution takes a step towards decentralisation by creating these directly elected assemblies but executive power at sub-national level remains in the hands of the central government. This is illustrated in particular by the nomination of the region/state chief minister by the President, and the reliance of the regions and states on officers of the 9 The idea and substance of ‘international electoral standards’ has been developed by international organisations and INGOs such as the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE); the Carter Center (TCC); Democracy Reporting International (DRI); and the International Institute for Democracy and Electoral Assistance, which is currently updating previous work on international standards (International IDEA 2002). 10 ‘Declaration on Criteria for Free and Fair Elections’ unanimously adopted by the Inter-Parliamentary Council at its 154th session, Paris, 26 March 1994. 11 This is a departure from the 1947 Constitution, ss 115–19.

Elections and the Reform Agenda 207 General Administration Department, a department of the Ministry of Home Affairs, for their administration. Quite remarkably, almost all state institutions are formed directly or indirectly out of the same general elections that every five years elect the national and region/state level legislative assemblies. From these elections proceed the election by the Parliament of the President, who then nominates the Union (national)-level government and the subnational executive functions, but also a set of state bodies defined in the Constitution, including the Constitutional Tribunal, the Auditor General, the Attorney General and the head of the Civil Service Board, among others. As a consequence, the entire governance structure of the country is at stake in a single election event every five years. Electoral System for Parliament The electoral system for the Lower House of Parliament derives from provisions of the Constitution. This is a departure from the 1947 Constitution, which left the electoral system to be decided by statute. According to the 2008 Constitution, the two houses of the national Parliament, the Pyidaungsu Hluttaw, and the region/state assemblies, are elected for five years. The Upper House (Amyotha Hluttaw or Nationalities Assembly) consists of 224 members: 168 directly elected (12 per region/state), and 56 reserved for the army. Where there are self-administered zones/divisions of ethnic minorities in the region or the state,12 one of the 12 seats is designated to represent each of them. The Lower House (Pyithu Hluttaw) consists of 440 members, 330 of whom are directly elected, and 110 seats are reserved for army personnel nominated by the Commander-in-Chief. Under section 109(a) of the Constitution, the 330 directly elected Pyithu Hluttaw members are elected ‘on the basis of township as well as population or combining with an appropriate township which is contiguous to the newly-formed township if it is more than 330 townships’. This wording is somewhat unclear, but its reference to ‘townships’ appears to prescribe a majority system whereby candidates run in single-member constituencies that follow township boundaries. This has been implemented through an FPTP electoral system, under which the candidate elected is the one obtaining the highest number of votes. A re-vote can be organised in case of a tie. Beyond this issue, the great variations between the population of the country’s townships result in highly unequal constituencies for Lower House seats, in contradiction with the principle of equal suffrage.13 The 168 directly elected members of the Upper House are elected ‘in an equal number of 12 representatives from each region and state’. The Constitution is silent as to how this should be implemented. The choice for a majority system is made in the Amyotha Hluttaw election law, which provides for 12 single-member constituencies designated by the Election Commission. There is no legal provision setting guarantees for a minimum participation of female candidates or elected women, despite the ratification of the CEDAW by Myanmar (see 12 There are five self-administered zones (for the Naga in Sagaing Region and for the Danu, Pa-O, Pa Laung and Kokang in Shan State) and one self-administered division (consisting of six townships, for the Wa in Shan State). 13 The principle of equal suffrage is a cornerstone of democratic elections. Equality in voting power commonly refers to the drawing of the boundaries of electoral constituencies (see Venice Commission, Code of Good Practice in Electoral Matters 2002; see also United Nations Human Rights Committee, ‘General Comment No 25: The right to participate in public affairs, voting rights and the right of equal access to public service (art 25)’ 12/07/1996, CCPR/C/21/Rev.1/Add, 2.1).

208 Michael Lidauer and Gilles Saphy also Williams, this volume). The current representation of women is particularly low: 5.8 per cent in the Pyithu Hluttaw and 1.8 per cent in the Amyotha Hluttaw.14 Some political parties have started to express views that favour changing the electoral system from the current FPTP to a proportional one, arguing that FPTP would not be suitable for a politically polarised system, or that a political transition would require a more inclusive model. Changing the electoral system, or the definition of electoral constituencies for the Lower House, would, however, arguably require amending the Constitution. Presidential Election Under section 60 of the Constitution, the President is elected by an electoral college composed of the Members of Parliament meeting in three separate committees: one comprising the elected members of the Pyithu Hluttaw; one comprising the elected members of the Amyotha Hluttaw; and one composed of the military members of the two houses. Each committee proposes a vice-president. One of the three vice-presidents is then elected President by the electoral college voting as a whole. The conditions of eligibility for running as a candidate for President as set forth in section 59 of the Constitution exclude persons whose parents, spouse, legitimate children or their spouses ‘owe allegiance to a foreign power’ or are a ‘citizen of a foreign country’. This rule is sometimes perceived as tailor-made to disqualify Aung San Suu Kyi from running for President, and might become an item in discussions about amending the Constitution. Political Parties Registration The 2010 Political Parties Registration Law creates unusual limits on the right to form a party. In particular, the right to form a party is denied to, inter alia, persons serving a prison term, members of a religious order and persons who have assumed foreign citizenship.15 Further, political parties must abide by the basic principles of the Union set in the Constitution (s 6), including ‘setting the objectives of non-disintegration of the Union, non-disintegration of national solidarity and perpetuation of sovereignty’, as well as being ‘loyal to the State’. The Law also prohibits an ‘organisation that abuses religion for political ends’ from registering. These provisions can be seen as unclear and may be vulnerable to subjective interpretation. Under this Law, it is forbidden for political parties, party founders, organisers or members to have direct or indirect contacts with ‘an insurgent organization and individuals in revolt with arms against the State’ (ss 4(f), 10(f), 12(a)(iii)). The notion of ‘indirect’ contact is ambiguous and its political expediency can be questioned. It might well result in excluding political parties or party members from conflict negotiations, and could impede the conversion of former insurgents into political forces. 14 See Inter-parliamentary Union (IPU) data, www.ipu.org/parline-e/reports/2389.htm and www.ipu.org/ parline-e/reports/2388.htm. 15 The IPU Declaration on criteria for free and fair elections stresses that ‘Everyone has the right to join, or together with others to establish, a political party or organization for the purpose of competing in an election’. IPU Declaration on criteria for free and fair elections (s 3(2)).

Elections and the Reform Agenda 209 The Election Commission plays a crucial role in regulating the existence of political parties. Under section 24 of the Political Parties Registration Law, the Election Commission may suspend for up to three years the registration of a political party that ‘does not abide by any provision of this law’. This point is particularly crucial in view of the fact that under section 20 of the Law, the decisions of the Election Commission are ‘final and conclusive’ and that ‘there shall be no right of institution of any proceeding in any court’. Section 407 of the Constitution forbids political parties from ‘directly or indirectly receiving and expending financial, material or other assistance from a foreign government, a religious association, other association or a person from a foreign country’. This provision could impede possible political party support projects that international organisations or NGOs may wish to offer. Universal Suffrage Voters must be at least 18 years old, and belong to one of the following categories of citizenship: full citizen, associate citizen, naturalised citizen, or holder of a temporary certificate. These categories are defined in the 1982 Citizenship Law, which has established distinctions among Myanmar nationals on the basis of their ancestry. The last category includes some Myanmar inhabitants for whom the provisions of the 1982 law have resulted in lack of citizenship. Ahead of the 2010 elections, the authorities announced that they would distribute temporary registration cards (locally referred to as ‘white cards’) to allow these persons to vote. The Law denies the right to vote to several categories of citizens, including members of religious orders. This exclusion proceeds from the Myanmar interpretation of the separation between state and religion, and is not uncommon in the region (it applies also in Thailand, for example). It may affect the several hundred thousand Buddhist monks in the country. The Law also excludes persons serving a prison term, persons declared of unsound mind, persons not cleared of bankruptcy, and persons who have assumed a foreign citizenship. Some of these restrictions could be objected to on the basis of international standards, in particular the principle that elections shall be held by universal and equal suffrage, protected by article 25 of the ICCPR. Election Management The 2008 Constitution vests the Election Commission with responsibility for general elections and the registration and supervision of political parties. The Election Commission enjoys broad and largely unchecked powers in the implementation of both these competencies. For the conduct of the elections, the Election Commission inter alia adopts the rules and regulations, appoints election sub-commissions at all levels, designs electoral constituencies, prepares voter lists, certifies results and decides on election-related complaints and appeals. It can postpone or cancel elections in areas affected by natural disaster or threats to security. International standards are relatively scarce when considering election management structures and procedures. Nevertheless, in its interpretation of article 25 of the ICCPR,

210 Michael Lidauer and Gilles Saphy the UN Human Rights Committee emphasises the importance of the independence and impartiality of the election management body.16 Similarly, where there is little tradition of pluralistic elections, the Venice Commission Code of Good Practice in Electoral Matters recommends setting up an independent impartial electoral commission from the national level to polling station level. It further provides useful guidelines on composition, status, security of tenure and mode of operation of such a commission.17 Viewed in this light, the provisions of the Constitution and of the Union Election Commission Law on the appointment of the Election Commission raise a number of issues. The Election Commission members are nominated by the President; the number of members is not spelled out in the Constitution, which refers to ‘a minimum of five members’ without setting a limit (s 398 (a)). There are no further details provided in the Union Election Commission Law. This might be due to the practice of appointing ‘shortterm’ Election Commission members during election time to supervise the conduct of the election process at the sub-national level. While this practice might facilitate the management of the process, it introduces an uncertainty with regards to the crucial question of its composition. In addition, the term of office of the Election Commission is also unclear. These provisions could be read as allowing the appointing authority to nominate new Election Commission members at any time, and increase membership with no limit. This could considerably limit the independent functioning of the Election Commission. At sub-national level, election commissions in 2010 and 2012 were essentially composed of civil servants belonging to the Ministry of Population and Immigration, the Advocate General Office, and the General Administration Department. Consequently, the election administration is, to a large extent, functionally dependent on the structures of the executive branch across the country for running the elections. Interestingly, since the by-elections, the Election Commission has increased its staff at the central level and has appointed deputy directors at the sub-national level, indicating an intention to develop its autonomy. In addition to the issues relating to the number and the term of office of the Election Commission members (mentioned above), the Law lacks provisions regarding the functioning of the Commission; its decision-making process; the situations where a consensus or qualified majority vote is required; the mode of adoption of the internal rules of procedures; and the obligation to make decisions public. Finally, many crucial aspects of the process, which one would usually find in the election laws,18 are left for the Election Commission to decide with an unusual margin of discretion. These include the time frame for candidate registration and for voter registration; access for observers; and the transparency of ballot printing and of results consolidation, among others. These matters are not mere technical points. They can adversely affect the integrity of the process, as well as the rights of voters and candidates. 16 UN Human Rights Committee General Comment 25, Para 20: ‘An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. States should take measures to guarantee the requirement of the secrecy of the vote during elections, including absentee voting, where such a system exists.’ 17 The Venice Commission, ‘Code of Good Practice in Electoral Matters’ (CDL-AD(2002)023rev), II.3.1. 18 By ‘election laws’, this chapter refers to the three laws that address elections for the National Assembly and the People’s Assembly at the national level, and the state and region unicameral parliaments, namely the Pyithu Hluttaw Election Law, the Amyotha Hluttaw Election Law and the Region/State Hluttaw Election Law. These three laws are identical in structure and, with the exception of provisions regarding membership, candidacy and constituencies, are also identical in content.

Elections and the Reform Agenda 211

Voter Registration The accuracy of voter lists is essential to citizens’ capacity to exercise their right of suffrage. Inaccuracies in voter lists may lead to voters disenfranchising, political controversies, accusations of manipulation, and blockage or discreditation of the electoral process. Voter lists are widely considered as lacking accuracy in Myanmar. They are prepared several weeks before election day at the level of wards/village tracts on the basis of the households registration lists. Voters denied registration have the right to appeal to the township election sub-commission. While the Myanmar authorities conducted a Population Household Census in 2014, confusion seems to remain regarding its potential use for voter lists. A census collects socio-economic and demographic data but not names and addresses of individuals. Data were collected by interviewing heads of households, not individual members. For these reasons voter registration and the census need to be kept as two fundamentally separate exercises. Procedural Safeguards Several logistical aspects that can have an impact on the integrity and transparency of the process appear in neither the election laws nor in the UEC rules. For example, time frames for voters’ and candidates’ registration are lacking. There is also no provision permitting contestants to observe the ballot paper printing process, and none that deal with posting polling station results outside the polling station or granting copies of the results to candidates’ representatives. A special procedure for ‘advanced voting’ was reported as having been an important source of manipulation during the 2010 elections but less so during the 2012 by-elections. Under the Law, voters who cannot come to their polling station on election day are entitled to obtain an advance ballot. The process involves receiving and sending postal ballots, with very few guarantees of transparency. Campaigns Remarkably, the election campaigns are not regulated by law. The actual word ‘campaign’ only appears as an explanatory note under section 60 of the Pyithu Hluttaw Election Law and it is unclear how long the campaign should last and until which day, or even whether there should be any campaign at all. Campaign rules – for example the system for requesting public venues, the size of campaign posters or flags, airtime on broadcast media and the possibility of placing campaign material in newspapers, among others – do not appear in statute at all. This leaves it up to the Election Commission’s goodwill to decide whether there will be a meaningful campaign or not, how vibrant it will be, how much information voters receive, and how parties are able to convey their message. It may also keep election contestants in the dark until very late regarding how they can organise their campaigns. Most importantly, the absence of a legal framework inhibits guaranteeing legal protection of

212 Michael Lidauer and Gilles Saphy voters’ and candidates’ rights to freedom of expression, peaceful assembly and association, all of which are particularly at stake during campaigns. There is also no mention of campaigning in the media in the law. It must be noted that in past elections the Election Commission decided to grant airtime to contestants. While this is in the interest of enhancing voters’ information, access to the media should not rest upon the goodwill of the Commission, and should be defined in the Laws. The specific context of a transition from an authoritarian regime means that some of the political forces have had little opportunity to convey any message to the electorate. The current electoral legislation does not provide a framework for the regulation and supervision of campaign finances. Right to an Effective Remedy The judiciary comprises the Supreme Court of the Union, the High Courts of the regions/ states and the courts at district and township level. The Chief Justice and the other judges of the Supreme Court are appointed by the President. The Constitution also establishes a Constitutional Tribunal appointed by the President, which has jurisdiction to interpret the Constitution, assess the constitutionality of laws and settle disputes between constitutional bodies. While the Constitution establishes a procedure of direct petition to the Supreme Court for the protection of fundamental rights, this may appear too remote and expensive for ordinary citizens. Under section 377, the protection of fundamental rights listed in Chapter VIII of the Constitution is obtained by direct application to the Supreme Court, a provision that seems to exclude the possibility of lower courts dealing with cases involving fundamental rights. In so far as it is disconnected from the process in ordinary courts, this procedure might not provide for decisions of the Supreme Court on fundamental rights to inform the whole judicial system. In addition, the procedure cannot serve to protect electoral rights, since the decisions of the Election Commission are not subject to any appeal. Other provisions of the Constitution on the Constitutional Tribunal could provide protection for fundamental rights, in particular section 323, according to which if a question regarding the constitutionality of a law arises in a court case, the court concerned must forward the case for resolution by the Constitutional Tribunal. Voters and candidates are entitled to contest the result of an election by raising it directly with the Election Commission itself. The process requires the Election Commission to appoint an Electoral Tribunal, which includes Election Commission members. Under section 71 of the Pyithu Hluttaw Election Law, the Electoral Tribunal can invalidate an election in case of malpractice or violation of the law or in a situation where ‘it is apparent that the election is not free and fair’. This wording lacks precision and could lead to arbitrary interpretation. Finally, voters and candidates might be wary of lodging complaints before the Election Commission, since under section 64 of the Election Laws a plaintiff who loses a case faces criminal charges punishable with imprisonment. This is a rather extraordinary approach to the notion of abuse of judicial process, and section 64 is perhaps the most problematic provision of the entire legal framework as it relates to elections.19 19 Section 64: ‘Whoever is found guilty of dishonestly and fraudulently lodging any criminal proceedings against any person regarding offences relating to election shall, on conviction be punishable with imprisonment for a term not exceeding three years or with fine not exceeding three hundred thousand kyats or with both.’

Elections and the Reform Agenda 213 Election Observation Over the past two decades, international election observation has become increasingly accepted worldwide as a tool to assess election processes against national legislation and international principles for democratic elections (for example, see Carothers 1997; Bjornlund 2004; Binder and Pippan 2008; Hyde 2011; Kelley 2012). National election observation serves slightly different purposes but has also become a widespread practice, in particular in situations of political transition (for example, see Bjornlund and Timberman 1996; Nevitte and Canton 1997; OSCE/ODIHR 2003; O’Grady et al 2005). In general, election observation is valued for its potential to enhance the integrity of an election process and its capacity to deter fraudulent practices and increase voters’ confidence in the process.20 There is no provision allowing election observation in the Myanmar electoral framework, nor are there rules or written procedures to regulate the invitation, accreditation and activities of observers from international organisations. Only the election rules offer the possibility of 10 citizens from the public attending the counting process (s 66a). This is a very limited avenue for observers to witness the counting, and offers no reliable guarantee of access. AVENUES AND ACTORS IN TRANSITION

The dynamics of the transition process have opened avenues for old and new societal actors to take part in the reforms. The relaxation of the freedoms of assembly and expression,21 as well as the introduction of new institutions, most notably the Parliament, encourages political parties and civil society organisations to contribute to the shaping of the political process. In addition, international actors are engaged with national stakeholders in ways that were not previously possible and contribute to a process of change with an uncertain outcome. Departing from Lindberg’s (2009) notion of elections as a mode of transition, elections can be viewed as ‘engines of change’ whereby the process to elaborate a functional legal framework for elections can contribute to democratic change in itself. At the same time, the intensification of the process can also produce unexpected outcomes. Developments in Parliament Most Members of Parliament elected to one of the Union or state/region-level houses have not had any experience in politics. The assertion by the Parliament of its prerogatives 20 See Declaration of Principles for International Election Observation, and Code of Conduct for International Election Observers, commemorated 27 October 2005, at the United Nations, New York; and Declaration of Global Principles for Nonpartisan Election Observation and Monitoring by Citizen Organizations and Code of Conduct for Non-partisan Citizen Election Observers and Monitors, commemorated 3 April 2012, at the United Nations, New York. 21 The conditions to meet and speak in public began to change soon after the dismantling of Military Intelligence in 2004 (Desaine 2011: 49). Media freedoms began to increase after the 2010 elections, and prepublication censorship was abolished in August 2012 (Lidauer 2012: 96–99). Media reforms are ongoing, with the introduction of new laws and oversight institutions.

214 Michael Lidauer and Gilles Saphy since January 2011 has therefore been a surprising element of the ongoing transition. Despite the overwhelming majority of the USDP and the presence of 25 per cent appointed military officers among the members of all houses, MPs started to vote across party lines from an early stage, and military representatives do not always vote in a block. The 15 established parliamentary committees at the Union level are reported to have one third non-USDP members each, which furthers debates and exchange (Kean 2013). Under the leadership of the Speaker of the Lower House, Thura Shwe Mann, the national legislature started to challenge decisions of the executive, in particular the Ministry of the President’s Office. Most prominently, a controversy over the status of parliamentary committees led to the resignation of the Constitutional Tribunal in late 2012 as it was threatened with impeachment by Parliament (Poling and Bissonnette 2012). These and other disagreements between the legislature and the executive are increasingly perceived as challenges to the power of President U Thein Sein by the Speaker, who has aspirations to the presidency at the next election (Robinson 2013). Daw Aung San Suu Kyi, as a fellow parliamentarian, is now seen to be closer to the Speaker than the President but desires the presidency herself. Civil Society Activism It had been observed that civil society had been ‘murdered’ in Myanmar (Steinberg 1999: 8) but in the later years of the military government it re-emerged at the local level with the provision of services that the state did not provide, such as education and health (Lorch 2006; Desaine 2011). In the absence of governmental support in that regard, some civil society organisations began to launch discrete civic and voter education activities before the referendum of 2008 to offer opportunities for information about the new framework. Building on this new kind of activism, under-cover election observation activities emerged. At least two larger networks prepared carefully to monitor the 2010 elections below the government’s radar. This provided a means to be politically engaged without necessarily being politically partisan, especially for the younger generation. It also required a great deal of courage in light of the uncertain political environment at the time (Lidauer 2012). Due to Aung San Suu Kyi’s endorsement of the process, election observation grew in popularity in 2012 but on rather short notice, and with a focus only on the election day. Some of the individuals involved made specific use of section 66a of the election rules to observe the counting of results in polling stations. At least four groups issued short reports about their findings, which revealed the need for further training in election observation and in the communication of monitoring results. All election observation exercises were meant to be learning exercises, with the intention of becoming more professional in the future (Lidauer 2012). CSOs also started to explore further avenues for civic and voter education, founded schools and developed capacities as brokers and facilitators in meetings between opposition politicians, the government and foreign agencies. The government itself encouraged the return of long-time dissidents to become members of governmental think-tanks and institutions. The emergence of a nationwide, but centrally coordinated, citizen observer network to monitor the next general elections is possible if civil society actors decide to work together.

Elections and the Reform Agenda 215 International Involvement Between 2010 and 2012, election observation by citizens has become a sort of ‘social capital’ that attracted the attention of foreign donors. Prior to the start of the reform process, international agencies could not operate openly in Myanmar, although some discreet foreign support existed. It is not always possible to disentangle national initiatives from such international support. When asked about the roots of their efforts to observe the elections in 2010, one of the individuals involved answered that it was ‘not a home-grown idea, but a home-grown commitment’.22 However, in 2010 ‘most international donors refused to fund projects that they saw as supporting the elections, as they deemed the process illegitimate or questionable once the election laws had been released’ (CPCS 2011: 47). After the by-elections of 2012, which led the international community to relax its sanctions on Myanmar, the country saw the increased arrival of international organisations and INGOs dedicated to the promotion of democracy.23 Continued difficulties for international organisations in establishing the legal basis necessary to operate inside the country are aggravated by the fact that few Myanmar officials have had any experience in dealing with foreigners in the past decades. Despite this, the situation has now changed profoundly. International donors, such as the European Union, the United States, the United Kingdom, Australia, Switzerland, Norway and others support the development of democratic procedures and the enhancement of the electoral process. Democracy promotion in Myanmar has become a popular and prestigious undertaking for those international organisations that have already accumulated significant experience with political transition elsewhere. Among the organisations working in relation to political party development, support to Parliament, and civic and voter education that have established a base in Myanmar, or are in the process of doing so, are US, German and other European political foundations, the Asia Foundation and the Open Society Foundation. Some of these organisations focus directly on enhancing electoral integrity.24 These opportunities for interaction between international and national actors allow a variety of new institutional co-operations. For example, foreign academics were invited to teach political science and law at the University of Yangon, which was unthinkable under the SLORC/SPDC regimes. In 2012 Sydney Law School organised a workshop on ‘Myanmar Constitutional Democracy’ with members of the government, political parties, NGOs, universities and the media. The European Union was the first organisation to offer direct electoral support. Following an Election Expert Mission in June–July 2012 the European Union started to deploy a team of technical experts in early 2013, for the first time, working with the Union Elections Commission. Without any previous experience of such a relationship during the military regime, it is quite remarkable that the Election Commission agreed to host foreign consultants at their premises. Other organisations are now also working with the Election Commission, in particular the International Foundation for Electoral Systems. On 26 April 2013 the commission convened a first roundtable of stakeholders, including governmental agencies, political parties, civil society Anonymous interview conducted on 30 August 2012 (online). For an introduction to international democracy promotion, see, for example, Carothers (1999) and Burnell (2000). For a particular emphasis on electoral assistance, see Kumar (1998, 2000) and Reilly (2002). 24 For example, the International Foundation for Electoral Systems (IFES) and the International Institute for Democracy and Electoral Assistance (International IDEA). Other organisations are in the process of establishing agreements with the Myanmar government. 22 23

216 Michael Lidauer and Gilles Saphy organisations and members of international organisations. Such a meeting was unprecedented in Myanmar and serves as a good example of how the ‘electoral agenda’ can further dialogue between different stakeholder groups. High-level visits, such as those of former US President Carter, contribute to a deepening of this agenda, as the work of the Carter Center has a particular focus on electoral processes and their observation. Facilitated by INGOs or supporting governments, the Election Commission Chairperson and members of the commission have also been invited to study other elections in the region (for example, in Pakistan and Nepal), in the United States or in Europe, and to establish contacts with other election management bodies at international meetings. Myanmar, like Cambodia or Timor-Leste before it, is becoming yet another arena to which representatives of international organisations bring their acquired experiences and transport international standards relating to electoral law, election management and other elements of the electoral process. Future developments will be shaped, in part, by the individual skills of personnel in electoral support organisations to establish ties with Myanmar authorities and their capacity to advocate international standards. While different agencies compete to offer programmes for democracy support, their skills in proposal writing and capacity to secure funds from donors may also be determining factors.

POTENTIAL FOR ELECTORAL REFORMS

Following the declaration of the ‘roadmap to democracy’, and prior to the inauguration of the new regime, reform debates emerged on electoral reform. All civil society and political party stakeholders who opted for a participation in the electoral process in 2010 were clear that they would demand constitutional reforms. Indeed, many fundamental aspects of the elections, such as the definition of single-member electoral districts for elections to the Pyithu Hluttaw, the right to vote and to stand for elections, and the structure and nomination of the Union Election Commission, are provided for in the Constitution. This makes modifying the framework for elections particularly challenging in a system where the relevant provisions of the Constitution can only be amended by a qualified majority of 75 per cent of all members of the Pyidaungsu Hluttaw, followed by a referendum (see Williams, this volume). From this point of view, it is conceivable that any fundamental change to the basic principles of the elections in Myanmar would have to be made through inclusive agreement between political stakeholders. In July 2013, following a proposal established by USDP MPs, Parliament voted to launch a constitutional reform process and to form a constitutional review committee to provide recommendations on possible amendments (Eleven Media, 27 July 2013). The outcome of this review could directly affect the electoral process. On substance matters, the committee could decide to change the electoral system, to change the regulations for the election of the President, or the candidacy requirements for the presidency, which could allow Daw Aung San Suu Kyi to run as a candidate – all of which appears rather unlikely prior to 2015 unless an inclusive political deal can be found. Apart from substantial changes to electoral matters, any constitutional review process may also have an impact on the remaining time frame before the next elections as constitutional amendments could lead to changes in the electoral law, rules and regulations, which will have to be addressed. If any of the concerned paragraphs are changed, and MPs decide on a

Elections and the Reform Agenda 217 change with a majority of 75 per cent in Parliament, the government would be formally required to hold a public referendum on these issues. Most likely, the Election Commission would be responsible for organising the referendum, an undertaking that would require substantial human resources and time. Another factor that could demand significant time and attention from the Election Commission would be another byelection prior to 2015, as there are still vacant seats in the legislature. Electoral System Choice Soon after the by-elections, a delegation of smaller political parties led by the National Democratic Force (NDF), a splinter party of the NLD which contested the 2010 elections, approached the Election Commission and the office of the President with a request to change the electoral system from the existing FPTP to proportional representation (NLM, 19 July 2012). The Election Commission transferred this question to the Constitutional Tribunal, which soon after resigned before responding. The Election Commission also seems to have addressed this question to the Parliament (Eleven Media, 2 July 2013). In September 2013 the Election Commission Chairman was still waiting for guidance on the issue (Win Ko Ko Latt 2013). While the topic has generated heated debates in some elite circles, the question of electoral system choice has been mostly discussed in terms of the FPTP versus proportional representation, without mention of the possibility of mixed systems, or the consequences of a change of the electoral system for the administration and timing of elections. The electoral system is the manner in which votes cast for parties or candidates are translated into seats in the legislature.25 With its potential impact on the comparative strength of the parties represented in the Parliament elected in 2015, the electoral system is a highly sensitive political topic, and offers opportunities and threats for all political parties. While it is generally admitted that international instruments do not require any particular electoral system, the system chosen must nevertheless respect the fundamental principles enshrined in UDHR and ICCPR – in particular, equal suffrage.26 Debates on electoral systems are naturally influenced by the expectations of the political forces as to what system would be the most profitable for their access to parliamentary seats. The approach and positioning of the various political actors regarding the future electoral system are already partly informed by the results of the April 2012 byelections, and the landslide victory of the NLD.27 For some political parties, not least the USDP, the results of the by-elections have revealed an important threat. Admittedly, the 25 For a comprehensive overview, see European Commission for Democracy through Law (Venice Commission), ‘Report on Electoral systems – Overview of Available Solutions and Selection Criteria’, CDL-AD(2004)003, www. venice.coe.int/webforms/documents/CDL-AD%282004%29003.aspx. 26 General Comment No 25: The right to participate in public affairs, voting rights and the right of equal access to public service (art 25): 12/07/1996. CCPR/C/21/Rev.1/Add.7, Para 21: ‘Although the Covenant does not impose any particular electoral system, any system operating in a State party must be compatible with the rights protected by art 25 and must guarantee and give effect to the free expression of the will of the electors. The principle of one person, one vote, must apply, and within the framework of each State’s electoral system, the vote of one elector should be equal to the vote of another.’ 27 Interestingly, a move towards PR seems also to have been debated by the losing parties after the 1990 elections. A change of the electoral system was not, however, included in new constitutional models around 2000, either by the National Convention or by ethnic opposition (cf Reynolds et al 2001). The debate appears to be inspired by international exchange visits and foreign consultants but has now been taken up locally.

218 Michael Lidauer and Gilles Saphy next elections are in 2015, and the NLD could lose support before then, but the possibility of another landslide victory is real, in particular if the FPTP system is maintained. FPTP tends to result in a high number of votes lost, and in substantial distortions between the votes won and the number of seats obtained. This was illustrated by the landslide win by NLD in the 1990 elections, where the NLD’s near 60 per cent of the votes translated into 80 per cent of the seats (392 of the 492 seats contested). There is a ‘majority effect’ associated with FPTP, which tends to amplify considerably the dominance of the political force that comes first. The current FPTP system for the Pyithu Hluttaw derives from section 109 of the Constitution. Nevertheless, the extent to which this provision prescribes 330 singlemember constituencies based on townships is a matter for discussion. In particular it could be argued that section 109 could allow the adoption of a mixed system under which the number of single-member constituencies elected through FPTP could be reduced by combining several townships, allowing the adoption of a proportional or of a compensatory allocation system for the remaining seats. A clarification of this matter by the Constitutional Tribunal would be useful for the discussions to come (Lemargie et al, 2014). The matter would appear to be somewhat simpler as regards the Amyotha Hluttaw’s elections, since the use of single-member constituencies derives from the election law, not the Constitution. The particular implementation of the FPTP system in Myanmar has also raised a question of breach of equal suffrage. The current constituencies for the election to the Pyithu Hluttaw follow, with few exceptions, the boundaries of the townships. The creation of new constituencies that do not correspond to the country’s administrative divisions would imply a new drawing of constituency boundaries, possibly based on the 2014 census results. The political implications of this exercise, and the time needed, cannot be underestimated. This process is usually long and can be politically controversial if not conducted in a transparent and consultative manner, and in accordance with strict criteria.28 The method for electing the President and the eligibility requirements may also become topical within the context of the reform discussions. Daw Aung San Su Kyi has publicly expressed interest in the presidency (Fuller 2013), and, as mentioned, this would involve lifting the current constitutional provision disqualifying her from running. Beyond that point, political forces and institutions of Myanmar might find it expedient to discuss the merits of amending the system for electing the President. Options could involve, inter alia, keeping indirect election by Parliament but without the intermediate pre-selection by the three committees; or a direct election of the President, as part of a wider overhaul of the institutional framework. The institutional relationship between the states/regions and the central level are expected to become an important item in the reform discussions, with a possible departure from the current unitary model of direct appointment by the President of the heads of the executive in the states and regions, to a more localised form of designation, including a direct election. Discussions might also cover administrative matters such as the current reliance of the regions and states on officers of the General Administration Department, a department of the Ministry of Home Affairs, for their administration.29 28 See ACE Electoral Knowledge Network (aceproject.org/ace-en/topics/bd/bda/onePage) on ‘Delimiting Electoral Districts’, or Venice Commission, ‘Code of Good Practice in Electoral Matters’, I.2.2. 29 See Nixon et al (2013) for the first detailed report on state and region governance in Myanmar. This report contains an explanation of the role and function of the General Administration Department.

Elections and the Reform Agenda 219 Improving Election Management International obligations leave a wide margin of appreciation to state parties as regards election management. Both the UN Human Rights Committee30 and the Venice Commission31 emphasise the importance of the independence and impartiality of the election management body. Building upon the Venice Commission’s ‘Code of Good Practice’, independence could be enhanced by strengthening the statutory independence of the UEC members, in particular through statutory provisions on their nomination, mandate, security of tenure, and protection against arbitrary removal, among others, as well as strengthening the functional independence of the Election Commission. The latter could include budgetary independence; the professionalisation of the Election Commission staff; specific operational means; and/or an obligation for state structures to meet the needs of the Election Commission, among others. The institutional set-up provided by the 2008 Constitution fails to offer sufficient guarantees of independence when considered from these two angles. In addition, the question of the Election Commission nomination deserves further consideration. While the formation of the whole Election Commission by a single appointing authority had its rationale in the initial steps of the transition process, it could be less justified in the future, in view of the existence of the Pyidaungsu Hluttaw and other constitutional bodies that could be involved in the formation process. International comparative experience provides numerous examples of nomination mechanisms for election commissions that are more forthright in encouraging independence, inclusiveness and consultation (Lopez-Pintor 2000; International IDEA 2006). Since the inauguration of the new government, the Union Election Commission has witnessed some changes. Between the 2010 general elections and the 2012 by-elections, the number of commissioners was reduced from 17 to six, and a new Chairperson appointed. Since then, there has been an increase of the Election Commission staff at the central level, including the nomination of a general director. The Election Commission has also started to recruit senior staff (deputy directors) to represent the commission at state/region level, has opened a public relations department, and, in late 2013, began to establish a strategic plan towards 2015. These are initial steps to develop the Election Commission’s capacity and to enhance its engagement with voters and political parties. International advisors have started to develop a training agenda for Election Commission staff and discuss several of the issues outlined above. The outcome of this process remains uncertain, however. Technical Reforms Another major task of election administration will be the preparation of a new voter register. It was long a widely-held perception in Myanmar that new voter lists would be an outcome of the Population Household Census scheduled for 31 March to 10 April 2014, which is not correct. Although there can be lessons learnt from the logistical conduct of the census, a census collects anonymous socio-economic data, which are fundamentally different to the individual data relevant to the electoral register. 30 31

UN Human Rights Committee General Comment 25, Para 20. The Venice Commission, ‘Code of Good Practice in Electoral Matters’, point II.3.1.

220 Michael Lidauer and Gilles Saphy Areas of legal reform that are not related to constitutional provisions and could thus be more easily amended include, for example, the procedures for advance ballots, provisions for international and national election observation, and enhanced transparency mechanisms in the election administration. Indeed, the confidence of the electorate in the voting, counting and tabulation process could be greatly improved if a series of simple measures were included in the laws. These include clear rules regarding the process of printing and conditioning of ballot papers; traceability measures such as handover forms at each level; copies of the polling station result protocols for representatives of the election contestants; and the publication of a complete set of disaggregated results for each constituency. These measures would increase candidates’ and voters’ confidence in the process. If these issues are not addressed prior to 2015, the election management body will be open to criticism for lack of electoral integrity. Combined with possible institutional reforms at the Election Commission itself, the election management body can expect a busy agenda ahead of the next general elections. CONCLUSION

This chapter has offered an analysis of the role of elections and their reform in Myanmar’s ongoing transition. Beginning with a brief review of the electoral history emphasising most recent events and referring to elections as a ‘mode of transition’, the chapter focused on institutions, rights and processes as anchor points for electoral reform. It supports Lindberg’s theory of democratisation by elections with an understanding of elections – and electoral reform in the longer electoral cycle periods ahead of election day – as ‘engines of change’. The chapter has undertaken an in-depth analysis of the legal framework for elections against international standards and then looked at new avenues and actors of change who contribute to the shaping of this transition, and who are themselves in flux. Apart from military elites (who are not covered by this analysis), these actors are representatives of the newly elected government, such as the Union Election Commission; elite politicians who were senior military officers and have now taken positions in the new governmental framework; opposition politicians who interact with the government in new ways, most notably in Parliament; and civil society organisations who, by engagement in the electoral process, find new ways of becoming politically involved without necessarily being partisan. All these actors are now encountering international advisors on electoral governance who contribute to emerging discourses, such as on electoral system choice, and provide perspectives on the technicalities of amendments. The outcome of their encounters – which is part and parcel of the political process and the anticipated electoral competition ahead of elections in late 2015 – remains open, however. While the conduct of the 2012 by-elections showed some improvement from the 2010 general elections, these advances were largely considered the product of the goodwill of the country’s leadership, rather than indicating a solid legal and institutional framework for elections. Further electoral reforms are linked to the beginning of a constitutional review process, which might have an impact on far-reaching areas of governance, such as the role of the military, models of decentralised governance, and electoral system choice. The method and eligibility rules for the election of the President might be at stake as well. In addition, even without changes to the constitutional framework, the election administration has opportunities to enhance the integrity of the process by

Elections and the Reform Agenda 221 introducing procedural transparency mechanisms, with increased training for the Election Commission; a new voter register; and rules for the monitoring of the electoral process by international and national observers. Some of these will require more political will than others. Any of the above-mentioned possible developments can contribute to the integrity of elections. However, both the electoral reform process and the outcome of elections in 2015 are embedded and interwoven with greater political debates; the contestation of power between elites; continued economic challenges; efforts to achieve inter-communal and inter-religious peace and reconciliation; and durable political settlements with ceasefire groups. The impact of electoral reforms on these other fields of governance cannot be underestimated. REFERENCES Binder, Christina and Pippan, Christian (2008) ‘Election Monitoring, International’ in Rüdiger Wolfrum (ed), Online edition of the Encyclopaedia of Public International Law (Oxford, Oxford University Press), www.mpepil.com/subscriber_article?script=yes&id=/epil/entries/ law-9780199231690-e1036&recno=7&searchType=Quick&query=Binder. Bjornlund, Eric (2004) Beyond Free and Fair: Monitoring Elections and Building Democracy (Baltimore, MD, Johns Hopkins University Press). Bjornlund, Eric and Timberman, David (1996) Making Every Vote Count: Domestic Election Monitoring in Asia. (Washington, DC and Manila, National Democratic Institute for International Affairs), www.democracyinternational.com/sites/default/files/Making%20Every%20Vote%20 Count%20Domestic%20Election%20Monitoring%20in%20Asia.pdf. Burnell, Peter (ed) (2000) Democracy Assistance: International Co-operation for Democratization (London, Frank Cass). Carothers, Thomas (1997) ‘The Observers Observed’ 3(7) Journal of Democracy 17. —— (1999) Aiding Democracy Abroad: The Learning Curve (Washington, DC, Carnegie Endowment for International Peace). —— (2010) ‘The Continuing Backlash against Democracy Promotion’ in Peter Burnell and Richard Youngs (eds), New Challenges to Democratization (New York, NY, Routledge). Centre for Peace and Conflict Studies (CPCS) (2011) 2010 Myanmar General Elections. Learning and Sharing for Future (Phnom Penh, CPCS Report). Dahl, Robert A (1971) Polyarchy: Participation and Opposition (New Haven, CT, Yale University Press). —— (1989) Democracy and its Critics (New Haven, CT, Yale University Press). Davis-Roberts, Avery and Carroll, David (2010) ‘Using International Law to Assess Elections’ 17(3) Democratization 416. Desaine, Lois (2011) ‘The Politics of Silence. Myanmar NGO’s Ethnic, Religious and Political Agenda’, IRASEC Occasional Paper 17. Eleven Media (13 June 2013) ‘Myanmar Ethnic Federation to Establish Federal Union Party’. —— (2 July 2013) ‘Speaker Rules against Proportional Representation Debate’. —— (27 July 2013) ‘Myanmar’s Parliament Approves Committee to Re-examine the Constitution’. Fink, Christina (2009) Living Silence in Burma: Surviving under Military Rule, 2nd edn (Chiang Mai, Silkworm Books and London & New York, NY, Zed Books). Fuller, Thomas (2013) ‘Advocate in Myanmar Hopes to Seek Presidency’, New York Times, 6 June. Horsey, Richard (2010a) Countdown to the Myanmar Elections, Social Science Research Council, Conflict Prevention and Peace Forum, 25 August. —— (2010b) Outcome of the Myanmar elections, Social Science Research Council, Conflict Prevention and Peace Forum, 17 November.

222 Michael Lidauer and Gilles Saphy Hyde, Susan D (2011) The Pseudo-Democrat’s Dilemma (Ithaca, NY, Cornell University Press). International Crisis Group (ICG) (2001) Myanmar: The Role of Civil Society, Asia Report 27. International IDEA (2002) International Electoral Standards: Guidelines for Reviewing the Legal Framework for Elections (Stockholm, International IDEA). —— (2006) Electoral Management Design: The International IDEA Handbook (Stockholm, International IDEA). Kean, Thomas (2013) ‘Burma’s Biggest Win: Its Legislature’, thediplomat.com/2013/02/burmasbiggest-win-its-legislature. Kelley, Judith G (2012) Monitoring Democracy: When International Election Observation Works, and Why it Often Fails (Princeton, NJ, Princeton University Press). Köster, Ute (ed) (2010)‚ ‘Die Qual der Wahl. Chancen und Grenzen des politischen Wandels in Burma/Myanmar’ [Spoilt for choice. Chances and limits of political choice in Burma/Myanmar] 34 Focus Asien. Kumar, Krishna (ed) (1998) Postconflict Elections, Democratisation and International Assistance (Boulder, CO, Lynne Rienner). —— (2000) ‘International Assistance for Post-Conflict Elections’ in Peter Burnell (ed), Democracy Assistance. International Co-operation for Democratization (London, Frank Cass). Lemargie, Kyle, Reynolds, Andrew, Erben, Peter and Ennis, David (2014) ‘Prospects for Electoral System Reform in Myanmar’ in Nick Cheesman, Nicholas Farrelly and Trevor Wilson (eds), Debating Democratization in Myanmar (Singapore, Institute of Southeast Asian Studies). Lidauer, Michael (2012) ‘Democratic Dawn? Civil Society and Elections in Burma/Myanmar 2010/2012’ 31(2) Journal of Current Southeast Asian Affairs 87. Lindberg, Staffan (ed) (2009) Democratisation by Elections: A New Mode of Transition (Baltimore, MD, Johns Hopkins University Press). Lopez-Pintor, Rafael (2000) Electoral Management Bodies as Institutions of Governance (United Nations Development Programme (UNDP), www.undp.org/content/dam/aplaws/publication/ en/publications/democratic-governance/dg-publications-for-website/electoral-managementbodies-as-institutions-of-governance/Elections-Pub-EMBbook.pdf. Lorch, Jasmin (2006) ‘Civil Society under Authoritarian Rule: The Case of Myanmar’ 25(2) Südostasien aktuell 3. Maung Maung (1963) The Role of Political Parties in Burma from Independence to the Coup D’etat of 2 March 1962 (Rangoon University, MA thesis). Myanmar Institute of Strategic and International Studies (2004) Myanmar Roadmap to Democracy: The Way Forward. Seminar on Understanding Myanmar, presented by H-E. U Khin Maung Won, Deputy Minister for Foreign Affairs of the Union of Myanmar Yangon, 27–28 January, www.ibiblio.org/obl/docs/KMWroadmap104.htm. Nevitte, Neil and Canton, Santiago A (1997) ‘The Role of Domestic Observers’ 8(3) Journal of Democracy 47. New Light of Myanmar (NLM) (19 July 2012) ‘President U Thein Sein meets Group of Friends of Democracy Parties’. Nixon, Hamish, Joelene, Cindy, Kyi Par Chit Saw, Thet Aung Lynn and Arnold, Matthew (2013) State and Region Governments in Myanmar (Yangon, Myanmar Development Research Institute and The Asia Foundation). Norris, Pippa (2012) The Concept of Electoral Integrity, Working Paper v 1.0, 8 November, www. electoralintegrityproject.com/. O’Grady, Paul, Lopez-Pintor, Rafael and Stevens, Mark (eds) (2005) The Work of Domestic Observer Groups around the World (Sweden, ERIS, Elanders Graphic Systems AB). OSCE/ODIHR (2003) Handbook for Domestic Election Observers, www.osce.org/odihr/ elections/70289?download=true. Poling, Gregory and Bissonnette, Kathleen (2012) ‘Myanmar’s Crisis Calls for Constitutional

Elections and the Reform Agenda 223 Overhauling, Center for Strategic and International Studies (CSIS), csis.org/publication/ myanmars-crisis-calls-constitutional-overhauling. Reilly, Benjamin (2002) Electoral Assistance and Post-Conflict Peacebuilding – What Lessons have been Learned?, aceproject.org/ero-en/topics/elections-security/Reilly-2505.pdf. Reynolds, Andrew, Stepan, Alfred C, Zaw Oo and Stephen, Levine I (2001) ‘How Burma Could Democratize’ 12(4) Journal of Democracy 95. Robinson, Gwen (2013) ‘The Contenders: In Burma, the Struggle for Power is Entering a Risky New Phase’ 12 July, www.foreignpolicy.com/articles/2013/07/12/the_contenders. Schedler, Andreas (2002) ‘The Nested Game of Democratization by Elections’ 23(1) International Political Science Review 103. —— (2009) ‘The Contingent Power of Authoritarian Elections’ in Staffan I Lindberg (ed), Democratization by Elections: A New Mode of Transition (Baltimore, MD, Johns Hopkins University Press). Schmitter, Phillipe C, Whitehead, Laurence and Guillermo O’Donnell (eds) (1986) Transitions from Authoritarian Rule: Comparative Perspectives, vol 3 (London, Johns Hopkins University Press). Steinberg, David (1999) ‘A Void in Myanmar: Civil Society in Burma’ in Burma Centrum Netherlands (BCN) and Transnational Institute (TNI) (eds), Strengthening Civil Society in Burma (Chiang Mai, Silkworm Books). Suksi, Marku (2002) ‘The Electoral Cycle: On the Right to Participate in the Electoral Process’ in Veronika Hinz and Marku Suksi (eds), Election Elements: On the International Standards of Electoral Participation (Åbo, Institute for Human Rights). Taussig, HC (1956) ‘Burma in the Positive’ 10(8) Eastern World 16. Taylor, Robert H (1996) ‘Elections in Burma/Myanmar: For Whom and Why?’ in Robert H Taylor, The Politics of Elections in Southeast Asia (Cambridge, Cambridge University Press). Tonkin, Derek (2007) ‘The 1990 Elections in Myanmar: Broken Promises or a Failure of Communication?’ 19(1) Contemporary Southeast Asia 33. Transnational Institute (TNI) and Burma Center Netherlands (BCN) (2010) Burma’s 2010 Elections: Challenges and Opportunities, Burma Policy Briefing Paper no 2, June 2010. Tuccinardi, Domenico, Guerin, Paul, Bargiacchi, Fabia and Maguire, Linda (2007) ‘Focus on Effective Electoral Assistance’, ACE online source, aceproject.org/ace-en/focus/focus-oneffective-electoral-assistance. Win Ko Ko Latt (2013) ‘UEC Waits on Electoral System Change Proposal’, Myanmar Times, 18 September, www.mmtimes.com/index.php/national-news/8194-uec-waits-on-electoral-systemchange-proposal.html.

INTERNATIONAL TREATIES AND REGIONAL STANDARDS Declaration on Criteria for Free and Fair Elections, unanimously adopted by the Inter-Parliamentary Council at its 154th session, Paris, 26 March 1994. European Commission for Democracy through Law (Venice Commission), ‘Code of Good Practice in Electoral Matters’, CDL-AD(2002)023. European Commission for Democracy through Law (Venice Commission), ‘Report on Electoral systems – Overview of Available Solutions and Selection Criteria’, CDL-AD(2004)003. European Commission for Democracy through Law (Venice Commission), ‘Guidelines on Political Party Regulation’, CDL-AD(2010)024. International Covenant on Civil and Political Rights 1966 (ICCPR) Universal Declaration of Human Rights 1948 (UDHR) UN Human Rights Committee General Comment No 25: The right to participate in public affairs, voting rights and the right of equal access to public service (art 25), 12 July 1996.

224 Michael Lidauer and Gilles Saphy LAWS The Amyotha Hluttaw Election Law No 4/2010 (State Law and Order Restoration Council Law Burma Citizenship Law 1982 (Pyithu Hluttaw Law) The Constitution of the Socialist Republic of the Union of Burma 1974 The Constitution of the Union of Burma 1947 The Constitution of the Republic of the Union of Myanmar 2008 The Law amending the Political Party Registration Law No 11/2011 (Pyidaungsu Hluttaw Law) The Political Parties Registration Law No 2/2010 (State Law and Order Restoration Council Law) The Pyithu Hluttaw Election Law No 3/2010 (State Law and Order Restoration Council Law) The Region and State Hluttaw Election Law No 5/2010 (State Law and Order Restoration Council Law) The Union Election Commission Law No 1/2010 (State Law and Order Restoration Council Law)

12 A Principled Approach to Company Law Reform in Myanmar MELINDA TUN

T

HIS CHAPTER EXPLORES the dynamics of company law reform in Myanmar drawing on comparative lessons in law reform. The first part of the chapter provides an introduction to the current state of company law in Myanmar, emphasising its common law features, and explores the need for reform. The second part outlines the key issues for company law reform in Myanmar and makes a case for taking a principled approach. The third part considers company law reform in Myanmar in the wider context of the reforms occurring in the country. The final part looks at the design of the company law reform process and considers some important aspects of the process in the context of Myanmar. BACKGROUND ON MYANMAR COMPANY LAW

The Myanmar (Burma) Companies Act 1914 is the principal law governing companies and the conduct of corporate affairs in Myanmar today. In both form and substance, the Companies Act is a vestige of the country’s past as a British colony and forms part of the Burma Code, which remains in effect to this day. At its inception, the Companies Act was modelled on the Indian Companies Act 1913, which was, in turn, modelled on the English Companies Act 1908. Prior to independence in 1948, amendments were made to the Companies Act to reflect modifications to the Indian Companies Act, which was based on amendments made to the English companies legislation (Ma Ma Thant 2011). However, after Myanmar’s independence in 1949, the Companies Act remained more or less ‘frozen in time’ and has only been amended four times, in 1955, 1959, 1989 and 1991, in fairly minor respects (Ma Ma Thant 2011). As such, Myanmar companies continued, for all intents and purposes, to be governed by the United Kingdom (UK) company law as it was prior to the country’s independence, while modern economies around the world, including the UK, have undertaken significant reforms in the area of corporate regulation and governance. A positive aspect of the Companies Act’s progeny is that it contains the basic company law principles that international companies are familiar with in other Commonwealth countries. In particular, the Companies Act shares many common features with its counterparts in neighbouring countries like Singapore and Malaysia, which also inherited

226 Melinda Tun British company law and used it as a foundation in the development of their company law regime. As will be argued later in this chapter, reform of the Myanmar company law should be mindful of the Companies Act’s commonalities with company law in common law countries and seek to rely on the convergence of company law among developed jurisdictions.

The Companies Act in Law and Practice In an era of voluminous corporate legislation, the Companies Act retains a lean structure, containing only 287 sections and three schedules. It is separated into 12 parts according to core topics such as incorporation, management and administration, share capital matters and winding up. It is also supported by subsidiary legislation in the form of the Companies Regulations 1957 and Companies (Winding-up) Rules 1940. A reader of the Companies Act from another common law jurisdiction would be comforted by the familiarity of most of the basic features of company law in Myanmar. For example, the three types of companies that can be incorporated under the Companies Act can be found in other common law jurisdictions – companies limited by shares, companies limited by guarantee and unlimited companies. Companies are further categorised as either a ‘private company’, which is a company formed by two or more persons with restrictions on matters such as membership, right to transfer shares and public invitations for shares and debentures; or a ‘public company’, which is a company that is not a private company formed by seven or more members. Companies incorporated under the Companies Act are governed by constitutional documents in the form of a memorandum and articles of association, and are managed by appointed directors and a manager. The same reader would, however, also pick up some notable omissions of fundamental aspects of company law as found in other common law jurisdictions, such as securities law (see Tun Zaw Mra, this volume), financial reporting requirements in line with modern accounting practices, minority shareholder rights and statutory statement of directors’ duties. There are historical legacies in the Companies Act incongruent to the present circumstances of Myanmar, such as provisions for registers to be kept in the UK (aptly called the ‘British Registers’). There are also deficiencies in the form of the Companies Act. While the separation of the Companies Act into 12 parts imposes some structure on the statute, in reality there are many overlapping provisions and not all the provisions belong neatly in their designated parts of the Act. Many parts of the Companies Act have also fallen into disuse over the years. For example, it is understood that there are very few (if any) companies limited by guarantee under the Act, despite such companies being one of the main types of company that can be formed under the law. In other jurisdictions such as Australia, companies limited by guarantee (which have the same characteristics as under the Companies Act) are commonly used as a corporate entity by charities and not-for-profit organisations, because they generally prohibit distributions to members. It is not clear why the use of companies limited by guarantee has fallen away in Myanmar today, particularly as they are a suitable form of legal entity for the many civil society organisations that have proliferated since the start of Myanmar’s current reforms. Therefore, reforming the Companies Act would require not only an understanding of the black letter law but also a deep

A Principled Approach to Company Law Reform in Myanmar 227 knowledge of its practice in Myanmar today, so that reform matches modern commercial and practical realities of the country. A Robust and Modern Company Law for Myanmar The Companies Act is one of the key pieces of legislation governing the conduct of companies in Myanmar today, and one of the first laws with which the business community must grapple when entering the market. As such, it is an essential tool for the development and regulation of the private sector in Myanmar. At this crucial juncture in its history, reform of the Companies Act would also allow Myanmar to harness international developments in company law to build a commercial law framework that meets the expectations of local and international business alike. There has been much made of the relationship between legal development and economic development. Recent research indicates that there is some causal relationship between economic policies, legal systems and economic development, and that rule-based laws can play an effective role in economic development where economic policies are in place to reduce the state’s role in economic management (Pistor and Wellons 1999: 6). It has also been suggested that policymakers wishing to strengthen the private sector should focus on the quality of laws and regulations that shape businesses (World Bank 2013). In addition, business regulation and institutional and regulatory frameworks are all factors that have been shown to be determinants of foreign direct investment into the jurisdiction (World Bank 2013: 48). For a transitional economy like Myanmar, the important policy implication is that improvements in the legal and regulatory frameworks have the potential to attract much-needed foreign investment for its economic development. Rewriting the Companies Act through a properly designed and implemented law reform programme is therefore an important step in the Myanmar government’s overall reform agenda. For a country undertaking rapid economic liberalisation such as Myanmar, an effective company law framework could be a vital ‘handmaiden’ to support the economic policy goals of the Myanmar government. Lessons from Other Jurisdictions Company law reform is not a recent or remarkable phenomenon. In the last decade or so, many countries have undertaken significant reform in this area, often employing lengthy and complex reform processes. For instance, Australia introduced its Corporations Act 2001 after an extensive programme of reforms to its company law legislation, which was originally based on the UK’s Companies Act 1948. The UK also completed a major overhaul of its companies legislation resulting in the UK Companies Act 2006. Both Hong Kong and Singapore are in the process of enacting new company laws, which were the product of major law reform projects spanning a number of years. Additionally, Malaysia published a draft Company Bill for consultation in 2013, which will replace the Companies Act 1965 (Malaysia). It is important to consider whether the cost and complexity involved in the wholesale rewriting of a jurisdiction’s company law is justified by the results of the reform exercise.

228 Melinda Tun Criticisms of company law reform initiatives are not difficult to find. The Australian Corporations Act 2001, despite being the subject of well-intentioned reforms, is a voluminous and complex piece of legislation that has been labelled ‘an obese monument to complexity and confused thinking’, with reforms to the law having only added substantial complexity to the law (Farrar 1999: 14). Likewise, the new UK Companies Act 2006 has been criticised by various commentators for ‘perpetuating a monstrous pretence, an affront to business and a denial of the realities of the commercial world’1 and ‘fall[ing] way short of its major goals or justifying the huge investments in time and money that was spent on it’ (Reisberg 2010: 370). Important lessons abound in the field of company law reform. Larger reform programmes and confused objectives for reform do not lead to better laws. Law reform without reference to international trends and developments can detract from efficacy of the reforms. Importantly, law reform cannot be seen in isolation from the totality of business and regulatory environment, including its relationship with other laws and administrative and judicial expertise (Reisberg 2010: 370–73). These lessons are instructive not only for company law reform in Myanmar but all law reform initiatives being implemented or contemplated in the country. Law reform without a clear policy rationale or a well-considered reform programme could, in the long run, hinder the development of a coherent and robust legal system in Myanmar. In this regard it is worth paying heed to the reform experiences of other jurisdictions where company law regimes have, to a greater extent, been shaped by forces of globalisation and international business practices.

A PRINCIPLED APPROACH TO LAW REFORM

The task of reforming any area of law is neither a simple nor straightforward exercise. It is a process that requires a clear policy focus, attention to the constraints of the existing legal framework, awareness of international legal and market practices, and balancing the interests of many stakeholder groups. Additional complexity arises in company law reform because company law touches almost every area of business life and should cater to a wide spectrum of users, ranging from small-to-medium enterprises to large companies, the management of those companies and the investing public. As a result, company law reform in jurisdictions such as the UK, Hong Kong and Australia has been a lengthy affair, involving extensive review, public consultation and reform proposals before pen is even put to paper by legislative drafters. Myanmar, however, does not have the luxury of time, nor the depth and breadth of experience and expertise in corporate law to implement a slow and complex programme of company reform. As a priority, it needs a concise and nimble company law that will facilitate legitimate business transactions efficiently, while setting clear standards for corporate management and behaviour. In order to achieve this, it is critical that the Myanmar government adopt a principled approach to law reform and set a clear and realist agenda for implementation of the reform programme. At a minimum, it should articulate clear objectives of the reform based on policy goals, establish clear 1

Sealy, L ‘Sweet & Maxwell’s Company Law Newsletter’ [2006] 18(2), as cited in Reisberg (2010: 335).

A Principled Approach to Company Law Reform in Myanmar 229 parameters for reform by setting sound guiding principles, and consider company law in the wider context of Myanmar’s other ongoing reforms and institutional capacity. Articulating Policy Goals: Aims and Objectives of Reform In the reform frenzy that often occurs in a country in transition like Myanmar, one has to remember that law reform is a means to an end, and not an end in itself. Reforming laws for the sake of reform alone cannot lead to effective laws that complement the policy objectives of the government and serve the public’s interest. Thus, the starting basis for a company law reform programme in Myanmar is to clearly identify the main aims and objectives of the reform and policy issues that must be addressed by law reform. A clearly articulated set of aims and objectives of the law reform would then shape the scope and programme of reform and ultimately ensure that the resulting law meets stated policy goals. It is well recognised that the Myanmar Companies Act is archaic and in many respects does not match the realities of modern business. Reforming a law that, in spite of its shortcomings, has been the legal stalwart for companies and corporate affairs in Myanmar for nearly a century requires a steady focus and a thoughtful approach. First and foremost, ‘law reform has to be identified by users and others and should be on the basis of demonstrated purpose or need’ (Arden 1997). Further, Myanmar legislators should note that an old law is not necessarily a bad law. Any new company law in Myanmar would not be planted in a ‘green field’ but rather a jurisdiction that has, for many generations, been governed by an existing legal framework under the Companies Act. Therefore, a ‘healthy scepticism of and a healthy respect for the existing law’ is required in any reform effort and Myanmar should weigh the perceived benefits of a new law against the cost and disruption to businesses operating within the existing framework (HK Standing Committee on Company Law Reform 2000). The Companies Act has all the mainstays of a modern company law and contains core legal concepts that are similar to, if not the same as, most common law jurisdictions. This solid foundation should not be lightly discarded. Like the heritage buildings of downtown Yangon, the Companies Act should be assessed for structural integrity and soundness, and then ‘restored’ using modern means, so that the end result is a law that preserves the best of its heritage while accommodating a modern and growing Myanmar. To avoid the trap of reform for reform’s sake, Myanmar policymakers and law reformers should first determine what problems they seek to address and what policy objectives they wish to achieve through a rewrite of the Companies Act. These aims and aspirations should be the genesis for a new company law regime that would effectively govern corporate practices in Myanmar for the coming decades. International Experience A survey of the rationale for company law reform efforts in other common law jurisdictions provides useful guidance for Myanmar in setting its own objectives for reform. The UK government’s aims in reforming its company law have been summed up thus: The objectives of the [new Companies] Act were to enhance the shareholder engagement and long-term investment, make it easier to set up and run a company, and reduce the burden of

230 Melinda Tun regulation, especially for smaller business. (UK Department for Business, Innovation and Skills 2013)

In Australia, the most significant reforms to the Australian Corporations Law were implemented through a law reform programme, the objective of which was To promote business and market activity leading to important economic outcomes including increased employment, by enhancing market efficiency and integrity and investor confidence. . . . Corporate regulation will be revamped to provide a clear and consistent framework which reflects the contemporary business environment . . . (Australian Government Treasury 1997)

In Hong Kong, a new Companies Ordinance was drafted with the aims of enhancing corporate governance, implementing an effective and business-friendly regulatory regime, facilitating business by reducing compliance costs for small and medium enterprises and modernising the law (Hong Kong Financial Services and the Treasure Bureau 2009). Similarly, in Singapore the aims of the company law reform programme were to provide a conducive and efficient regulatory framework, promote greater accountability and transparency while keeping compliance costs low, provide regulatory flexibility and clarity, and keep pace with technological advances and international developments (Singapore Steering Committee for the Review of the Companies Act 2011). Finally, Malaysia set about the task of reforming its Companies Act of 1965 with the dual objectives of, first, creating a regulatory framework to facilitate business and, second, promoting accountability and protection of company directors and members, taking into account the interests of other stakeholders and international standards (Malaysia Corporate Law Reform Committee, undated). This survey shows that in broad terms, governments have been trying to make it easier for companies to do business through better regulation to promote investor confidence and focusing on accountability and transparency concerns in the corporate arena. There is also a clear desire to keep abreast of international market standards and technology in corporate law regimes. The policy objectives driving other jurisdictions’ reform efforts can also provide the Myanmar government with some guidance in considering its own reforms. It is not as simple as following the same reform process or adopting the same laws as other jurisdictions. Myanmar policymakers and law reformers must have a clear idea of the policy issues and goals they need to address through the company law reform programme in Myanmar. Framing clear objectives for the company law must be the first step towards crafting a company law that meets the needs of the Myanmar corporate environment today. To this end, U Aung Naing Oo, the Director-General of the Directorate of Investment and Company Administration (DICA), the principal agency administering the Companies Act, has observed that the Myanmar government is ‘aiming to draft a more efficient law that meets international standards and provides [companies] with regulations that are simple and easy to follow’ (Thike Zin 2013). He also noted that the Companies Act has many shortcomings that need to be addressed, such as: The law has a number of clauses that are irrelevant to modern Myanmar business practices, including portions that slow down the company registration process, making it much more complicated for businesses to get started in the country. (Thike Zin 2013)

It is thus evident that company law reform in Myanmar should, at a minimum, have the triple objectives of modernising the Companies Act, simplifying the regulatory frame-

A Principled Approach to Company Law Reform in Myanmar 231 work to make it easier for businesses to incorporate, and aligning the law with international standards. Each of these objectives is clearly driven by the existing challenges facing the business community and the government alike, and should be lauded as key objectives for the reform of the Companies Act. It is worth noting here a number of other policy goals that the Myanmar government could also address in reforming the Companies Act. To make it easier for foreign and local companies to do business in Myanmar, the regulatory and bureaucratic hurdles facing companies in Myanmar must be removed under a new company law regime. Investor confidence must be built through a clear and stable regulatory framework that reduces the risks and uncertainties associated with investing in a transitional economy like Myanmar undergoing rapid regulatory changes. The government should also promote transparent, accountable and ethical business practices to address the cronyism and corruption that have plagued Myanmar’s business sector for many years. This could be done by embedding in the company law regime high standards of corporate governance mechanisms to protect the rights and interests of stakeholders, enhanced disclosure practises, and transparency in business operations. Setting Parameters: Guiding Principles for Reform Having considered the policy goals and objectives of company law reform in Myanmar, it is necessary to set the ‘guiding principles’ for a new company law that would set the parameters for reform and shape the substance of the law. To set these principles, the Myanmar government must clearly identify and articulate the key themes of a new company law in Myanmar. Here too the government can find guidance in the experience of neighbouring common law countries’ law reform programmes. As is considered in detail below, international law reform efforts have benefited from clear statements of key guiding principles on which the company law reform initiatives have been based. These have shaped public debate on company law reform and, where implemented, have served as a mandate for reform on key areas of company law. The guiding principles for company law reform in other common law jurisdictions such as the UK, Hong Kong and Singapore can generally be summarised in five key principles. First is the principle of prioritising the needs of small-to-medium businesses as captured in the well-known ‘think small first’ approach of the UK law reform, which seeks to reduce compliance costs and the regulatory burden on smaller companies. Second is the principle of improved corporate governance through a focus on the duties and responsibilities of directors, shareholder engagement mechanisms and enhanced disclosure practices. Third is to build effective regulatory frameworks through clear, flexible and stable regulatory systems and practices. Fourth is to modernise the law by keeping pace with technological developments and international legal developments. Finally, a key reform principle has been to draft a law that is clear, logical and user friendly and reduces complexity. ‘Think Small First’ The ‘think small first’ principle of company law reform adopted in the UK as a guiding principle of reform involves making company legislation more user-friendly and

232 Melinda Tun accessible for small and private companies in order to minimise administration costs and prevent a disproportionate compliance burden falling on small companies. In the UK and elsewhere, this approach has been promoted on the basis that small-to-medium enterprises have an important role in economic growth and development, and are adversely impacted by high compliance costs, extensive paperwork and prohibitive regulatory burdens (OECD 1999: 7). The key law reforms in the UK giving effect to the ‘think small first’ principle included the simplification of incorporation procedures by reducing the number and complexity of documents required for incorporation. This includes streamlining a company’s constitutional documents; reducing disclosure and financial audit requirements for smaller companies; and providing for electronic communication and more flexible decisionmaking processes (Company Law Review Steering Group 2001). In Australia a ‘Small Business Guide’ that sets out the key rules, including the legal rights and obligations of most small businesses, was incorporated into the Australian corporate legislation as part of the Corporate Law Simplification Program. In Singapore similar reforms have included the streamlining of constitutional documents for companies and a reduction of the audit requirements for small companies. The ‘think small first’ principle is also clearly applicable in Myanmar, particularly in relation to the need for reducing administrative burden and simplifying regulatory processes for companies. As with other common law regimes, the Companies Act distinguishes between a ‘private company’ and a ‘public company’ and carves out certain provisions of the law from applying to private companies. This rudimentary distinction seeks to reduce administrative obligations on private companies. For example, private companies are exempted from the requirement to hold a general meeting of shareholders (called a ‘statutory meeting’) and prepare a statutory report setting out share capital and financing matters within one to six months of a company commencing business (Companies Act, s 77(11)). Entrenching the ‘think small first’ principle would therefore not be an alien concept in Myanmar company law and can be incorporated in the new law. Reform of the Companies Act should also consider incorporating other measures such as simplifying constitutional documents and reducing or abolishing the requirement for companies to have at least two shareholders. On a related note, in 2013 the Myanmar government was preparing a Small and Medium Enterprise Law that reportedly seeks to encourage competitiveness and investment in, and by, small-to-medium enterprises. Company law in Myanmar would need to operate in tandem with this proposed law as part of a coherent regulatory regime in order to ensure that small businesses are not governed by multiple, conflicting regulatory processes. Enhancing Corporate Governance Reviewing corporate governance standards has been a central component of company law reform programmes in most major jurisdictions including the UK, Hong Kong, Singapore and Australia. In particular, directors’ duties is an area of company law that has been subject to much debate and transformation. Traditionally in common law countries, the development of directors’ duties has been the realm of case law, entrusted to judges able to craft more flexible rules to adapt to the changing needs of the business world. This position evolved over time as common law jurisdictions such as Australia

A Principled Approach to Company Law Reform in Myanmar 233 and New Zealand began codifying directors’ duties as part of their company legislation, and the codified duties were then transplanted into other jurisdictions such as Singapore and Malaysia. The question of whether to codify directors’ duties is a recurring debate in company law reform that is beyond the scope of this chapter but it is clear that Myanmar law reformers could learn much from international developments in this area. One of the most recent significant company law reforms in this area was introduced by the UK Companies Act 2006, which included a statutory code on directors’ duties to restate and clarify the common law position on the duties of directors. This development arose out of disenchantment with the common law principles on directors’ duties and a view that the law in this area needed to be modernised to reflect changing business practices (Tomasic 2011). The UK Companies Act 2006 now sets out a fairly detailed and exhaustive list of seven general directors’ duties, including the duty to exercise reasonable care, skill and diligence; the duty to exercise independent judgement; the duty to avoid conflicts of interest; the duty not to accept benefits from third parties; and the duty to declare any interest in a proposed transaction or arrangement. It is also worth noting that other jurisdictions such as Australia, Singapore and Hong Kong have partially codified directors’ duties in their company legislation but have refrained from the more comprehensive approach taken by the UK. This is an area of law that is evolving and would clearly be applicable in the context of company law reform in Myanmar. Reflecting its British common law legal heritage, the Companies Act does not contain an express statement of directors’ duties. Unlike jurisdictions such as Singapore that have not adopted a legislative statement of directors’ duties due to the existence of wellestablished legal principles, Myanmar law and practice in this area is, however, undeveloped and does not reflect international standards of corporate governance. There have been only three reported decisions on directors’ duties in Myanmar, which provide very limited guidance on the scope of the duties under the law (Ma Ma Thant 2011: 16). The lack of legal jurisprudence on directors’ duties in Myanmar creates much uncertainty for directors and shareholders. Ma Ma Thant (2011) argues that a statutory statement of directors’ duties is required in Myanmar and I agree that it should be included as a key part of the company law reform. Articulating a clear statement of director’s duties in the new company legislation law would clearly signal the importance of good corporate governance to the Myanmar business community and help shape better corporate governance standards and practices in the country. Corporate governance standards are not an entirely unfamiliar concept for Myanmar company law. The Companies Act already imposes obligations on directors relating to matters, including disclosure of interests in contracts or arrangements entered into by a company (s 91A); prohibition on directors of public companies voting on any contract or arrangement in which he or she is interested (s 91B); and prohibition on public companies making loans or guaranteeing loans made to a director (s 86D). The Companies Act also sets out penalties for contravention of these duties. These governance standards share similarities with many other common law jurisdictions, although it is not clear if they are adhered to in practice by Myanmar companies. The directors of Myanmar companies deserve clear statutory guidance on the scope of their duties to a company and its stakeholders, particularly where judicial capacity to develop such law remains limited. In the context of broader reforms to the investment climate, strengthening corporate governance standards should be a critical guiding principle for the Myanmar government.

234 Melinda Tun Improving Regulatory and Institutional Frameworks Company law reform in other common law jurisdictions has focused on improvements in regulations and regulatory frameworks governing companies. In Hong Kong, the new Companies Ordinance includes measures to ensure the accuracy of information on the public registers by clarifying the Registrar of Companies’ powers, improving registration requirements for charges, and improving the enforcement regime by increasing investigatory powers of inspectors (Hong Kong Companies Registry 2012). In Malaysia the Corporate Law Reform Committee has as one of its key reform objectives the reduction of duplication and conflicts between the various corporate regulatory bodies; modernisation of the enforcement regime through civil and administrative proceedings for beaches of the Companies Act; and the introduction of a financial reporting framework consistent with international accounting standards and practices (Companies Commission of Malaysia 2012). There are many areas of the Companies Act where regulatory practices and measures will need to be improved or strengthened but three are of particular importance, namely in the areas of financial reporting, corporate insolvency and public registers. First, the Companies Act currently sets out a regime for the preparation of balance sheets, profit and loss statements, as well as income and expenditure statements ‘for companies not trading for profit’, and a requirement to prepare an auditors’ report for companies (ss 131–35). These requirements would need to be assessed, and reformed, by reference to modern accounting standards and international financial reporting practices for companies. The reporting obligations of smaller and private companies should also be assessed with the aim of reducing administrative burdens. Improving financial reporting practices should be a particular area of focus given the commonly perceived lack of transparency in Myanmar companies, and the Myanmar government’s focus on enhancing revenue collection. Second, the insolvency regime for Myanmar companies should be modernised and provide for corporate rescue mechanisms for viable businesses (such as voluntary corporate rearrangements), which are regular features of insolvency regimes in other jurisdictions. The Companies Act presently provides for members’ and creditors’ schemes of arrangement, including for reconstructions and amalgamations under the supervision of the Court (ss 153–153B). These mechanisms are also found in other common law jurisdictions. However, other jurisdictions have seen fit to introduce statutory corporate rescue regimes (with less judicial involvement) to accommodate the modern business environment. Myanmar needs to consider the same. Third, the Companies Act should provide for a regulatory framework to establish an official registry of company information that is easily accessible to the public. While the Companies Act currently sets out a regime for a company registrar where companies are required to lodge certain information, in practice there is very limited public information available in respect of Myanmar companies, including key information on directors and share capital. Maintaining an accurate and publicly accessible companies registry is a core role of corporate regulators around the world. Establishing such a registry in Myanmar is critical to promoting much-needed transparency and public confidence in the Myanmar corporate sector. Company law reform in Myanmar should also focus on institutional frameworks in the country and not only on improvements in regulatory measures. As Ferran (2001: 552) points out, where there are overlaps and interrelations between the institutional frame-

A Principled Approach to Company Law Reform in Myanmar 235 work for company law and securities regulation, designing an optimal overall framework to govern companies and securities matters should be part of any reforms. Presently, the DICA has primary carriage of company registration and administration of the Companies Act. Myanmar is also in the process of creating many new institutions in related areas such as regulation stock exchange for public companies (see Tun Zaw Mra, this volume) and promotion of small and medium enterprises (under the proposed Small and Medium Enterprise Law). The government would need to promote coordinated policy and regulatory actions between these new and old institutions to ensure efficient and effective regulatory framework results for companies and other enterprises in the country. Modernising the Law In reforming a company law that is nearly a century old, a key guiding principle should be to modernise the law and introduce legal concepts and practices that are in line with legal and technological developments, while discarding those that are not. This principle has been adopted in other law reform efforts in the region, including Singapore, where the terms of reference for company law reform expressly included the requirement to keep pace with international legal developments and technological advances (Singapore Steering Committee for the Review of the Companies Act 2011). Modernisation as a core theme of the Myanmar company law reform exercise would provide a mandate for reformers to reconsider age-old legal idiosyncrasies and concepts that could, in the modern business environment, hinder the efficient conduct of businesses. In the area of legal developments, there are a range of core company law principles that would need to be assessed and modernised. For example, there are a number of prescriptions relating to share capital in the Companies Act based on old British company principles that could be modernised in line with international practices. First, companies incorporated in Myanmar with a share capital are required to have a fixed face value ascribed to each share (also called the ‘par value’ of a share), which is based on the authorised share capital of the company and the number of shares into which it is divided (s 32). It has been recognised that there is no essential difference between a share of no par value and one with a par value, as both simply represent a fraction of the equity of a company at a point in time. As noted by the Hong Kong Companies Registry (2012), par value for shares is an ‘antiquated concept’ and can cause practical problems for companies by restricting new capital raisings and complicating accounting regimes. Jurisdictions such as Australia, New Zealand and Singapore have discarded ‘par value’ for shares and I believe there is little use for it in the Myanmar context. Further, the requirement for companies to have an authorised capital (that is, the maximum share capital that may be issued) set out in the company’s constitutional documents unnecessarily complicates capital-raising processes. This requirement has been slowly phased out in other jurisdictions such as the UK, Australia, New Zealand and Singapore, on the basis that it provides limited protection against dilution for shareholders. Myanmar should follow suit. Share warrants are another concept in the Companies Act that no longer serve any useful purpose and should be removed as part of a modernising effort. Warrants are in fact considered to carry money-laundering risk due to the lack of transparency in ownership and transfer (Hong Kong Companies Registry 2012). They have been removed from the company law regimes in Australia and Hong Kong.

236 Melinda Tun A key part of company law modernisation efforts has been to facilitate the use of technology in company administration. In jurisdictions such as Malaysia and Hong Kong, express statutory provisions have been added to permit electronic forms of communication between companies, regulators and stakeholders. Many jurisdictions such as Australia and Singapore also feature the use of electronic technology extensively within their regulatory frameworks, for example by allowing new company registrations to be submitted online and permitting online lodgement of documents and forms with corporate regulators. In drafting a new company law, the Myanmar government should enable businesses to rely on technological developments that facilitate business and reduce transaction costs. Its reported intention to provide for online registration of companies is one of the many measures that could provide more efficient and streamlined practices for companies and regulators alike. Other measures, such as an online electronic companies registry, would reduce transaction and administration costs for businesses and investors. These reforms, supported by the right technological infrastructure, could enable Myanmar regulatory agencies to leapfrog a number of administrative challenges. Clear Legal Drafting The guiding principles for the company law reform process should also include the approaches to be taken in drafting or amending company legislation. Jordan (2009) argues that a well-drafted statute can promote economic efficiency by reducing compliance costs (primarily in the form of legal fees), promoting a culture of compliance, reducing litigation and reliance on the judicial system, facilitating international transactions, and meeting the expectations of international investors. These factors are particularly relevant in the case of Myanmar, where legal and regulatory uncertainty has been one of the commonly cited reasons for multinational corporations taking a cautious approach to doing business in the country. Drafting a new company law that is ‘systematic, structured and principles-based legislation’ like other codes around the world (Jordan 2009: 634) would present Myanmar to the international business community as a progressive transitional economy in the Asian region. Important issues that should be considered in the course of any reform are whether the Companies Act should be rewritten in whole or in part, and what the template should be for redrafting the new law. The Myanmar government has reportedly stated its intention to ‘rewrite’ the law but that is only one aspect of the question, as redrafting can be done in many ways. The Singaporean company law reform process relied on a number of drafting principles that might be instructive for Myanmar: Rewriting the Companies Act does not mean abandoning the old Act completely . . . It is undesirable to depart from wording that is well understood and with which the market is familiar. . . . Rewriting means consolidating sections that can be consolidated, eliminating inconsistencies, clarifying provisions which have proven problematic and deleting those that have outlived their usefulness. A certain amount of reorganisation is also necessary. (Woon 2011: 797)

Woon (2011: 797–99) also outlines other useful drafting principles adopted in the Singapore reform process. These include placing regulatory rules into subsidiary legislation to provide flexibility in modification; only including core company law that applies to all companies in the new Companies Act; deleting obsolete provisions with no policy rationale; retaining provisions that do not create problems in practice but with necessary modifications; considering whether international reforms are appropriate before being adopted;

A Principled Approach to Company Law Reform in Myanmar 237 and providing a flexible and facilitative framework for business rather than impediments to entrepreneurship. The Myanmar government should be alive to these drafting philosophies when reforming the Companies Act as, to date, new laws passed in Myanmar have been broad and general in nature, with the potential to cause uncertainty for users. Adopting clear drafting principles, as was done in Singapore with its company law reform, would allow law reformers and drafters to tackle new laws systematically and coherently. Finally, it is worth emphasising that rewriting the company law does not simply mean the wholesale adoption (or copying) of the laws of another jurisdiction, as legal rules appropriate for a developed economy can sometimes create delay and corruption in developing economies that copy them (Pistor and Wellons 1999, Spamann 2006 as cited in Porta et al 2008: 324). Nor does it mean a mishmash of old laws, amendments and provisions pulled at random from other jurisdictions (Jordan 2009). Rewriting a law or writing a new law as part of a principled approach to law reform involves settling important drafting principles as a priority to guide the drafting, and having a detailed understanding of the current law and how it could be improved or rewritten in a way that addresses the regulatory needs of current day Myanmar.

CONSIDERING THE WIDER CONTEXT OF COMPANY LAW REFORM

A fundamental part of any law reform process must be to consider the wider context within which the law in review operates, including the policy, economic and social environment surrounding the law. In considering the reform of the Companies Act, the Myanmar government should be visionary and look at the environment in which a new company law would operate in practice. The government should consider the broader legal frameworks and laws that apply to Myanmar companies, seek to coordinate the parallel processes of law and economic reforms, and develop administrative and judicial capacity to administer and enforce the law. Examining Existing Laws and Practices In the quest to reform an old statute such as the Companies Act, it should be remembered that it does not exist in a vacuum and that a myriad of other laws apply in conjunction with the Companies Act. Other important laws include the Special Companies Act 1950, the new Foreign Investment Law 2012, the Securities Exchange Law 2013, and the proposed Small and Medium Enterprises Law. In reforming the Companies Act, each of these other statutes must be analysed to determine their scope of operation and the extent of their interaction with the Companies Act. Understanding this web of interconnections is important to ensure that a new company law in Myanmar operates in a complementary, rather than a contradictory or overlapping, manner with the other existing laws, and that no policy or regulatory confusion results from a new company law. Further, as a result of successive regimes enacting or amending laws without regard to existing laws, Myanmar now has a complex web of overlapping and contradicting laws. This includes statutes and case law from the British colonial days and early independence era (including codified laws in the 13 volumes of the Burma Code for the

238 Melinda Tun period until 1956), laws enacted by different governments and administrations since 1962, and the new laws enacted by the current Myanmar government since it took office in 2011, together with the case law decided over that period. In addition, there exist a large number of rules, regulations and executive orders made from time to time by various government ministries and departments. Compounding this complexity is the lack of publicly-available sources of laws, and general lack of access to laws and subsidiary legislation. To reduce some of this complexity, the process of drafting new laws (or reforming old laws) must include a process for examining and assessing all related laws and regulations to ensure that the new law complies with, or, where required, abolishes, old laws that cover the same field or relate to the same area. This requires a methodical and disciplined approach to law reform, which the Myanmar government must prioritise to develop a clear and coherent legal framework for the future. Parallel Processes of Reform The company law reform initiative should also be considered in the context of the broader social and economic reform initiatives being implemented in Myanmar in its transition process. The Myanmar government has publicly stated the objectives of these reforms as being to achieve inclusive growth and the socio-economic development of the country. This ambitious reform agenda is highlighted in the Framework for Economic and Social Reforms released by the Myanmar government in 2012. The framework, which provides a blueprint for the country’s reform process in three to five year terms, covers areas such as public finance and taxation, monetary and banking sectors and private sector development. It also covers areas such as social security, health and education. There is no doubt that implementing all the reforms set out in the framework would inevitably drive other law reform initiatives and new laws. With this in mind, the Myanmar government should consider ways to develop a cohesive and comprehensive legal and regulatory framework that can support and accommodate ongoing reforms for years to come. This is a crucial part of any law reform exercise in a country in transition like Myanmar, as piecemeal law reform could hinder, rather than support, the reforms required in the country. The enactment of the new Foreign Investment Law in 2012, for example, has meant that investors must decide whether to incorporate a company under the Companies Act (without foreign investment approval) or, alternatively, establish an investment with foreign investment approval under the Foreign Investment Law. This has led to a misconception that the Foreign Investment Law ‘trumps’ the Companies Act in respect of investments that require the permission of the Myanmar Investment Commission, suggesting that such investments somehow fall outside the ambit of the Companies Act, irrespective of the type of entity used. This is clearly not the case as the Companies Act governs all companies incorporated in Myanmar regardless of whether they hold foreign investment approval. Any reporting and notification obligations under the Foreign Investment Law are supplementary to, and not in place of, similar obligations under the Companies Act. This highlights the need for the company law reform process to consider the reforms that have come before it and the reforms that will follow, in order to ensure that any new company law regime is flexible enough to operate within new emerging paradigms for doing business in Myanmar.

A Principled Approach to Company Law Reform in Myanmar 239 Recognising Capacity Challenges Other jurisdictions have found that company laws, even after following a principled reform process, are generally lengthy and detailed as they must address a myriad of topics relevant to the life cycles of a company from registration to dissolution. This creates a major challenge for administrators and enforcers of the law. Law reformers must understand the current practices and capacity of regulatory agencies and assess their capacity to deal with extensive changes in the legal and regulatory regime resulting from a new company. In addition, a company law caters to a wide audience of users who will need time and assistance to adjust to any extensive changes in the law and regulatory framework. Drafting a new law is only part of the process, and the real test comes after its passage when the law is implemented, administered and enforced. In the context of Myanmar, a law reform process must be far sighted and consider ways to enable an efficient and effective regulatory structure. Understanding the capacity and limitations of government agencies such as DICA to administer and enforce a newly reformed company law will be an important part of the reform process as it would shape regulatory approaches and frameworks under the law. DICA is a government agency with extensive responsibilities, including as the secretariat to the Myanmar Investment Commission. It is responsible for tasks such as processing documentation from the Myanmar Investment Commission, scrutinising and appraising investment proposals, and monitoring and reporting on investments. It is reportedly looking to add additional staff and its resources are no doubt stretched. As the principal agency administering the Companies Act, company law reform would need to be sensitive to the institutional capacity of the agency to handle revamped regulatory processes arising out of the reforms. Building institutional capacity will take time and one way to allow this to occur would be to implement new company laws and regulations in phases, as was done in the UK. Law reformers must accordingly look for ways to enable the agency to continue using some of its current regulatory processes and know-how under the new company law regime. This is necessary to minimise the administrative disruption and regulatory uncertainty that may ensue if a new company law regime is not implemented in a manner that matches the institutional capacity of the country. A related point is the wide-ranging nature of company law and its capacity to touch every business and enterprise in the country. Unlike the other legislation that applies to a specific category of users (for example the Foreign Investment Law), the Companies Act applies to companies of all sizes, at various stages of a business, and across all sectors. Its users have different needs and priorities, and would all need clear regulatory guidance on the reforms to the law, administrative processes and enforcement mechanisms. In order to minimise business disruption and the burden on government agencies such as DICA, the reform process should also include measures to build public awareness of, and confidence in, the new company law. For example, there should be initiatives to educate the business community on the basics of the company law and regulatory frameworks, with reference to examples from neighbouring countries. There should likewise be collaboration between the Myanmar government and civil society organisations (including business associations) to disseminate information about the new company law regime. Finally, public consultations should be included as part of the company law reform process in order to incorporate the views of a wide spectrum of stakeholders in the law reform process.

240 Melinda Tun

THE LAW REFORM PROCESS

Undertaking a rewrite of the Companies Act requires a well-designed reform process that is inclusive, systematic and resourced with relevant expertise. While the Myanmar government has been prolific in drafting bills and the Union Parliament has been busy passing new laws, there has been little public discussion about the process of law reform or how it can accommodate the interests of various stakeholder groups. Consensus on the law reform process for a key piece of legislation like the Companies Act is critical to ensure public confidence in, and support for, the many law reform initiatives that Myanmar will need to implement as part of its transition. The experience of company law reform processes around the world shows that there is a tried and tested process that the Myanmar government should study in designing its own law reform process for the Companies Act. Designing a Law Reform Process In jurisdictions including the UK, Hong Kong and Singapore, the process of law reform was overseen and led by a core steering group, and supported by various sub-committees and specialist experts. The steering group is commonly comprised of senior appointees from relevant government departments and the private sector, academics and professionals from the legal and accounting industries. It has responsibility for guiding the agenda for the reform process, designing the reform process and advising the government on the reform proposals. The terms of reference for the steering group are set out by the government sanctioning the reform. The steering group then forms and leads subcommittees that focus on specific aspects of the law reform (or specific areas of law subject to reform). The sub-committees comprise representatives from professional and business organisations with specific expertise. In jurisdictions such as Hong Kong, external legal consultants are also appointed to study and advise the steering group and subcommittees on reform proposals for technical and complex areas of the law. The sub-committees (and the external consultants) study their designated area of reform in detail, conduct public consultations and draft recommendations on reforms for the steering group to consider. The public consultations call upon members of the business community, lawyers, accountants, academics and the wider public to submit their views and feedback on reform proposals for specific areas of the law. The steering group and sub-committees prepare proposals for reform based on the objectives and guiding principles for the reform, cross-jurisdictional studies, and feedback from the public consultations. The recommended reform proposals are then submitted to the government. The government then determines the recommendations to be incorporated in a new or amended law which is then tabled in the legislature for approval. Once approved by the parliament, the new law or amendments are implemented by the relevant government agencies. This is a process that can take anything up to 10 years. In the UK the company law review process was announced by the UK government in March 1998 and the final report of the steering group was submitted in July 2001. During the period from 1998 to 2001 there were extensive consultations with stakeholders and numerous reports were pro-

A Principled Approach to Company Law Reform in Myanmar 241 duced by the steering group. Following the submission of the final report to the UK government in July 2001, the UK government produced two white papers that considered the recommendations of the review steering group and the UK Companies Bill was introduced to Parliament in November 2005. The bill was passed one year later in 2006 and then implemented in stages, due to the scale of the changes. The UK Companies Act was fully implemented in 2009. The product of this extended reform process was the longest piece of legislation to have been passed in the history of the UK Parliament (Reisberg 2010: 14). Of course, this is just one example of a company law reform process carried out by a well-developed jurisdiction with extensive resources, expertise and experience, and it may not be necessary or desirable in a jurisdiction like Myanmar. Nevertheless, the Myanmar government should take heed of the time and complex process required to reform a company law, and ensure that at least the core aspects of the reform process are considered in the current context of Myanmar. The Law Reform Process in Myanmar In designing a company law reform process in Myanmar, three key aspects will be important. The first is to form a steering group comprised of individuals with the requisite expertise, experience and interest in company law. This group should be supported and advised by representatives from relevant government departments and external consultants on key areas of company law, practice and policy. This group should be briefed on the current company law framework and its intersection with other areas of law such as securities law and foreign investment law, international legal developments in company law and technical aspects of corporate law. A properly advised and briefed steering group is needed to make informed decisions on the reform process and guide it effectively. The second most important aspect is the need for public consultations and input into the reforms. The company law reform processes in the other jurisdictions examined in this chapter have included public consultations as a key aspect of the law reform process. This is in part a reflection of the important role of consultation in liberal democratic societies and as a fundamental concept for the rule of law (Partridge 1971). The notion of the rule of law draws its strength from the fact that those governed by the law are involved in the development of the law. In a fledgling democracy such as Myanmar, which has yet to elect a representative parliament, citizens’ participation in the law reform process though means such as consultations is a necessary element of entrenching the rule of law (see Lidauer and Saphy, this volume). Further, seeking input from the wider public in crafting a new Myanmar company law is necessary to ensure that the new law reflects the needs and priorities of its users and the environment in which it would be implemented. The third important aspect of company law reform in Myanmar will be to ensure cross-sectoral collaboration between government departments and ministries in the reform process. While most new laws and law reform in Myanmar to date have been driven by individual ministries, a new company law would touch upon the policy areas of key ministries and departments such as the Attorney-General’s office), the Ministry of Finance and the Ministry of Commerce. Including representatives from key ministries in the law reform process will allow the Myanmar government to develop a more

242 Melinda Tun coordinated approach to addressing regulatory and policy issues in developing the private sector. Combining this with public consultations on the law reform process will also open up more channels of communication between the government, private sector and civil society. It is hoped that fostering a collaborative and participatory approach to law reform will not only strengthen the reform process but also promote public confidence in the reform initiatives.

CONCLUSION

Law reform, unlike other types of reforms in Myanmar, is not a matter of changing government policies. It is a process that will benefit much from a disciplined and principled approach, with well-thought-out policy objectives, a set of clear guiding principles for reform and careful consideration of the specific issues and challenges facing Myanmar. It also involves designing a law reform process that is inclusive and emphasises measures to incorporate the voices of the many stakeholders in the reforms. This chapter considered how this approach to law reform could be implemented in the context of the Myanmar Companies Act. Reforming a substantial piece of legislation that would govern most aspects of business life in Myanmar requires a radical shift in the current piecemeal approach to law reform. A law reform programme that respects the law’s history, is sensitive to the country’s present circumstances and institutional challenges, and incorporates a wide range of stakeholder perspectives is required to produce a company law that meets the shifting needs of a transitional country with high hopes for its economic future.

REFERENCES Arden, Dame M (1997) ‘Company Law Reform’ 2 Company Financial and Insolvency Law Review 159. Australian Government Treasury (1997) ‘CLERP – Policy Framework’, http://archive.treasury.gov. au/documents/267/HTML/docshell.asp?URL=index.asp. Companies Commission of Malaysia (2012) ‘About SSM’, www.ssm.com.my/en/about-ssm. Company Law Review Steering Group, UK Department of Trade and Industry (2001) ‘Modern Company Law for a Competitive Economy: Final Report’, http://webarchive.nationalarchives. gov.uk/ and www.dti.gov.uk/cld/final_report/prelims.pdf. Farrar, JH (1999) ‘A Brief Thematic History of Corporate Governance’ 11(3) Bond Law Review 259. Ferran, A (2001) ‘Company Law Reform in the UK’ 5 Singapore Journal of International and Comparative Law 516. Hong Kong Companies Registry (2012) ‘New Companies Ordinance: Overview’, www.cr.gov.hk/ en/companies_ordinance/overview.htm. Hong Kong Financial Services and the Treasure Bureau (2009) ‘Draft Companies Bill First Phase Consultation’, www.gov.hk/en/residents/government/publication/consultation/docs/2010/ CompaniesBill_PhaseI.pdf. HK Standing Committee on Company Law Reform (2000) ‘The Report of the Standing Committee on Company Law Reform on the Recommendations of a Consultancy Report of the Review of the Hong Kong Companies Ordinance’, www.cr.gov.hk/en/standing/docs/Rpt_SCCLR(E). pdf.

A Principled Approach to Company Law Reform in Myanmar 243 Jordan, C (2009) ‘Unlovely and Unloved: Corporate Law Reform’s Progeny’ 33 Melbourne University Law Review 626. Ma Ma Thant (2011) ‘Directors’ Duties and Shareholders’ Remedies in Myanmar: A Comparative Approach to Reform’ (Nagoya University, PhD thesis), http://ir.nul.nagoya-u.ac.jp/jspui/ bitstream/2237/16421/1/k9549.pdf. OECD (1999) Regulatory Reform for Smaller Firms (Paris, OECD), www.oecd.org/cfe/smes/ 2090708.pdf. Partridge, PH (1971) Consent and Consensus (New York, NY, Praeger). Pistor, K and Wellons, PA (1999) The Role of Law and Legal Institutions in Asian Economic Development, 1960–1995 (New York, NY, Oxford University Press). Porta, RL, Lopez-de-Silanes, F and Shleifer, A (2008) ‘The Economic Consequences of Legal Origins’ 46(2) Journal of Economic Literature 285. Reisberg, A (2010) ‘Corporate Law in the UK after Recent Reforms: The Good, the Bad and the Ugly’ 63(1) Current Legal Problems 315. Singapore Steering Committee for the Review of the Companies Act (2011) ‘Report of the Steering Committee for Review of the Companies Act’, www.acra.gov.sg/NR/rdonlyres/41AD76DD58DA-4B12-97B5-6BE4EC42FAF9/0/SCReportComplete28Jul.pdf. Spamann, Holger (2006) ‘Contemporary Legal Transplants: Legal Families and the Diffusion of Corporate Law’ (unpublished). Thike Zin (2013) ‘Ministry Set to Rewrite Colonial Era Law’, Democratic Voice of Burma, 25 July, www.dvb.no/news/ministry-set-to-rewrite-colonial-era-business-law/30486. Tomasic, R (2011) ‘Company Law Modernisation and Corporate Governance in the UK – Some Recent Issues and Debates’ 1 DICTUM-Victoria Law School Journal 43. UK Department for Business, Innovation and Skills (2013) ‘Company and Partnership Law’, www. gov.uk/company-and-partnership-law--2. Woon, Walter (2011) ‘Reforming Company Law in Singapore’ 23 Singapore Academy of Law Journal 795. World Bank (2013) Doing Business 2013. Smarter Regulation for Small and Medium-size Enterprises, 10th edn (Washington, DC, The World Bank), www.doingbusiness.org/~/media/ GIAWB/Doing%20Business/Documents/Annual-Reports/English/DB13-full-report.pdf.

LAWS

Myanmar Companies Act 1914 (The Burma Code, Vol XI) Companies Regulations 1957 Companies (Winding-up) Rules 1940 Foreign Investment Law No 21/2012 (Pyidaungsu Hluttaw Law) Securities Exchange Law No 20/2013 (Pyidaungsu Hluttaw Law) Special Companies Act 1950

United Kingdom Companies Act 1908 Companies Act 2006

244 Melinda Tun India Companies Act 1913

Malaysia Companies Act 1965

Australia Corporations Act 2001

Hong Kong Companies Ordinance

13 The Securities Exchange Law and Prospectus Regulation: Early Sketches of Equity Capital Market Law and Regulation in Myanmar TUN ZAW MRA*

M

YANMAR’S REFORMIST GOVERNMENT has taken steps to modernise and liberalise its financial sector since 2011. This includes the managed float of its currency, the kyat; the easing of restrictions on foreign currency exchange and remittances under the new Foreign Exchange Management Law No 12/2012; and the enactment of the Central Bank of Myanmar Law No 16/2013. The Myanmar government has also announced its plans to establish a stock exchange and, in preparation, enacted the Securities Exchange Law No 20/2013, which provides the legal basis for the creation of stock exchanges and introduces certain regulatory principles and concepts. Study of the law and regulation of equity capital markets presents challenges that are relevant to the study of other areas of Myanmar law, as there are many very old statues that have not been interpreted by the courts recently (if at all). The prospectus regime under the Myanmar Companies Act (1914) is largely untested in Myanmar courts and case law from other common law jurisdictions (English and New Zealand case law) has been relied on to interpret it. Myanmar courts are not bound by foreign judgments and comparative analysis is further limited by the current status of Myanmar’s legal system. New statutes that are yet to be interpreted must also be considered. This chapter analyses the Securities Exchange Law and the provisions governing prospectuses contained in the Companies Act.1 In particular, it examines possible approaches taken by the regulators; prospectus requirements; the liability regime for misstatements

* The author would like to thank Daw Wint Thandar Oo, Ms Karina Peng and U Tin Sein (Polastri Wint & Partners) for their review of, and comments on, an earlier draft of the parts of this chapter dealing with misleading or untrue statements in prospectuses from a Myanmar law perspective. The author also thanks Mr Jeremy Kloiser-Jones (Bagan Capital) and Mr Jeremy Rathjen (Thura Swiss) for their opinions on the current market in Myanmar. The views expressed in this chapter are those of the author. The author is responsible for all errors and omissions. 1 There are several areas of law not covered by this chapter that are important for the relationship between the public company and its shareholders, namely dividends and directors’ duties. Accounting regulations concerning public companies and listed companies are also not covered, and there will no doubt be further legislation concerning the operations of public companies and equity capital markets in Myanmar.

246 Tun Zaw Mra in prospectuses; continuing obligations; the newly created regulator for the securities markets; regulation of market intermediaries; and market abuse offences. The chapter also provides comparisons with capital market regulation in other common law jurisdictions (including the United Kingdom and Singapore) where appropriate. Analysis of Myanmar’s capital market law and comparison with other jurisdictions indicates gaps in the current set-up and provides guidance for future regulatory developments. THE MYANMAR LEGAL SYSTEM IN CONTEXT

In the United Kingdom (UK), companies were originally formed by Royal Charters or special Acts of the UK Parliament until 1844 when the Joint Stock Companies Act, the first modern companies statute in the common law world, allowed the public to form companies by registration (Pettet 2005: 9). Companies formed under this Act had the right to raise funds by offering shares to the public and were precursors to the public companies of today.2 The Act also required public companies to file prospectuses prior to the offer of shares, again now a standard requirement of modern capital markets law and regulation (Pettet 2005: 316). Private companies, which now easily outnumber public companies, only came into existence following the enactment of the Companies Act 1907.3 Section 37 of the Companies Act 1907, which defines private companies, expressly stated that articles of association of a private company must prohibit the offer of its shares to the public. Various versions of the UK Companies Act were exported with the expansion of the British Empire, and the Companies Act came into force in Burma as the ‘Burma Companies Act’ on 1 April 1914. This Act was largely based on the Indian Companies Act 1913, which was, in turn, modelled on the UK Companies (Consolidation) Act 1908 (Phay Than Tin 2007: 17–18). It introduced the legal framework for private and public companies. Several laws introduced during the colonial era remain largely intact today in the area of commerce, including the Companies Act and the Contract Act (1892). The prevailing view in the commercial world is that Myanmar (still) belongs to the common law family (Tun Shin 2013: 8–9).4 This can give a false sense of comfort and there is a danger of not paying due regard to current practice in Myanmar and the influence of its legal history. Government or ministry policies and practice are as important as legislation and case law in Myanmar.5 It is, for example, government policy, not legislation, that prohibits the transfer of shares in a Myanmar company from a Myanmar citizen to a foreigner 6 (Hogan Lovells 2013: 4; Myanmar Thanlwin Legal Services 2011: 26). Difficulty in registering ‘bespoke’ articles of association (Vanderbruggen and Wint Wah Khin Maung 2 The Joint Stock Companies Act 1844 did not provide for what modern companies legislation refers to as a private company. 3 The term ‘private company’ existed prior to the Companies Act 1907 and was used to refer to a company the majority of whose shares are held by previous owners of the business now carried on by the company. The differentiation between public and private companies based on ability to invite the public to subscribe for shares was introduced by the Companies Act 1907: Simonson (1908: 189–91). 4 See also Hogan Lovells (2013) and Myanmar Thanlwin Legal Services (2011: 5). 5 See also Thaicharoen, Win and Anyadike (2013: 19). 6 There now appears to be a relaxation of this prohibition for companies operating under the Myanmar Citizens Investment Law: section 15(d) of the Myanmar Citizens Investment Law No 18/2013.

The Securities Exchange Law and Prospectus Regulation 247 Than 2013) and the inability to request documents pursuant to section 248(5) of the Companies Act (Min Sein 2012) are two other examples where day-to-day practice differs from what is provided for in the relevant legislation. In order to fully understand a legal issue, the relevant policies and practices need to be examined in addition to legislation and case law. As the relevant policies and practices may not be officially announced, difficulties exist in ascertaining the ‘law’, especially when a change in policy or practice is taking place. Around October 2013, there were suggestions that the Myanmar Investment Commission is no longer issuing investment permits7 under the Foreign Investment Law No 21/2012 to services companies, notwithstanding the fact that the Law does not make a distinction between services companies and other types of companies (such as industrial or manufacturing companies) (VDB Loi 2013). This change is said to be driven by ‘a policy shift’ to limit the application of tax and investment incentives (VDB Loi 2013). Successive governments in Myanmar have, over the last 60 years, reduced the role of lawyers, judges and the use of case law. The most dramatic, and perhaps most damaging, changes to Myanmar’s legal system took place during the time the ‘Burmese Way to Socialism’8 was pursued (1962–1988). In 1969 two decisions9 directed that old precedents were not to be relied on for verdicts and that foreign precedents should only be used for general study. This effectively ended the use of the principle of stare decisis (precedent) in Myanmar courts (Cheesman 2011: 817). In 1972 ‘People’s Judges’ (most of whom were Burmese Socialist Programme Party10 members with no legal qualifications) replaced the professional judiciary under the newly established ‘People’s Justice System’ 11 (Myint Zan 2000: 20). One other change relevant to this chapter is that company law was no longer taught in law degree courses during the ‘socialist’ era (Myint Zan, unpublished: 11). Furthermore, the independent legal profession was ‘nationalised’ and lawyers become employees of the state (Huxley 1998). The Tatmadaw (the military) assumed power as the State Law and Order Restoration Council (SLORC) on 18 September 1988 and changes were made to the court system. SLORC Declaration No 2/1988, released on the same date, abolished the highest judicial organ, the Council of People’s Justices together with other ‘Organs of the State’, such as the Pyithu Hluttaw, the legislature; the Council of State; and the Council of Ministers. The Judiciary Law No 2/1988, enacted on 26 September 1988, established the Supreme Court and gave it power to form State/Divisional and Township Courts and to appoint judges. Professional judges were also reinstalled as part of the changes (Myint Zan 2000: 27–28). Likewise, the principle of stare decisis now applies again in Myanmar (Christie 2000: 51). Questions have, however, been posed regarding judicial independence (Myint Zan 2000: 27–28; Myint Zan 2012) and corruption (Cheesman 2012), which create uncertainty about the outcome of cases.

7 Economic activities carried out with permits under the Foreign Investment Law are entitled to certain benefits such as tax holidays and the ability to hold long-term leases. 8 This ideology has been described by Turnell (2009: 223) as ‘an uneasy mix of doctrinaire socialism and extreme nationalism’. 9 Captain Aung Win v Union of Burma (1969) BLR (SCCAC) 292 and U Htun Aung Tha v Union of Burma (1969) BLR (CC) 58, cited in Cheesman 2011: 817. 10 The Burmese Socialist Programme Party was formed on 4 July 1962 and existed as the only political party in Burma during the ‘socialist era’. 11 Some of the professional judges were given roles as court advisers under this system.

248 Tun Zaw Mra The history of equity capital markets for Myanmar companies, or attempts to create them, has been one of false starts. In the 1950s, the government’s plan to attract private sector investment led to the formation of nine joint venture companies between the state and the private sector (Yin Yin Mya 1999: 54). Shares in these companies were traded in an unofficial over-the-counter market until it was closed in 1962 in the wake of the nationalisation of economic enterprises and the adoption of the Burmese Way to Socialism (Yin Yin Mya 1999: 54). There was another false start in the mid-1990s when plans to develop a stock exchange led to Myanmar Economic Bank and Daiwa Institute of Research forming the Myanmar Securities Exchange Centre (MSEC) (Yin Yin Mya 1999: 54). It would be a misnomer to refer to the MSEC as a stock exchange, as it allows over-the-counter trading only and does not have settlement or clearing systems (Rathjen 2013a: 2). At present, Forest Products Joint Venture Corporation and Myanmar Citizens Bank are the only two companies ‘listed’ on the MSEC (Sandar Lwin 2011; Staermose 2013). Over-the-counter trading of shares of public companies does take place, with First Myanmar Investment, First Private Bank, Mandalay Myotha Industrial Development and Myanmar Agribusiness Public Company among the better-known public companies involved (Sandar Lwin 2011; Mullins and Aung Shin 2013: 9). In April 2012 it was announced that the Central Bank of Myanmar, Daiwa Securities and the Tokyo Stock Exchange had signed a memorandum of understanding to develop capital markets in Myanmar (Sandar Lwin 2012). Although a formal stock exchange has not yet been formed, Myanmar public companies have already begun raising funds by inviting the public to subscribe for shares, examples being the Myanmar Telecommunications Network (Public) Co, Ltd, Mandalay Myotha Industrial Development Public Co, Ltd and Myanmar Thilawa SEZ Holdings Public Limited. A few companies have also organised themselves as public companies and indicated their intention to list on the stock exchange. These include the Asia Green Development Bank, Golden Myanmar Airlines Public Company Limited and International Kanbawza Insurance. I will turn now to consider the legal framework in this area in greater detail. LAW AND REGULATION

The Securities Exchange Law came into force on 31 July 2013. Offers of shares to the public by public companies are also governed by the Companies Act; the guidelines in Notification 12/2012 of the Ministry of National Planning and Economic Development (‘MNPED Guidelines’); and an announcement made by the Directorate of Investment and Company Administration (DICA) on 31 October 2012. The Companies Act celebrated its 100th birthday in April 2014 and new concepts and techniques have developed in the intervening 100 years for regulating capital markets. The Securities Exchange Law introduces certain concepts and techniques used in securities regulation into Myanmar for the first time, such as rules on market abuse and regulation of market intermediaries. In addition, it creates a new regulatory body, the Securities Exchange Supervisory Commission (Supervisory Commission), and provides the legal basis for the creation of stock exchanges and the monitoring of over-the-counter markets. The Securities Exchange Law concerns debt as well as equity securities, although the focus of this chapter is on equity securities.

The Securities Exchange Law and Prospectus Regulation 249 A natural consequence of the development of capital markets law into a specialist subject within company law is the migration of prospectus regulation and regulatory authority from the Companies Acts and the company registries to the relevant capital market legislation and regulators. In Singapore, for example, this migration took place with the enactment of the Securities and Futures Act (Tjio 2004: 219). A new Companies Act for Myanmar was still being prepared at the beginning of 2014 but it is not yet known whether the parts dealing with prospectuses will be amended or removed (Aye Thida Kyaw 2014). Given that DICA, which performs the functions of the Registrar under the present Companies Act, has so far been active in regulating offers of shares by a public company, it may continue to play a role alongside the Supervisory Commission. One feature of the capital market regulation in Myanmar is that the Companies Act, the MNPED Guidelines and the majority of provisions in the Securities Exchange Law apply to all public companies, regardless of whether they are listed or not. For prospectus regulation (under both the Companies Act and the Securities Exchange Law) the key trigger is whether a public company has offered its shares to the public. The MNPED Guidelines apply indiscriminately to all public companies and certain requirements, for example, the requirement to publish audited annual accounts in the newspapers, may be too onerous for non-listed public companies that have not made public offers (MNPED Guidelines para d(9)). It would also appear that certain ‘regulated’ activities in respect of shares of all public companies can only be carried out by firms authorised under the Securities Exchange Law.12 As mentioned, over-the-counter trading of public company shares takes place now (Sandar Lwin 2011), and it would appear that this is an area that will be regulated by the Supervisory Commission. MERIT-BASED AND DISCLOSURE-BASED REGULATIONS

Prior to offering shares to the public in Myanmar, the issuing company is required to register a prospectus with the Registrar (under the Companies Act), and obtain approval from the Supervisory Commission (under the Securities Exchange Law). It is not clear whether these two regulatory bodies will take a merit-based or a disclosure-based approach regarding the issuing company and/or the shares on offer. Under a merit-based system, the regulator assesses the merit of the offering and decides whether the share issue should be allowed to proceed (Wellons 1999: 8). Merit-based review may involve reviews based on quantitative guidelines (such as profitability), as well as qualitative reviews. By comparison, the regulator in a disclosure-based system assesses whether the issuing company has disclosed sufficient information in accordance with the disclosure guidelines and allows the investor to decide whether to take part in the share issue (Wellons 1999: 8). In practice, the majority of markets use a mixture of the two systems. For example, the US Federal Securities regime is an example of a disclosure-based regime, while reviews of prospectuses by certain states in the US are merit based (Pettet 2005: 323–25, 366–67). For listing on the London Stock Exchange, merit-based regulation exists by virtue of the eligibility requirements contained in chapter two of the Listing Rules (Davies and Worthington 2012: 900). 12

Regulation of Market Intermediaries, discussed below.

250 Tun Zaw Mra Myanmar is planning to start a formal stock market for the first time and some of the arguments used to advocate merit-based systems may apply to Myanmar. The government and the regulatory authorities may need to provide additional safeguards for Myanmar investors, especially unsophisticated retail investors (Wellons 1999: 14). Lack of professional advisers and institutions that cater for effective financial reporting and enforcement of legal rights may also compel the regulator to conduct merit-based reviews (Wellons 1999: 14). So far, it would appear that DICA is focused on ensuring that the Companies Act disclosure requirements are met by the prospectus submitted for registration and is not actively engaged in looking into the merits of such offers and public companies (Rathjen 2013b). This position may change as more public companies are formed and public offers made. The published MNPED Guidelines do look at the merits of the public companies. A public company needs to carry out an activity that has longterm plans and which can bring profit and benefit to the public (para 2(b)). A public company is required to announce that it intends to distribute its profits to the shareholders (para 2(d)(11). The minimum capital requirement for a public company is set at 500 million kyats (approximately US$500,000; para 4). In relation to the Supervisory Commission, the Securities Exchange Law provides that a public company offering its shares to the public needs to communicate to the Supervisory Commission how it would conduct the public offer, and seek its approval (s 35(a)). It would appear that the Supervisory Commission is given a wide discretion in relation to approval. It is likely that it will take a cautious approach and may look into the merits of the issuing company and its shares. Finally, it is very likely that the stock exchange(s) in Myanmar will set qualifying criteria. Butler (2013) reported that two years’ proven profitability requirement may be set for listing on Myanmar’s first stock exchange. Although the aim of merit-based systems to protect investors is laudable, such systems may run contrary to market principles and present several problems. First, the regulator may favour certain industries over others and this would interfere with the market’s ability to channel capital resources. For example, prior to Malaysia’s move to a disclosure-based system, the Malaysian Securities Commission informed underwriters that certain industries under the government’s New Economic System might receive favourable treatment (Wong 1996: 81). Second, it may discourage investors from taking responsibility for their actions and there may be expectations that the government will bail them out when things go wrong. For example, Japanese investors expected government intervention when the market collapsed in the 1980s (Wellons 1999: 15). Finally, it may take a long time to carry out reviews and, accordingly, the regulators would need more resources. A regulator faced with the problem of ensuring the quality of securities on offer may carry out further enquiries, which lengthens the approval process (Singapore Corporate Finance Committee 1998b: 17) and is potentially more costly for the regulator. The main drawback of merit-based regulation is interference with a market’s ability to allocate capital. The two-year profitability requirement for listing (Butler 2013), if imposed, may restrict capital market access to some companies that are not yet profitable but do have good prospects (Rathjen 2013b). Myanmar’s long-term aim should be to establish a disclosure-based system as practised in the established markets. This would allow the market to allocate capital resources. It will also help foster an investment culture where Myanmar investors take responsibility for their investments. There are examples of this within the region. Singapore and Malaysia moved from merit-based regimes to disclosure regimes in the

The Securities Exchange Law and Prospectus Regulation 251 latter part of the 1990s. The Singapore Corporate Finance Committee (1998b: 18) argued that a disclosure-based philosophy would lead to innovation and greater investor choice, which would, in turn, increase the market’s liquidity. It also noted that a stronger and a more extensive regulatory regime was needed to aid the move (Singapore Corporate Finance Committee 1998b: 18 and 21). In Malaysia, the move took place gradually from 1996 to 2003 (Solaiman 2006: 123). Successfully establishing a disclosure-based system requires more than simply updating capital market laws and regulation. Bangladesh moved from merit-based regulation to disclosure-based regulation in January 1999 but because the market was not ready due to lack of sophisticated investors, intermediaries and a good corporate governance regime, the move failed to achieve its intended target of restoring investor confidence. The market therefore continued to perform poorly (Solaiman 2006: 116, 145). Developments in other areas in Myanmar may aid in creating a suitable environment for a disclosure-based regime. Insurance companies formed as a result of the recent liberalisation of the private insurance market (Marsh 2013) may invest in the equities of local listed companies and become key institutional investors. Allowing foreigners to buy shares in Myanmar companies may also encourage foreign investors and investment funds to hold equity in listed Myanmar companies and add to investor sophistication. Improvements in Myanmar’s business environment would help in the development of financial and professional advisers, who are required for a disclosure-based system to work effectively. Myanmar also plans to be part of the ASEAN capital market integration and a recent development at regional level is the creation of the ASEAN Disclosure Standards Scheme, which aims to harmonise disclosure standards across the region (Ng and Lui 2013). Establishing a disclosure-based system in Myanmar would aid in the process of such integration. PROSPECTUS REQUIREMENTS AND CONTENT

The requirement to publish a prospectus is triggered by public offers and is unconnected to whether such securities are to be listed on a stock exchange. An existing public company that ‘introduces’13 its shares to a stock exchange does not require a prospectus. The rules of the stock exchange may, of course, state that a prospectus is required in such situations; they may even specify that it needs to comply with the requirements of both the Companies Act and the Securities Exchange Law. Under the Companies Act, the term ‘prospectus’ is defined widely and covers any prospectus, notice, circular, advertisement or other invitation14 that offers any shares or debentures of a company to the public for subscription or purchase (s 2(14)). A company that does not issue a prospectus on its formation is required to file with the Registrar a statement in lieu of the prospectus prior to allotment of shares (s 98). If a prospectus is issued without first being filed with the Registrar, a fine15 may be imposed (s 92(5)). 13 An introduction occurs when a company lists on an exchange in order for its existing shares to be publicly traded on the exchange (Stoakes 2008: 27). 14 The term “expressly” excludes any trade advertisement that shows on the face of it that a formal prospectus has been prepared and filed. 15 The company and every person who is knowingly a party to the issue of the prospectus is liable to a fine (not exceeding 50 kyats) for every day from the date of issue until the relevant copy is filed.

252 Tun Zaw Mra Furthermore DICA’s August 2012 statement provides that if it finds evidence that a company has offered shares to the public without registering a prospectus, it will not issue a certificate of commencement of business or certificate of registration. A public company cannot commence business without a certificate of commencement of business. Under the Securities Exchange Law, a public company is required to communicate to the Supervisory Commission how it would conduct its offer to the public and seek approval (s 35(a)). A public company is required to announce a prospectus containing important facts about the company, its memorandum of association and its articles of association (s 35(b)). A breach of these provisions is a criminal offence and carries a penalty of imprisonment for a term not exceeding 12 months or a fine or both (s 66). In terms of prospectus content requirements, Rathjen (2013b) notes that the standards of prospectuses produced by Myanmar companies vary from documents that are approximately six to eight pages in length to much more professional documents. 16 Under the Companies Act, a prospectus needs to contain the signature of directors, the date of publication, and a statement that a copy of the prospectus has been filed for registration (s 92). In particular, a prospectus must contain the following information (s 93). (a) In relation to management, details (including remuneration) of existing and proposed directors, mangers and managing agents, and any provision in the articles or any contract regarding their appointment needs to be included. (b) The number of shares (if any) fixed by the articles of association as the qualification of a director, and any provision in the section as to remuneration of the directors. (c) The minimum subscription on which directors may proceed to allot, and the amount payable on application and allotment of each share. Under section 101, the minimum subscription needs to cover the purchase price of property purchase, preliminary expenses and commission payable, money borrowed for the above purposes and working capital. The allotment can only proceed if 5 per cent of the minimum subscription amount is received in cash. (d) Where the issue is underwritten, it needs to state the name of the underwriter. (e) The dates of, and the parties to, material contracts, and where such material contracts may be inspected (if there is an underwriting agreement, it will be covered by this requirement). (f) Preliminary expenses of the offering and the amount payable as commission for subscribing or procuring subscription needs to be disclosed. (g) If the proceeds are to be used for purchase of property, the name and addresses of the persons need to be disclosed (there is no general requirement to disclose use of proceeds of the fund raising). (h) Voting rights need to be included if there is more than one class of shares and restriction of voting rights. No additional information about rights attaching to shares is required. Under section 93(1A), a prospectus issued by a company that has been carrying on business is required to contain a report by the auditors on the profits of the company and the rate of dividends covering three financial years preceding the issue of the prospectus. 16 Mandalay Myotha Industrial Development’s prospectus falls into the latter category. Available at http://www.mmidproject.com/NewsAndAnnouncements.aspx.

The Securities Exchange Law and Prospectus Regulation 253 The information set out above covers useful information regarding the issuer but jurisdictions with developed capital markets that use disclosure-based regimes for prospectuses (such as the UK and Singapore) require much more extensive disclosure. The International Disclosure Standards for Cross-Border Offerings and Initial Listings by Foreign Issuers (International Organisation of Securities Commissions, or IOSCO, Standards) may be a useful international barometer. Some of the information required under the IOSCO Standards, but not covered by the Companies Act regime, includes risk factors, comprehensive financial information, operating history and related party transactions. Some – and perhaps all – of these areas may be covered by the requirement under the Securities Exchange Law to include important facts concerning the company. This is an important requirement as it can act as a ‘sweep up’ to cover aspects not expressly covered by the Companies Act. The operating history of the company and additional financial information not covered by the Companies Act requirements may be deemed important information that is required in the prospectus under the Securities Exchange Law. Both the UK and Singapore regimes have specific disclosure requirements as well as a general disclosure requirement.17 Where a prospectus contains all the information required by ‘checklists’ but fails to include information required by the general rule, it would still not meet the disclosure requirements. From the perspective of an investor, one weakness is that there is no link between the Securities Exchange Law requirement to disclose important facts and the cause of action provided by section 100 of the Companies Act. For an investor who suffers a loss due to omission of an important fact regarding the issuer to make a claim under section 100 of the Companies Act, the investor must prove that the omission makes a disclosed statement in the relevant prospectus untrue or misleading. Rules under the Securities Exchange Law are yet to be released at the time of writing and such rules may cover prospectus requirements and content. LIABILITY FOR MISLEADING OR UNTRUE STATEMENTS IN PROSPECTUSES

Section 100 of the Companies Act provides a statutory cause of action for subscribers of shares who have relied on misleading or untrue statements in prospectuses. This statutory recourse exists in addition to any possible claims under contract law and/or tort law. Section 100 of the Companies Act remains untested. This is, in part, due to the undeveloped nature of equity capital markets in Myanmar. For the same reason there is a lack of Myanmar case law on contract and tort claims relating to misstatements in prospectuses. The arrangement under the Companies Act that mandates a prospectus and provides a specific statutory route for claims is an example of ‘contract standardisation’ aimed at improving ‘market discipline and private litigation’ (La Porta, Lopez-de-Silanes and Shleifer 2006: 2). Proponents of this model of regulation argue that without such 17 In the UK, in addition to the specific minimum requirements set out in the Prospectus Rules (PR 2.3.1 and PR App 3.1), the prospectus must contain the information necessary to enable investors to make an informed assessment of (i) the assets and liabilities, financial position, profits and losses, and prospects of the issuer of the transferable securities; and (ii) the rights attaching to the transferable securities (s 87A(2), Financial Services and Markets Act 2000). In Singapore, the ‘reasonable investor test’ under section 243 of the Securities and Futures Act (Chapter 289) supplements the detailed checklist.

254 Tun Zaw Mra standardisation, litigation would be governed by contract and tort law and the outcome would be less certain (La Porta, Lopez-de-Silanes and Shleifer 2006: 2). Section 100 of the Companies Act is a descendant of the UK Directors Liability Act 1890.18 Other common law jurisdictions have provisions comparable to section 100 and interpretation of these provisions shows some of the issues presented by the language in section 100. The caveat to such analysis is that foreign judgments are only persuasive for the Myanmar courts. They do not bind them. Under section 100 of the Companies Act the following persons are liable to compensate investors who subscribed for shares relying ‘on the faith of’ the prospectus for loss or damage suffered as a result of any misleading or untrue statement contained in the prospectus or in any report or memorandum appearing on the face thereof, or incorporated by reference to, or issued with, the prospectus: (a) the company’s directors at the time of issue; (b) every person who has authorised the naming of himself, and is named in the prospectus, as a director or agreed to ‘become a director’, either immediately or after an interval of time; (c) every promoter of the company; and (d) every person who has authorised the issue of the prospectus. It appears that the promoters and the directors of the issuing company are the only definite classes of persons whom the subscribers may sue for damages under section 100 of the Companies Act. Under the MNPED Guidelines, directors are required to submit evidence of their wealth and oaths confirming that they are capable of compensating the public should there be losses resulting from investment in the relevant companies (para (d)(6)). A public company is also required to announce such submissions in daily news and media. Under English law, a ‘promoter’ is a person who undertakes to incorporate a company and carry out the required steps for that purpose.19 By comparison, section 100(5) of the Companies Act states that, for the purposes of section 100, the expression ‘promoter’ means a promoter who was a party to the preparation of the prospectus, or the portion thereof containing the misleading or untrue statement, and does not include any person engaged in a professional capacity in relation to the formation of the company. ‘Persons who authorised the issue of the prospectus’ covers directors but it is not clear who else may come under this category. The view in other countries that have statutes with similar language, such as Bangladesh, Malaysia and India, is that this category does not cover auditors, lawyers, underwriters and issue managers (Solaiman 2006: 512–15). The Companies Act is also not clear on whether experts come under the ambit of section 100. In the UK, ‘persons who authorised the contents of the prospectus’ (emphasis added) is also a class of persons liable and this formulation covers experts in relation to 18 The Directors Liability Act 1890 was introduced to provide a statutory cause of action to aid subscribers following the decision of the House of Lords in Derry v Peek (1889) LR 14 App Cas 337, which established that a director who held an honest belief in the truth of a misstatement without having reasonable grounds for doing so was not liable in the tort of deceit. Two pending multi-million pound claims in the UK against Lloyds TSB and Royal Bank of Scotland in relation to misleading statements in the prospectuses are based on section 90 of the Financial Services and Markets Act, which can be historically traced back to the Directors Liability Act of 1890 (Cary and Rickard 2012; Cartwright 2007: 270–71). 19 Twycross v Grant (1877) 2 CPD 469, 541.

The Securities Exchange Law and Prospectus Regulation 255 the parts of the prospectus they are responsible for.20 Under the Companies Act, the company issuing the shares is not liable for misleading or untrue statements in prospectuses (unlike the position in the UK and Singapore).21 Issuers may be subject to claims based in contract law by subscribers (discussed below). It is not yet clear what role intermediaries such as underwriters would play in share offers in Myanmar but the formulation in section 100 of the Companies Act does not appear to cover them. The regime in Singapore expressly names ‘the issue manager’ and ‘the underwriter’ in the classes of persons who are liable to compensate investors for misstatements and omissions.22 The UK’s approach is to look at the role played by persons in the offering and underwriters appear to be covered by one of the following categories: ‘persons who accept responsibility for the prospectus’; ‘persons who authorise its content’; and ‘persons who offer the securities’ (Gerner-Beuerle 2009: 494). The usual practice in the UK is that only the directors and the issuers accept responsibility (GernerBeuerle 2009: 494). In terms of who can sue, section 100 only gives standing to investors who have subscribed for shares. Under English law, only investors who bought the shares from the company and for cash23 come under the term ‘subscribers’ and therefore investors who have acquired the shares on the aftermarket would not be able to rely on section 100 (Gower 1992: 345). If the same interpretation is followed in Myanmar, an investor who subscribed for shares from the company and another investor who bought the shares on the aftermarket on the same day would have different causes of action. Only the former would have recourse under section 100 and the latter would have to rely on tort law remedies. This issue has now been addressed by UK and Singapore legislation. In the UK, section 90 of the Financial Services and Markets Act allows a person who has acquired (or contracted to acquire) securities to claim for misstatements in prospectuses. In Singapore, section 254(1) of the Securities and Futures Act (Chapter 289) provides that classes of persons set out in section 254(3) of the Act are to compensate any person who suffers loss or damage as a result of the false or misleading statement in or omission from the prospectus. One of the elements of a claim under section 100 is that a subscriber needs to prove that he or she bought the shares ‘on the faith of the prospectus’. The requirement to prove that a subscription was made ‘on the faith of the prospectus’ was considered not to be a difficult matter to prove under English law (Cartwright 2007: 273). 24 There is English law authority that if a statement was likely to induce reliance by a subscriber, the inference will be drawn that there is, in fact, reliance.25 The meaning of ‘on the faith of the prospectus’ was recently considered in Houghton v Saunders26 by the New Zealand High Court and the New Zealand Court of Appeal. Section 55G(1) of New Zealand Securities Act 1978 states: 20 Section 90 of the Financial Services and Markets Act and Regulation 6 of the Financial Services and Markets Act 2000 (Official Listing of Securities) Regulations 2001 (SI 2001/2956). 21 For the UK, see fn 18 above. For Singapore see section 254(3)(c) of the Securities and Futures Act (Chapter 289). 22 Section 254(1) and (3) of the Securities and Futures Act (Chapter 289)(of Singapore). 23 Stock and Other Securities Investment Co Ltd v Christopher [1956] 1 All ER 490, 493. 24 The comment is on earlier UK legislation that contained the requirement that subscription was made ‘on the faith of the prospectus’ (eg s 67 Companies Act 1985). 25 Arnison v Smith (1889) 41 Ch D 348, 369. 26 [2008] NZCCLR 13, paras 115 and 120.

256 Tun Zaw Mra The court may, on the application of the FMA [Financial Markets Authority] or a subscriber, order a liable person to pay compensation to all or any of the persons who subscribed for any securities on the faith of an advertisement or registered prospectus that includes an untrue statement, for the loss or damage that the persons have sustained by reason of the untrue statement.

The New Zealand High Court held that actual reliance on the untrue statement may be required, as the statute refers to loss or damaged sustained by reason of the untrue statement.27 The New Zealand Court of Appeal, however, noted (obiter) that ‘on the faith of the prospectus’ ‘may refer to reliance generally on the prospectus rather than specific passages or figures’.28 Developments in favour of investors have also taken place in this area in the UK and Singapore and reliance on the prospectus is no longer required for their respective statutory remedies.29 The Myanmar Companies Act provides for six defences, and three relate to the consent of the defendant (s 100). First, if a person who has consented to become a director withdrew his consent before the issue of the prospectus, and it was issued without his or her authority or consent then he is not liable. Second, if the prospectus was published without his or her knowledge or consent, and, on becoming aware of its issue, he or she immediately gave reasonable public notice that it was issued without his or her knowledge or consent, then he or she is not liable. Third, if a person withdrew his or her consent and gave public notice of the withdrawal and of the reason on becoming aware of any misleading or untrue statement after the issue of the prospectus and before the allotment of shares, then he or she is not liable. The defendant also escapes liability if the misleading or untrue statement fairly represented a statement by an expert and the defendant has reasonable grounds to believe that the relevant expert was competent. The defence that the statement in question was a fair and correct representation of a statement by an official person, or a copy of, or extract from, a public official document can also be raised. For statements other than expert statements and official statements, the defendant is not liable if he or she has reasonable grounds to believe and did, up to the time of allotment of shares, believe that the statement fairly represented the facts or was true. In respect of misstatements in prospectuses, contractual remedies against the issuing company are only available to investors who have contracts with the company, that is, those who bought the shares directly from the company. Remedies for Fraud and Misrepresentation The Contract Act provides for remedies in situations where consent to a contract is obtained by fraud or misrepresentation (s 19). In such situations, the contract is voidable by the aggrieved party. Section 19 expressly states that if an aggrieved party whose consent was caused by misrepresentation or by silence within the meaning of fraud had the means of discovering the truth with ordinary diligence, the contract in question is not voidable. Furthermore, causation is required, as section 19 provides that fraud or a NZCCLR 13 para 115. Houghton v Saunders [2009] NZCA 610 (CA), para 85. Section 90 of the Financial Services and Markets Act and section 253 of the Securities and Futures Act (Chapter 289). 27 28 29

The Securities Exchange Law and Prospectus Regulation 257 misrepresentation must cause the consent of the aggrieved party. It also provides that the aggrieved party may affirm that contract and insist that ‘he shall be put in the position in which he would have been if the representations made had been true’. Section 19 does not make a distinction between remedies for fraud and for misrepresentation. If damages are to be claimed against the company, the application of Houldsworth v City of Glasgow Bank30 under Myanmar law may also need to be considered. In that case, the UK House of Lords held that a subscriber could not obtain damages against the company without first rescinding the contract of allotment. The ratio of this case continues to apply in jurisdictions such as Singapore31 but has been overridden by statute in the UK.32 ‘Fraud’ and ‘misrepresentation’ are defined under the Contract Act in section 17 and section 18 respectively. Dalal (1977: 61–62), commenting on the Indian Contract Act, 33 notes that in relation to fraud, the remedy of recission is only available under the common law for fraudulent misrepresentation. However, the provision on the making of a promise with no intention of performing any other act fitted to deceive and any such act or omission declared to be fraudulent extends the availability of recission to scenarios that do not involve representation of facts (s 17(3)–(5)). It also covers the suggestion of untrue facts by someone who does not believe in its truth, and active concealment of facts (s 17(1) and (2)). There are three possible scenarios of misrepresentation covered in section 18. First, misrepresentation occurs when a person makes a false statement, believing in its truth, even though it is not warranted by the information he knew (s 18(1)). Misrepresentation also takes place where one party owes a duty to another and misleads such party (to whom he owes a duty) to that party’s prejudice, and where a person innocently causes a party to an agreement to make a mistake as to the subject matter of the agreement (s 18(2)–(3)). Theoretically it is possible for a statement in a prospectus to become incorporated into the contract of allotment between the issuing public company and the subscriber, although there is a lack of authority on this particular point under Myanmar law. 34 Tort Law Investors may pursue claims for deceit where fraud is alleged. According to precedent established pre-independence, the court in ALN Narayanan Chettyar v Official Assignee of the High Court of Judicature at Rangoon35 held that the standard of proof in criminal cases would also apply to civil claims for fraud, that is, fraud must be proved beyond reasonable doubt. Beyond this, however, there appears to be a lack of case law on what may constitute fraud/deceit under Myanmar law. Guidance may be drawn from the Contract Act (discussed above) and section 25 of the Myanmar Penal Code (1861), which provides that a person is said to carry out an act ‘fraudulently’ if he or she does that act with intent to defraud, but not otherwise. 30 31 32 33 34 35

(1880) 5 App Cas 317, HL. Halsbury’s Laws of Singapore, Volume 6, Company Law para 70.370. Section 655, Companies Act 2006. The Contract Act and the Indian Contract Act contain similar provisions. This particular point is also not developed under English law. See Morse 2009, para 5.799.1. (1946) RLR 213 PC, 220.

258 Tun Zaw Mra In relation to statements in a prospectus, the traditional view in English law developed in Peek v Gurney36 is that only original subscribers of shares can claim for deceit because the purpose of a prospectus is to attract subscriptions of shares. It was also recognised in Possfund Custodian Trustees Ltd v Diamond,37 a case involving a claim for negligence, that nowadays prospectuses may be intended to be relied on by investors in general, and not just subscribers. There is therefore a possibility that claims for deceit may now be available to all acquirers of shares. It is unclear how a claim under tort law for economic loss suffered due to negligent misstatements would proceed in Myanmar, as jurisprudence developed in Hedley Byrne v Heller38 and subsequent cases has not yet been considered by the Myanmar courts. 39 As explained above, claims under section 100 of the Companies Act are only available to subscribers and contractual remedies are only available to investors who bought the shares from the issuer. In spite of the uncertainty, claims based in tort law may be the only recourse available to investors who have bought shares on the secondary market to recover losses caused by misstatements in prospectuses. Finally, offences under section 49 of the Securities Exchange Law may also apply to prospectuses and offer of shares by public companies (further explained under Market Abuse Offences). STOCK EXCHANGE RULES AND CONTINUING OBLIGATIONS

One important issue typically covered by stock exchange rules and regulations are continuing obligations that aim to ensure that the standards stipulated by the stock exchange are maintained by all companies listed on the exchange. A discussion of continuing obligations is premature, as the requirements have not yet been formulated but obligations to disclose information will be discussed briefly, because without the imposition of such obligations the only disclosure requirements for listed public companies would be those provided for by the Companies Act, which are not extensive.40 Min Sein (2012) has noted the difficulty in accessing files held by the company registry in Myanmar. While the prospectus rules ensure that relevant information regarding the issuer and the shares are released when the shares are first offered to the public, obligations to disclose information to the market attempt to ensure that further important information is released in a timely manner. The Securities Exchange Law is silent on continuing disclosure obligations and it is likely that continuing disclosure obligations for listed companies will be imposed by the relevant stock exchange. Episodic reporting of important events by listed companies is an area that would need to be addressed in Myanmar. Such reporting keeps the investors and the market up to date (aiding in the price formation), and it helps prevent information asymmetries, which may lead to insider trading (Davies and Worthington 2012: 952). Under the Companies Act, public companies are only required to submit annual reports (ss 32 and (1873) LR 6 HL 377. [1996] 2 All ER 774. 38 [1964] AC 465. 39 Donoghue v Stevenson [1932] UKHL 100, which gave birth to the modern law on negligence, was considered in PB Bose v MRN Chettyar Firm and Another (1938) RLR 303. 40 For a brief overview of the Companies Act requirements see Aung Than Tun (2002: 100–11). 36 37

The Securities Exchange Law and Prospectus Regulation 259 134) and more frequent periodic reporting may be desirable for companies listed on the stock exchanges. Under the MNPED Guidelines (para d(9)), public companies are required to submit annual accounts audited by a certified public accountant41 to the annual meeting for approval, to DICA, and to the relevant domestic tax department. They are also required to publish such accounts in the newspapers.42 Lack of publicly available information is an issue as it affects price formation (Davies 2007: 7–8). Rathjen (2013b) noted that some of the existing public companies do understand the need to provide information to investors and to the market. Laws and regulations can help ensure the release of information as well as the quality of information released. At present, other than the general media, there is no outlet for these companies to release information and regulatory news release services should be an area considered by the stock exchange(s). SECURITIES EXCHANGE SUPERVISORY COMMISSION

The Securities Exchange Law provides for the creation of the Supervisory Commission, the new regulator for the securities exchange market in Myanmar. In terms of its composition, the Supervisory Commission is required to have at least five members and two of the members retire by rotation every two years (s 4). The members are appointed by the Union government,43 and the Pyidaungsu Hluttaw (national legislature) does not play a role in the nomination and appointment. By way of comparison, the members of the board of the Central Bank of Myanmar are appointed by the President with the approval of the Pyidaungsu Hluttaw (see Turnell, this volume).44 Members of the Supervisory Commission who are not civil servants are entitled to remuneration (s 4(c)). The Supervisory Commission is responsible for licensing of market intermediaries, stock exchanges and over-the-counter markets. The Supervisory Commission has investigative powers to look into the books, accounts and documents of public companies; Securities Exchange Companies; stock exchanges; (organisers of) over-the-counter markets; their authorised persons, members, employees and representatives (past and present); and lawyers, auditors and representatives of licensees (s 12). It can also call anyone in for questioning and gathering evidence (s 14). It advises the Union government on matters relating to the securities exchanges (s 11(a)). Although the Supervisory Commission can make the necessary notifications, orders and procedures in conjunction with the Ministry of Finance, it only plays a consultative role to the Ministry of Finance in respect of making rules and regulations pursuant to the Securities Exchange Law (s 71). Again, the formulation of these rules and regulations also requires the approval of the Union government. The Supervisory Commission also oversees the operations of stock exchanges and it has power to appoint five of the 10 members of stock exchange boards (s 39(a)). A stock exchange also requires the Supervisory Commission’s consent in order to make or amend its rules (s 43). In accordance with ss 145 and 145(a) of the Companies Act. The author did not find release of audited accounts by public companies in Myanma Alin, the daily staterun local newspaper, while conducting researching for this chapter. 43 Under s 200 of the Constitution, the Union government is made up of the President, the Vice-Presidents, the Ministers and the Attorney-General. 44 Section 9(a) of the Central Bank of Myanmar Law No 16/2013. 41 42

260 Tun Zaw Mra All offences under the Securities Exchange Law are criminal offences.45 The Supervisory Commission does not have the power to prosecute and relies on public prosecutors to bring actions through the general courts. There may be instances where criminal prosecutors and judges lack the expertise to deal with complex capital market litigation. The position taken by IOSCO (2003: 15) is that regulators should have enforcement powers in addition to investigative powers. Further consideration should be given to whether the Supervisory Commission may benefit from having powers to impose administrative sanctions, with oversight by the courts. Having a dedicated enforcement unit may aid the Supervisory Commission in developing expertise to deal with capital market-specific issues. Carvajal and Elliot (2007: 7) have noted that the ‘credibility and effectiveness’ of regulators is reduced by the need of regulators to rely on criminal law authorities for enforcement due to lack of power to impose administrative sanctions. One of the desired outcomes for introducing an administrative sanction regime for market abuse in the UK was to have a better success rate against the perpetrators. 46 The need to show mens rea and satisfy the high evidential requirements were two obstacles in bringing successful prosecutions under criminal law (Davies and Worthington 2012: 1154). Data from 1996 to 2007 suggests that the Financial Services Authority (as it then was) brought roughly the same number of cases relating to insider trading and market manipulation as the Department of Trade and Industry (which previously had the power to prosecute insider trading) but the Financial Services Authority was able to use its powers to impose fines (Armour 2008: 20). The Supervisory Commission also has the capacity to suspend the licence of a market intermediary who has breached the Securities Exchange Law and relevant rules and regulations (s 7(b)). As criminal convictions may be difficult to secure, the Supervisory Commission’s power to issue orders and notifications in conjunction with the Ministry of Finance may prove a useful tool for regulation of the market. REGULATION OF MARKET INTERMEDIARIES

The Securities Exchange Law introduces a regime for licensing market intermediaries in Myanmar’s capital markets. Licences relate to a range of activities, including (i) buying and selling of securities ‘using the licensee’s own account’ (ie proprietary trading); (ii) acting as a broker or an agent in buying and selling of securities; (iii) indirect distribution of securities; (iv) advising on securities investment; (v) acting as a representative of Securities Exchange Companies (as defined below); and (vi) other activities prescribed as securities exchange activities by the Ministry of Finance (s 23). These activities concern the shares of all public companies (whether listed or not). The Supervisory Commission is empowered to prescribe the qualifications for licences concerning each of the above activities (s 24). One significant activity missing from the list of regulated activities is financial promotions. It would appear that third parties who are hired to promote share offerings remain unregulated. 45 Section 69 of the Securities Exchange Law states that all offences are cognisable offences. Under Myanmar law a ‘cognisable offence’ means an offence for which a police office may carry out an arrest without a warrant in accordance with the Myanmar Criminal Procedure Code. 46 See Filby (2003) ‘The Enforcement of Insider Dealing under Financial Services and Markets Act 2000’ 24 Co Law, 334, as referred to in Armour (2008: fn 82).

The Securities Exchange Law and Prospectus Regulation 261 Licences to carry out the activities set out in (i) to (iii) can only be granted to companies that are formed pursuant to the Securities Exchange Law for the purpose of carrying out securities exchange activities (‘Securities Exchange Companies’) (s 2(i)). It would appear that an existing financial institution wishing to carry out such activities needs to establish a Securities Exchange Company. An entity that holds licences for the activities listed (i) to (iii) above can advise on securities investments without the need to hold a separate ‘adviser’ licence. A Securities Exchange Company is also required to have ‘securities exchange’ in its name, and have the prescribed minimum authorised capital and paid-up capital (s 17(a), (c)). A Securities Exchange Company is required to obtain the Supervisory Commission’s approval for reduction of its capital and appointment of its auditor (s 20). It is also required to contribute a certain percentage of its annual net profits to maintain a reserve fund that may only be used for compensation of losses occurring in respect of the conduct of securities exchange activities (s 22). However, the Securities Exchange Law does not explain how affected persons may make claims from such funds. A stock exchange formed under the Securities Exchange Law may act as a depository and provide settlement services by notifying the Supervisory Commission, whereas a Security Exchange Company wishing to carry out such activities is required to make an application to the Supervisory Commission (ss 51–52). Finally, ‘advising on securities investment’ is defined as advising on securities investment for remuneration. It is unclear whether advisers such as lawyers, auditors and accountants need to hold the advisory licences to assist with public company offerings and other capital market transactions. The position in the UK is that most day-to-day advisory activities of solicitors in corporate finance transactions come under exemptions or exclusions from the general prohibition regarding regulated activities under the Financial Services and Markets Act.47 MARKET ABUSE OFFENCES

The Securities Exchange Law introduces four main market abuse offences into Myanmar law: fraud and misleading actions relating to buying and selling of securities to/from the public; dissemination of inaccurate information; insider trading; and market manipulation (s 49). Anyone found guilty may be subject to imprisonment not exceeding a term of ten years, as well as a fine on conviction (ss 54, 60). These offences relate to securities issued by public companies, not just listed companies. It is also an offence to directly or indirectly participate in fraud, deceit, dissemination of inaccurate information and omission of important facts in relation to the offering, buying and selling of securities to the public (s 49(a)). The offence of dissemination of inaccurate information covers two types of behaviour: the release of inaccurate news and facts to induce and influence others to buy and sell securities; and the dissemination of incomplete information in an untimely manner that has a significant effect on the price of securities (s 49(b)). The Securities Exchange Law does not provide guidance on what may be deemed as ‘a significant effect’ on the price of securities. In the UK, the Financial Conduct Authority’s 47 Under s 19 of the Financial Services and Markets Act, a person may not carry out regulated activities unless authorised or exempted. Under s 22, a regulated activity is an activity of a specified kind carried on by way of business and relates to an investment of a specified kind. Exemption to the general prohibition is provided for in s 327. Exclusions are provided for in the FSMA 2000 (Regulated Activities) Order 2001.

262 Tun Zaw Mra Disclosure and Transparency Rules (DTR2.2.4G) provide that there is no set percentage or other figure to determine whether there is a significant effect (on the price of the securities). The test is whether the information would be likely to be used by a reasonable investor as part of the basis of his investment decisions and would therefore be likely to have a significant effect. The use of inside information, or release of inside information, to buy or sell securities for a person’s own account or for others, and advising others to buy and sell securities based on inside information, constitute offences (s 49(c)).48 This type of offence is normally referred to as ‘insider trading’. Insider trading is an issue for capital markets because, if left unregulated, those with the specific inside knowledge can take advantage of those who do not possess the same knowledge (Hudson undated: 91). If this continues in the long run, investors will be less interested to invest in such a market, and that will, in turn, affect the liquidity of the market (Hudson undated: 91). Historically, laws combating insider trading in common law countries focused on persons having fiduciary duties and, where such persons are also directors, directors’ duties. For example, early legislation tackling insider trading in the UK focused on the fiduciary aspects and, in relation to persons who received inside knowledge, the approach was to extend the reach by holding that such recipients knew, or should have known, that there had been a breach of fiduciary duties and were subject to the same duty of trusts as the insider (Pettet 2005: 374–78). The UK now follows the European model, which aims to ensure a fair market following the adoption of the Market Abuse Directive (Pettet 2005: 314). The Securities Exchange Law does not describe what constitutes ‘inside information’, and has left it to secondary legislation and to the courts to develop the concept. This lack of clarity means it is difficult to assess the reach of the insider trading provisions.49 Under the Securities Exchange Law, there are no additional disclosure requirements for Myanmar public companies (listed or unlisted) above and beyond the general company law requirements. This issue needs to be addressed by secondary legislation or the stock exchange rules. If listed companies are not required to release information that may affect the price of securities in a timely manner, this can increase the chances of insider trading occurring. The connection between the continuing disclosure regime and regulation of insider trading is reflected in the fact that, in the UK, the same definition of ‘inside information’ is used for the disclosure regime50 and the Financial Services and Markets Act regime for insider trading (Davies 2007: 14). The Securities Exchange Law also addresses actions and trading carried out to manipulate the market (s 49(d)). It covers two types of behaviours. The first behaviour concerns conspiracy to buy and sell securities after creating false supply and demand. The second behaviour concerns conspiring with others or inducing others to continually buy, sell and use manipulative devices. Applying the above to a ‘pump and dump’ scheme shows how the two parts of section 49(d) operate. The perpetrators of such a scheme would induce investors to buy shares in an existing company, causing artificial inflation of the share price of the company. When the share price of such a company goes up, the perpetrators of the scheme would sell the shares they already hold at the inflated prices. Section 49(c) does not appear to cover attempts to trade using inside information. See sections 118(2), 118B and 118C of the Financial Services and Markets Act, which provide definitions of ‘insider trading’, ‘insider’ and ‘inside information’. 50 Financial Conduct Authority’s Disclosure Rules DTR2.2.3G. 48 49

The Securities Exchange Law and Prospectus Regulation 263 The ‘pumping’, or artificial inflation of demand, would be caught by the second part of section 49(d) and the ‘dumping’, or sale of the shares, would be caught by the first part. Finally, safe-harbour provisions ensure that certain activities that are desirable for investors and/or for the functioning of the market may be carried out without contravening the market abuse offences. The Securities Exchange Law, however, does not provide for any such ‘safe harbours’. In the UK, safe harbours under the Financial Services and Markets Act include price stabilisation and share buy-backs.51 Share issues may result in short-term over-supply of the newly issued shares leading to artificially low prices, and price stabilisation is allowed for a limited period to enable lead managers of a new issue of shares to maintain the price of the securities.52 CONCLUSION

The Securities Exchange Law, the Companies Act and the MNPED Guidelines form the early framework of capital market regulation in Myanmar. This chapter has identified a number of areas that would benefit from further reform, with reference to comparative experiences in the common law world. First, it is unclear at present whether Myanmar plans to adopt a merit-based review or disclosure-based review of prospectuses. Second, in relation to liability for misleading statements in prospectuses, the Securities Exchange Law does not provide for any remedies. Investors would therefore need to rely on the Companies Act, contract and tort claims, and Myanmar law in all of these areas in the capital market context is underdeveloped and largely untested. In this field, developments in the UK and Singapore have put investors in improved positions. Finally, the provisions dealing with insider trading and market abuse need to be developed further. At present there is no guidance on what constitutes ‘inside information’ and this may need immediate attention. It is worth nothing that the enactment of the Financial Services Act 1986 in the UK and the Securities and Futures Act in Singapore were preceded by extensive reviews of the financial services and securities industries.53 Further reforms in Myanmar may also benefit from such thorough review processes and discussions. In the future, Myanmar would also be able to draw from the experience of its stock exchange(s) and Myanmar listed public companies to refine the capital market rules and regulation. Public consultation has been conducted in relation to a number of draft laws in Myanmar since the transition began, and capital markets legislation is certainly one area that may also benefit from such public consultations.54 History provides examples where crises and market crashes 51 Davies and Worthington (2012: 1164) note that it is not impossible to carry out buy-backs without contravening the market abuse regulations. For a general discussion of share buy-backs, see Practical Law Company (2013). 52 Financial Services Authority, The Price Stabilising Rules, CP 40, January 2000, in Davies and Worthington (2012: 1164, fn 187). 53 Gower (1984) in the UK and the Singapore Corporate Finance Committee (1998a; 1998b). 54 At the time of writing, public consultation by the Joint Committee for Review of the Myanmar Constitution in relation to the amendment of the Myanmar Constitution was underway (from 3 October 2013 to 31 December 2013). There was also a public consultation in relation to the Myanmar Telecommunications Law No 31/2013 and an ongoing public consultation (comments to be received by 2 December 2013) in relation to Proposed Rules for the Telecommunications Sector Relating to Licensing, Access and Interconnection, Spectrum, Numbering, and Competition.

264 Tun Zaw Mra prompted reforms in capital market regulation.55 In this chapter I have highlighted a number of areas where Myanmar’s capital market regulation is in need of reform. It is crucial that progress is made in these areas as a result of proactive reform and not merely as a result of reactions to crises and crashes. REFERENCES Armour, J (2008) ‘Enforcement Strategies in UK Corporate Governance: A Roadmap and Empirical Assessment’, ECGI, Law Working Paper No. 106/2008. Aung Than Tun (2002), Corporate Business (Yangon, Success International Publishing House) Aye Thida Kyaw (2014) ‘Companies Act update in the pipeline’ The Myanmar Times, 12 January 2014, http://www.mmtimes.com/index.php/business/9220-companies-act-update-coming-in-maysay-experts.html. Butler, J (2013) ‘Rangoon Firm Pushes for Transparency with Burma’s Secretive Public Companies’ Irrawaddy, www.irrawaddy.org/archives/37478. Cartwright, J (2007) Misrepresentation, Mistake and Non-disclosure (London, Sweet & Maxwell). Carvajal, A and Elliot, J (2007) ‘Strengths and Weakness in Securities Market Regulation’ A Global Analysis IMF Working Paper, WP/07/259. Cary, J and Rickard, J (2012) ‘Section 90 of FSMA: Time for Collective Action’ Practical Law Company, http://uk.practicallaw.com/1-520-2511?q=FSMA+90+collective+action Cheesman, N (2011) ‘How an Authoritarian Regime in Burma Used Special Courts to Defeat Judicial Independence’ 45 Law & Society Review 801. —— (2012) ‘Myanmar Courts and the Sounds Money Makes’ in N Cheesman, M Skidmore and T Wilson (eds), Myanmar’s Transition: Openings, Obstacles and Opportunities (Singapore, Institute of South East Asian Studies). Dalal, JH (1977) Mulla the Indian Contract Act, 10th edn (Bombay, NM Tripathi Private Ltd). Davies, P (2007) ‘Davies Review of Issuer Liability for Misstatements to the Market: A Discussion Paper by Professor Paul Davies QC’, www.treasurers.org/node/3258. Davies, P and Worthington, S (2012) Gower and Davies Principles of Modern Company Law, 9th edn (London, Sweet & Maxwell). Gerner-Beuerle, C (2009) ‘Underwriters, Auditors, and other Usual Suspects: Elements of Third Party Enforcement in US and European Securities Law’ 6 European Company and Financial Law Review 476. Gower, LCB (1984) Review of Investor Protection (London, HMSO Cmnd 9125). —— (1992) Gower’s Principles of Modern Company Law, 5th edn (London, Sweet & Maxwell). Hogan Lovells (2013) Myanmar Legal Developments March 2013, www.hoganlovells.com/ myanmar-legal-developments-03-01-2013. Hudson, A (undated) Introduction to UK Securities Law, www.alastairhudson.com/companylaw/ Company%20Law%20-%20Securities%20Law%20Text.pdf. Huxley, A (1998) ‘The Last Fifty Years of Burmese Law E Maung and Maung Maung’ 9 Law Asia, www.ibiblio.org/obl/docs/The_last_50_years_of_%20Burmese_law.html. International Organisation of Securities Commissions (IOSCO) (2003) Objectives and Principles of Securities Regulation, www.iosco.org/library/pubdocs/pdf/IOSCOPD154.pdf. La Porta, R, Lopez-de-Silanes, F and Shleifer, A (2006) ‘What Works in Securities Law’ LXI(1) The Journal of Finance 1.

55 The backdrop to Singapore’s enactment of the Securities Industry Act 1986 is the collapse of Pan Electric Industries (Tjio 2004: 28–33). The Wall Street crash of 1929 and the economic depression preceded the Securities Act and the Securities Exchange Act in the US (Pettet 2005: 315).

The Securities Exchange Law and Prospectus Regulation 265 Marsh (2013) ‘Market Alert: The Changing Myanmar Insurance Market: Frequently Asked Questions’ usa.marsh.com/NewsInsights/ThoughtLeadership/Articles/ID/31813/Market-AlertThe-Changing-Myanmar-Insurance-Market-Frequently-Asked-Questions.aspx. Min Sein (2012) ‘Company Formation: Not for the Faint Hearted’ 31(619) The Myanmar Times, 19–25 March, www.mmtimes.com/2012/business/619/biz61904.html. Morse, G (coordinating editor) (2009) Palmer’s Company Law, vol 2 (London, Sweet & Maxwell). Mullins, J and Aung Shin (2013) ‘Taking Stock of Public Companies’ Investment: A Myanmar Time Special Report’, September. Myanmar Thanlwin Legal Services (2011) Myanmar Legal and Investment Guide 2011–12 (Phnom Penh, DFDL Mekong Legal and Tax Advisers). Myint Zan (unpublished) ‘Legal Education in Burma since the 1960s’, www.niu.edu/burma/ publications/jbs/vol12/Legal_Education_in_Burma_Unpublished_Version.pdf. —— (2000) ‘Judicial Independence in Burma: No March Backwards towards the Past’ 1 Asian Pacific Law & Policy Journal 1. —— (2012) ‘The “New” Supreme Court and Constitutional Tribunal Marginal Improvement or More of the Same?’ in N Cheesman, M Skidmore and T Wilson (eds), Myanmar’s Transition: Openings, Obstacles and Opportunities (Singapore, Institute of South East Asian Studies). Ng, JK and Lui, B (2013) ‘Harmonised Disclosure Regime in Singapore, Malaysia and Thailand under the ASEAN Disclosure Standards Scheme’, Association of Corporate Counsel, www. lexology.com/library/detail.aspx?g=b7a53c56-ff8d-4855-83d1-dfc9a6a5608a. Pettet, B (2005) Company Law, 2nd edn (Harlow, Pearson Longman). Phay Than Tin (2007) Fundamentals of Company Functions in Myanmar (Yangon, Pyi Zone). Rathjen, J (2013a) ‘Thura Swiss Equity Research Forest Products Joint Venture Corp Research Report’, www.thuraswiss.com/sites/default/files/FPJVC-Research-Report.pdf. —— (2013b) Interview with Jeremy Rathjen, Vice President, Thura Swiss (Yangon, Myanmar, 27 September 2013). Sandar Lwin (2011) ‘Forgotten Securities Market Eying Revival’ The Myanmar Times, 29 August– 4 September, www.mmtimes.com/2011/news/590/news59021.html. —— (2012) ‘Central Bank Adds Further Effort to Securities Exchange Formation’ The Myanmar Times, 21–27 May, www.mmtimes.com/2012/business/627/biz01.html. Simonson, PF (1908) The Companies Acts 1900 and 1907 with Commentaries (First Published 1908, Milton Keynes, Making of the Modern Law 2011). Singapore Corporate Finance Committee (1998a) ‘Consultative Paper on the Securities Market’, www.mas.gov.sg/news-and-publications/consultation-paper/1998/the-securities-market.aspx. —— (1998b) ‘The Securities Market Final Recommendations’, www.mas.gov.sg/news-andpublications/consultation-paper/1998/report-of-corporate-finance-committee-the-securitiesmarket-final-recommendations.aspx. Solaiman, SM (2006) ‘Investor Protection and Civil Liabilities for Defective Prospectuses: Bangladeshi Laws Compared with their Equivalents in India and Malaysia’ 25 Journal of Law and Commerce 509. Staermose, T (2013) ‘How to Invest in Myanmar’ 21 May, www.sovereignman.com/finance/howto-invest-in-myanmar-11891/. Stoakes, C (2008) All You Need to Know about the City (London, Longtail Publishing Limited) Tjio, H (2004) Principles and Practice of Securities Regulations in Singapore (Singapore, Lexis Nexis Butterworths). Turnell, S (2009) Fiery Dragons Banks, Moneylenders and Microfinance in Burma (Copenhagen, Nordic Institute of Asian Studies). Vanderbruggen, E and Wint Wah Khin Maung Than (2013) ‘VDB Loi Analysis: Practical Challenges when Registering the Articles of a Myanmar Joint Venture Company’, www.vdb-loi.com/vdb/ wp-content/uploads/2013/07/VDB-Loi-Analysis_Practical-Challenges-when-Registering-theArticles-of-a-Myanmar-JVCo_28June13.pdf.

266 Tun Zaw Mra VDB Loi (2013) ‘MIC Poised to Stop Permits for Service Companies’, www.vdb-loi.com/vdb/ analysis/client-alert-mic-poised-to-stop-permits-for-service-companies/. Wellons, P (1999) ‘Prototypes of Securities Regulation for Africa: Key Issues’, CAER II Discussion Paper 47. Wong, N (1996) ‘Easing Down the Merit-Disclosure Continuum: A Case Study of Malaysia and Taiwan’ 28 Law & Policy in International Business 49. Yin Yin Mya (1999) ‘Establishment of a Capital Market in Myanmar Perspectives and Problems’ in Mya Than and Mya Thein (eds), Financial Resources for Development in Myanmar: Lessons from Asia (Singapore, Institute of Southeast Asian Studies).

CASE LAW

Myanmar ALN Narayanan Chettyar v Official Assignee of the High Court of Judicature at Rangoon (1946) RLR 213 PC Captain Aung Win v Union of Burma (1969) BLR (SCCAC)(1965–70) 292 PB Bose v MRN Chettyar Firm and another (1938) R.R 303 U Htun Aung Tha v Union of Burma (1969) BLR (CC) 58

England Arnison v Smith (1889) 41 Ch D 348 Donoghue v Stevenson [1932] UKHL 100 Government Stock Investment Co v Christopher [1956] 1 All ER 490 Hedley Byrne v Heller [1964] AC 465 Peek v Gurney (1873) LR 6 HL 377 Possfund Custodian Trustees Ltd v Diamond [1996] 2 All ER 774 Twycross v Grant (1877) 2 CPD 469

New Zealand Houghton v Saunders [2008] NZCCLR 13 Houghton v Saunders [2009] NZCA 610 (CA)

LEGISLATION

Myanmar The Central Bank of Myanmar Law No 16/2013 (Pyidaungsu Hluttaw Law) Companies Act 1914 (The Burma Code, Vol XI) Contract Act 1892 (The Burma Code, Vol IX) Foreign Exchange Management Law No 20/2012 (Pyidaungsu Hluttaw Law) Foreign Investment Law No 21/2012 (Pyidaungsu Hluttaw Law) The Judiciary Law No 2/1988 (State Law and Order Restoration Council Law)

The Securities Exchange Law and Prospectus Regulation 267 The Ministry of National Planning and Economic Development Notification No 12/2012 Myanmar Citizens Investment Law No 18/2013 (Pyidaungsu Hluttaw Law) Penal Code (1861) Securities Exchange Law No 20/2013 (Pyidaungsu Hluttaw Law) The State Law and Order Restoration Council Declaration No 2/1988 Telecommunications Law No 31/2013 (Pyidaungsu Hluttaw Law)

European Community Market Abuse Directive (2003/6/EC)

India The Companies Act 1913

New Zealand The Securities Act 1978

Singapore Securities and Futures Act (Chapter 289)

UK Companies Act 1907 Companies (Consolidation) Act 1908 Companies Act 2006 Directors Liability Act 1890 Financial Conduct Authority Handbook – the Listing Rules, the Prospectus Rules, the Disclosure Rules and Transparency Rules Financial Services Act 1986 Financial Services and Markets Act 2000 Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 Joint Stock Companies Act 1844

14 Police Reform and the ‘Civilianisation’ of Security in Myanmar ANDREW SELTH

F

OR MORE THAN half a century, whenever reference has been made to Myanmar’s security apparatus, it has been the armed forces (the Tatmadaw) that have immediately sprung to mind. This is hardly surprising. The country has boasted the most durable military dictatorship of modern times. After General Ne Win’s coup d’etat in 1962, the armed forces came to dominate almost every aspect of Myanmar’s government, economy and society, directly or indirectly. Through a combination of pseudo-legal measures and brute force the Tatmadaw capitalised on the country’s internal divisions and established an unassailable political position. It became a virtual state within the state. Notwithstanding the promulgation of a new Constitution in 2008, the managed ‘election’ of mixed civilian-military assemblies at both national and regional levels in 2010, and the inauguration of a new reform-minded government in 2011, the armed forces remain the ultimate arbiter of power in Myanmar. After an abortive pro-democracy uprising in 1988, the Tatmadaw was expanded and modernised. It acquired a wide range of arms, mostly from China but also from other suppliers, including Russia, Ukraine and North Korea. Estimates of its size have varied greatly over the years, from fewer than 300,000 to more than 500,000 (Selth 2009). Whatever figure is used, however, it became, and may still be, the second largest armed force in Southeast Asia, after Vietnam. For over 50 years, it has been the primary coercive arm of the central government. Troops have been deployed not only to defend Myanmar’s borders, combat insurgents and oppose narcotics warlords in the countryside, but also to enforce the regime’s edicts, maintain order and, when deemed necessary, crush civil unrest in the urban centres (Selth 2010). The Tatmadaw’s powerful intelligence service has closely monitored the civil population and underpinned continued military rule. There is another institution, however, that was once even more important in Myanmar’s internal affairs and is, arguably, starting to recover its former role. This is the country’s national police, currently organised as the Myanmar Police Force (MPF). Since the 1962 coup, the police have received little publicity. From time to time, there have been references in Myanmar’s state-controlled news media to campaigns against crime in the cities and police involvement in rural anti-narcotics operations. There have even been occasional reports of police corruption and abuses. Rarely, however, has the police force itself excited much attention, either in Myanmar or further afield. There

272 Andrew Selth have been a few passing mentions in the academic literature but descriptions of the police in reference books have tended to be inaccurate or out of date. Similarly, estimates of the MPF’s size have usually failed to keep pace with its growth. From time to time, activist groups and international human rights organisations have highlighted the activities of the force’s paramilitary units and the role of the Special Branch, but even then little attention has been paid to the police force as a national institution. That situation is now changing. There is little chance that the MPF will replace the Tatmadaw as the guarantor of Myanmar’s internal security, at least for the foreseeable future. The police force is, however, gradually being recognised as a large, increasingly powerful and influential institution, which, in a more modern and civilianised form, has the potential to become a key instrument of state control under President Thein Sein and his successors (Selth 2011). Whether or not the MPF achieves this status, and how, will depend in large part on the extent to which it can reinvent itself and win the trust of the population. Its future is thus linked to the success or otherwise of Thein Sein’s ambitious reform programme and the outcome of the current democratisation process, both of which are, in turn, reliant on the willingness of the armed forces to loosen their grip on power. HISTORY OF THE POLICE IN MYANMAR

Robert Taylor has argued that, before 1900, ‘the security of the colonial state rested primarily on the army’ (Taylor 2009: 99). While there were still some 40,000 British and Indian soldiers in Myanmar, that may have been the case (Callahan 2009: 33). From the turn of the century, however, the principal component of the British administration’s coercive apparatus was the police force, divided after 1891 into the civil Burma Police and the paramilitary Burma Military Police (BMP).1 After Mandalay fell in 1885 and Myanmar was eventually ‘pacified’ – formally, at least – few regular army units remained in-country. Law and order was maintained by the police. Indeed, so weak was the local military presence that 3,500 soldiers had to be deployed from India proper to help crush the so-called Saya San rebellion in 1930–32.2 By 1939 the number of regular soldiers in Myanmar had declined to about 5,000 (Tinker 1967: 316). This was less than half the strength of the BMP, which essentially functioned as an occupying army. After the Second World War, it was the reconstituted Burma Police and the new Armed Police who took the lead in restoring law and order, and dealing with threats to internal security from dacoit gangs, communist insurgents and armed ethnic groups.3 As Mary Callahan has described, however, after Myanmar regained its independence in 1948 the fledgling armed forces steadily became stronger, better organised and more influential in the management of the country’s domestic affairs (Callahan 1998: 17–38; 1 The first draft of military policemen, to supplement the army in Upper Burma, was recruited in India in 1887. The police forces of Upper and Lower Burma were amalgamated in 1889, and in 1891 this combined national force was divided into the civil Burma Police and the Burma Military Police. 2 Between 1930 and 1932, there was widespread peasant unrest north of Rangoon, which the British colonialists dubbed the ‘Saya San Rebellion’, after the charismatic figure who was accused of sparking the violence. 3 The BMP and related Frontier Force collapsed in the face of the Japanese invasion in 1942. After the reconquest of Burma in 1945, a renamed Frontier Constabulary was created to deal with security problems around Burma’s borders but the place of the BMP was taken by a new unit called the Armed Police. After independence in 1948 this force became the Union Military Police.

Police Reform and the ‘Civilianisation’ of Security 273 Callahan 2003). The 1962 coup saw the police completely eclipsed as an independent institution. In fact, General Ne Win initially planned to abolish the Burma Police and create a People’s Security Force, which he felt was more befitting the new socialist era. This plan was soon abandoned, but the Union Military Police was absorbed into the army and in 1964 the Burma Police was reformed as the People’s Police Force. By then, responsibility for law and order in Myanmar had effectively passed to the Tatmadaw. In the years that followed, the Ne Win regime transferred more than 150 army officers to the police force, both to increase its capabilities and to bring it more into line with the armed forces (Nakanishi 2013: 160). As a rule, however, the military leadership looked down on the People’s Police Force, which was, in its mind, still associated with the hated ‘British imperialists’ and ‘foreign capitalists’. Despite formulaic expressions of solidarity and support, the force was probably the least prestigious and most under-resourced branch of the country’s ‘Defence Services’, which came to include Myanmar’s Fire Brigade and Red Cross. Nor were the police highly regarded by the Burmese people. Before 1942 the Burma Police was ‘viewed with disdain as a lackey of the colonial power’ (Tin Maung Maung Than 2001: 224). The BMP in particular was seen as the merciless enforcer of a complex and alien system of laws and regulations that was weighted in favour of foreigners. The widespread perception before and during the Second World War of the police as inefficient, corrupt and politically partisan was reinforced during the chaotic post-independence period (Campagnac 2011; Saha 2013). Prime Minister U Nu’s government was accused of using the force against its political opponents. In 1958 the Home Affairs Minister even mobilised Union Military Police units after falling out with the Defence Minister, who commanded the army (Callahan 2003: 186). Following the coup, the People’s Police Force became the willing, albeit junior, partner in an inept and repressive military regime. At that time, the force was widely viewed as ‘particularly corrupt, officious, and exploitative’ (Taylor 2009: 452). This reputation was confirmed in the popular mind by the brutality of the Lon Htein riot police during the 1988 uprising (Lintner 1990: 1–12).4 Under the British, the collection of political and criminal intelligence in Myanmar was largely the preserve of the police forces, notably the Criminal Investigation Department and its Intelligence Branch. Even the Burma Defence Bureau, formed under military command in 1937 to monitor subversion in the new colony, was dominated by police officers (Clipson 2010).5 After independence a Special Branch was formed, but the collection and assessment of political intelligence was also conducted by the Tatmadaw. Following the coup, the Special Branch continued to investigate so-called political crimes – defined as almost any challenge to the military regime – but under the watchful eye of the powerful Military Intelligence Service. The Criminal Investigation Department investigated civil crimes but also strayed into ‘political’ areas, as did the Bureau of Special Investigation, which was popularly known as ‘SB 2’. Until 1983, when there was a comprehensive review of Myanmar’s intelligence apparatus, the Chairman of the coordinating National Intelligence Bureau was always an army officer (Selth 1998: 42). 6

4 Lon Htein is short for Lon-chon-hmu Htein-thein Tat-yin, or ‘Security Preservation Battalions’. After the 1988 uprising, the force’s discredited paramilitary arm was renamed (in English) the ‘Police Battalion Command’. 5 In 1937 the province of British Burma separated from India and became a colony in its own right. 6 From 1983 the position was rotated between the heads of the country’s intelligence agencies.

274 Andrew Selth

POLICE REFORM

Even before President Thein Sein came to office, efforts had been made to expand the police force’s capabilities, improve its performance and reform its culture. This initiative appears to have been driven mainly by former State Peace and Development Council (SPDC) Secretary One, and later Prime Minister, Lieutenant General Khin Nyunt. In 1994 he became chairperson of the Committee for Reform of the People’s Police Force Management System (CRPPFMS), the stated aim of which was to conduct an assessment of the force, ‘promulgate laws, rules and regulations on the People’s Police Force management and administration and make certain reforms in conformity with the changing situation’ (NLM, 14 March 1994). In 1995 the People’s Police Force was renamed the Myanmar Police Force and a Myanmar Police Force Disciplinary Law was promulgated (NLM, 14 March 2012). In 1999 the MPF issued a new Code of Conduct (Manual 1999). Colonial-era manuals spelling out the duties, powers and entitlements of all ranks were also amended and reissued (in Burmese) in 2000 and 2001. At the same time, an attempt was made to introduce aspects of the ‘community-based policing’ model increasingly being adopted overseas. For example, signs and booklets listing the Buddha’s 38 blessings – taken from the Maha Mangala Sutta – were distributed to all police stations as guides to good behaviour.7 In 2001 signs in Burmese and English were erected at police stations around the country, asking ‘May I help you?’ Also, a number of magazines were launched, aimed at boosting police morale and increasing public awareness of police functions (NLM, 8 September 2003). Khin Nyunt eventually fell out of favour with the SPDC and was arrested in 2004 but the reform programme continued for a period under the stewardship of SPDC Secretary Two and later Prime Minister (now President) Lieutenant General Thein Sein. He was assisted by Brigadier General Khin Yi, who served as Chief of Police from 2002 to 2011. Around 2008 a comprehensive 30-year plan for the expansion and modernisation of the MPF was endorsed by the military government. Exact numbers are difficult to determine but in 2011 the strength of the MPF was around 80,000 (Nwe Nwe Aye and Thet Khaing 2005; Personal communication from Rangoon, July 2011). This represented an increase of some 8,000 men and women over the previous decade, and made the force larger and more powerful than it had been since the colonial era (Selth 2002: 309).8 This number included 18 battalions of paramilitary ‘combat’ police, able to respond to serious outbreaks of civil unrest, such as the so-called ‘Saffron Revolution’ that erupted in 2007. The details are unclear, but it appears that a major recruitment programme has been launched to increase the MPF’s size even further. A special effort is being made to boost the number of women in the force, which currently stands at less than 4 per cent of the total.9 Also, large-scale transfers are being

7 The Maha Mangala Sutta, or ‘Discourse on Blessings’, is a famous text accepted by most Buddhists as a comprehensive guide to ethical behaviour, basic to all moral and spiritual progress. 8 INTERPOL’s website stated in 2012 that the MPF’s strength was ‘more than 93,000 men and women’, and some estimates have ranged as high as 110,000 (INTERPOL nd; Eleven, 21 November 2012). These claims are difficult to sustain. 9 Personal communication A from Rangoon, November 2011; see also Si Thu Lwin (2013).

Police Reform and the ‘Civilianisation’ of Security 275 made from the Tatmadaw.10 The goal is a police force of over 100,000, with 34 paramilitary battalions.11 Naypyidaw is also grappling with a range of other challenges, with a view to creating a more modern and professional force that commands greater public respect. The MPF’s headquarters in Yangon is being upgraded, functional departments are being expanded and new ones created, internal coordination has been improved and better technology has been introduced. In several ways, the MPF’s organisational structure now mirrors those of police forces in more developed countries. For example, the Department Against Transnational Crime was created in 2004, after Myanmar became a state member of the UN Convention Against Transnational Organised Crime. There are new Maritime and Civil Aviation departments (Eleven, 9 August 2012; Amyotha Hluttaw 2012). A Tourist Police unit has been formed to cope with the dramatic increase in foreign visitors (Irrawaddy, 26 March 2013).12 There have been reports of a new Cyber Crime Division (Eleven, 27 March 2013). Efforts have also been made to upgrade communications links between MPF headquarters in Naypyidaw, and State- and Region-level MPF units. More policemen now carry personal radios. In addition, officer selection standards have been raised and specialised instruction at all levels has increased. Loyalty to the central government is still valued highly and is reinforced by periodic ‘refresher’ courses designed to help ‘keep patriotism alive’ (Central Institute of Civil Service nd). At the same time, however, doctrine and training programmes have been changed to give greater attention to ‘community-based policing’, which accords a high priority to cooperation with the population. The MPF is now on Facebook and has a comprehensive Myanmar language website. Guidance has been given to MPF officers in sensitive areas like juvenile crime. There is also an increased focus in training courses on personal discipline, in an effort to reduce the level of corruption. In 2011, for example, several corrupt senior police officers were arrested at the instigation of the Chief of Police and the Bureau of Special Investigations (BBC, 27 January 2011; Aye Nai 2011). Steps have been taken to deal with other kinds of abuse, and more reforms have been promised. One characteristic of the MPF that has not changed – indeed, has been strengthened – is the police force’s role as a strategic reserve. The CRPPFMS made it clear from its inception that Myanmar’s police force was ‘a trained armed organisation in addition to the country’s regular armed forces to be able to safeguard the nation in emergency cases’ (Xinhua, 20 June 1998). In this connection, the force’s paramilitary arm has been singled out for special attention. In addition to pursuing its four stated objectives of ‘community peace and tranquility, the rule of law, prevention of drug menace and serving the interests of the people’, the MPF is required to ‘discharge the duty of national security’ (AAIW, 13 October 2005). Even the efforts made to repair the force’s relations with the wider community have been couched in terms of a comprehensive external defence strategy formulated to ‘defeat a superior enemy’ (BBC, 22 February 2004).

10 For example, some 4,000 men have been taken from the Myanmar Navy to help create the new Maritime Police and another 4,000 have been transferred from the Myanmar Air Force to establish the Civil Aviation Police (Interview (A), Naypyidaw, February 2013). 11 Interview (A), Naypyidaw, February 2013. 12 In 2010 Burma hosted about 792,000 tourists. In 2012 there were over a million, with the number expected to rise even higher in 2013 (Greene 2013).

276 Andrew Selth In official statements throughout this period, the MPF was repeatedly referred to as the ‘younger brother’ of the Tatmadaw. This particular formula seems to have been invoked less often since 2011 but, as seen at annual Armed Forces Day parades in Naypyidaw in recent years, the MPF is still publicly embraced as an integral part of Myanmar’s Defence Services (NLM, 28 March 2013).13 WHERE TO FROM HERE?

Reflecting both its colonial antecedents and the influence of the Tatmadaw, the MPF is a strictly hierarchical organisation with a central headquarters in Naypyidaw and subordinate elements in Myanmar’s 14 States and Regions. There are also municipal units in Naypyidaw, Rangoon and Mandalay. At a lower level, there are 1,256 police stations, spread throughout Myanmar’s 73 districts, 330 townships and 16,000 villages. 14 As the MPF grows, becomes more diverse and takes on wider responsibilities, it can be expected that the demands on the force’s senior and middle management will grow considerably. There will also be a greater demand for technical skills and experience in specialist disciplines. Operational control has already been ceded to MPF elements at the State and Region level. Despite this, the government’s firm commitment to Myanmar’s three ‘national causes’ – which can be summarised as sovereignty, unity and stability – mean Naypyidaw has a continued interest in maintaining command of the country’s entire coercive apparatus. In these circumstances, there is little likelihood that the MPF will be further decentralised, let alone broken up into central, regional and local police forces, as has occurred in other countries. The creation of separate State and Region parliaments may give rise to demands from these bodies for increased autonomy and, as a corollary, greater scope to manage the security forces operating within their respective jurisdictions. They are unlikely, however, to be granted more independence than is the case at present. As the MPF expands and assumes a greater role in internal security, including the maintenance of law and order, it will require increased funding. Working and living conditions for police officers need to be improved, salaries need to be increased and operating budgets need to be expanded. Some of the equipment being sought by the MPF will be expensive.15 Given the many demands already being made on the central government, providing these resources will not be easy. Indeed, requests for a greater share of the budget could lead to friction between the armed forces and the police. Yet, if increased allocations to the MPF do not come from the Tatmadaw, they will have to be made at the expense of other sectors, which also need reform and are equally desperate for support. The government is aware that failure to provide the MPF with better facilities and equipment, and increased funding for operational and personnel expenses, will cripple 13 A contingent of MPF personnel has marched at annual Armed Forces Day parades, and in speeches by the Commander-in-Chief the police force is routinely included in references to the wider Defence Services. 14 See Selth (2011); Selth (2012: 59–63); Interview (A), Naypyidaw, February 2013. A number of armed separatist groups, notably the Kachin and the Wa, have formed their own police forces. These are not yet officially recognised but it seems to be envisaged that they will eventually be absorbed into the MPF in some way (Zaw Oo and Win Min 2007: 42). 15 Interviews, Naypyidaw (A) and Kyauktada (B)), February 2013; Khin Myo Thwe (2013).

Police Reform and the ‘Civilianisation’ of Security 277 its reform programme. Also, a failure by Thein Sein to keep his promise of higher salaries and allowances for public servants will make it more difficult to tackle the problems of graft and corruption. This is not just a question of increasing efficiency and promoting ethical behaviour in the force. At present, some of the proceeds of corruption appear to be used to support basic police functions. For example, the sums routinely extorted from the public to conduct investigations are not always to line the pockets of corrupt police. They also seem to help maintain police stations, cover the costs of vital equipment and facilitate operations not being adequately supported in the official budget. Since the formation of the CRPPFMS 20 years ago, the MPF has made some progress, but it still faces serious problems. These may be easier to tackle, now that a new wind is blowing through Naypyidaw and Thein Sein’s reforms are being widely welcomed. Even so, the transition from a highly militarised police force used to wielding unbridled power in support of a repressive regime, to a more professional and civilianised institution observing the rule of law, answerable to an elected government and respected by the people, is not going to be quick or easy (Selth 2013a). Some of the challenges currently facing the MPF can be tackled at the political and institutional level, but others are more complex and will need to be approached at the psychological and societal level. A critical factor will be the MPF’s relationship with the armed forces. POLICE–TATMADAW RELATIONS

As Morris Janowitz once noted, ‘It is a basic assumption of the democratic model of civilian–military relations that civilian supremacy depends upon a sharp organisational separation between internal and external violence forces’ (Janowitz 1964: 38). If the detachment of Indonesia’s national police from the country’s armed forces in 1999 is any guide, however, this is easier said than done. In that case, personal and professional rivalries led to tense relations between the two institutions. There were even gunfights over the distribution of off-budget revenues (Greenlees 2011). The power balance in Myanmar is quite different but the Indonesian example still points to areas where there is the potential for disagreements between the Tatmadaw and MPF over their respective roles and responsibilities, areas of jurisdiction and budgetary allocations. These issues arose before the 1962 military coup and, despite the changed relationship between the two security forces since then, they could do so again. Notwithstanding the advent of a ‘disciplined democracy’ in 2011, and the launch of Thein Sein’s ambitious reform programme, the Tatmadaw retains enormous power and influence, both formally and informally. The 2008 Constitution was written specifically to guarantee the armed forces a privileged position in national affairs, and the government includes several former and serving generals – including the President. At the parliamentary level, a quarter of all national, State and Regional assemblies are filled by serving military officers, and the majority Union Solidarity and Development Party consists largely of former servicemen and their supporters.16 This is in addition to the fact that, despite reports of various problems in recent years, the Tatmadaw still commands 16 The UN has estimated that 89 per cent of the members of Myanmar’s Parliament have some affiliation to the former military regime (IBAHRI 2012: 52–53).

278 Andrew Selth substantial military power that it could exercise in the event that another institution attempted to usurp its dominant position in Myanmar.17 In administrative terms, the police force falls into the Home Affairs Minister’s portfolio. Under the current Constitution, this position is reserved for a senior military officer recommended to the President by the Commander-in-Chief of the Defence Services (s 86). Quite apart from the Tatmadaw’s wish to retain the minister’s ex officio positions in the Cabinet and powerful National Defence and Security Council, the difficulty of amending the Constitution without the Tatmadaw’s support means that the MPF will effectively remain under military control for the foreseeable future (see Williams, this volume). In addition, the Chief of Police (who is also the Deputy Minister for Home Affairs) and many other senior police are former military officers. 18 Should they be forced to pick sides, their primary loyalty, and that of ex-servicemen at more junior levels, would probably be to the Tatmadaw. Tensions between the armed forces and the police are bound to surface from time to time but, given the continuing dominance of the Tatmadaw, a direct and open confrontation between the two is most unlikely. If the MPF is to develop a distinctive civilian identity, however, its relationship with the Tatmadaw will have to change. This will not be easy, as power and authority in Myanmar tend to be conceived as finite and limited. As David Steinberg has pointed out, alternative centres of influence are seen as threatening and likely to lead to instability (Steinberg 2006: 37ff). There is the danger too that a more powerful and independent MPF will arouse jealousies in the armed forces and be seen as a competitor for status and resources. As the MPF grows, some in the Tatmadaw could become concerned that the police force may be seen by civilian reformers as a possible counterweight to the army. If the MPF’s institutional autonomy is to mean anything, the Tatmadaw will need to accept that the force is the national agency with primary responsibility for maintaining law and order. The military leadership will also need to recognise that the MPF is accountable to the public, through their elected representatives in Naypyidaw, not to the armed forces, as has been the case in the past. The 2008 Constitution exempts members of the Tatmadaw from civil law but military personnel must be subject to the same laws and restrictions on their behaviour as other citizens (s 148). Until now, they have acted almost with impunity. Military bases have effectively offered sanctuary from civil authority. Soldiers responsible for human rights abuses have rarely been charged or prosecuted. If the police force is fully to perform its role, and the ‘rule of law’ is to prevail in Myanmar, as advocated by both the government and opposition parties, then this situation cannot be permitted to continue. Also, if Thein Sein wants to civilianise the MPF and make it more independent, as befits a police force in a democracy, he will have to support efforts by the MPF to develop a separate identity and encourage its own esprit de corps. The MPF will need to open its senior ranks to career police officers. This should not only make the force less subject to military influence but would also improve morale by removing a persistent source of complaint from police resentful of soldiers being transferred into positions above them.19 17 For a discussion of the Tatmadaw’s strengths and weaknesses, and the difficulty of discovering them, see Selth (2009: 272–95). 18 It was estimated in early 2013 that about 10 per cent of the MPF were former members of the armed forces (Interview (C), Naypyidaw, February 2013). This figure will increase with further transfers from the Tatmadaw. 19 Personal communication B, Canberra, December 2012.

Police Reform and the ‘Civilianisation’ of Security 279 At the same time, the force will be obliged to take into account the Tatmadaw’s continuing power and authority. The MPF’s leadership will have to be on good terms with its armed forces counterpart while finding a workable division of labour, not just legally but also in terms of practical cooperation and responses to internal security problems. INTERNAL SECURITY

There is no question that the Tatmadaw will remain responsible for all aspects of Myanmar’s external defence. It will also conduct military campaigns against any insurgent groups that openly challenge Naypyidaw’s rule, such as the Kachin Independence Army and Shan State Army-South. The MPF is sometimes directly involved in such operations. This occurs, for example, when insurgents attack rural police stations, or when local police units are required to support broad counter-insurgency strategies involving the civil population. Such duties include setting up road blocks, providing intelligence and supporting village militias. Its function as a strategic reserve aside, however, the force usually has a non-combat role. That said, it seems to be envisaged that the MPF will assume greater internal security responsibilities. The force already dominates the Central Committee for Drug Abuse Control and takes the lead in efforts to combat narcotics trafficking. It has also played a major part in frontier protection, in some places as a member of the ‘Border Control Force’ (NaSaKa).20 With the abolition of the NaSaKa in 2013, the MPF’s role in this area is likely to expand.21 These days, there are more blue uniforms than green uniforms manning rural checkpoints, patrolling city streets, protecting VIPs, providing security for government offices and guarding diplomatic premises.22 Myanmar’s specialist counter-terrorist unit is drawn from the police force. In addition, the MPF usually takes the lead in quelling outbreaks of civil unrest, with the army only being called in to assist the ‘civil’ power when the problem exceeds the police force’s abilities to cope (Constitution 2008, s 148). Naypyidaw is clearly intent on building up the MPF’s paramilitary capabilities, so it can respond to major disturbances with modern anti-riot control measures, rather than having to resort to the blunt instrument of the army. As revealed during the 2007 ‘Saffron Revolution’, there have been some advances in the training of the MPF’s battalions since the 1988 uprising, when ill-equipped and ill-disciplined Lon Htein units were guilty of terrible abuses (Lintner 1990; Selth 2008: 281–97). Some police battalions providing initial responses to outbreaks of civil unrest now wear special protective clothing and carry more appropriate weapons, offering non-lethal options ranging from baton charges and the use of tear gas and water cannon, to the firing of rubber bullets and small calibre shotgun pellets. Modern equipment is still in short supply but a number of new crowd control training programmes are in the pipeline (TJT, 12 April 2013; Selth 2013). Even if the battalions increase their capabilities, they will still face a conundrum. The MPF’s responsibilities for crime prevention, the maintenance of law and order, and 20 Both ‘Border Control Force’ and NaSaKa are commonly used abbreviations. The literal translation of the title (in the Myanmar language) Nezat detha luwinhmu Sitseye Kutkehmu tanachok is ‘Border Area Immigration Scrutinization and Supervision Bureau’. 21 Interview (A), Naypyidaw, February 2013; Hindstrom (2013). 22 This is not to overlook Myanmar’s traffic police, who wear white tunics.

280 Andrew Selth protection of the community place a premium on good relations with the public. Yet these roles are at odds with the military-style training and ethos of the battalions, which are accustomed to exercising violence up to, and including, lethal force. As seen in 2012, when excessive force and military munitions were used to break up a protest at a mine site near Letpadaung, the battalions are not yet imbued with the more restrained approach being held up as a desirable model. In that case, more than 20 Buddhist monks were injured, prompting the government and MPF to make a rare public apology (NLM, 8 December 2012). If the police are to step in before the army, then they cannot act – or be seen to act – like the army. To do so would undermine their civilian status and their standing with the population. In this regard, the closeness of the MPF battalions and the army poses real problems. Given their overlapping responsibilities for internal security, there is inevitably a crossover of roles and identity. In joint operations it will be the ethos and practices of the more powerful partner – usually the army – that sets the tone for the security forces’ behaviour.23 Not being trained or equipped for crowd control, and unused to dealing with protesting civilians, army units tend to resort more quickly to violence, using combat weapons. This leads to a blurring of public perceptions. It is possible that people in Myanmar differentiate between the police and the army during major security crackdowns but this is difficult to confirm. Even if the police wear different uniforms and act in a more restrained manner, they are still likely to be associated in the popular mind with the more extreme measures taken by the armed forces – particularly if their actions are publicised by dissidents, as occurred in 2007. It goes without saying that, in performing these duties, the MPF must act – and be seen to act – impartially in restoring law and order, and upholding the law. Yet, this has rarely been the case. Not only has it consistently acted as an arm of the government, but it has also appeared to side with sectoral interests. During the civil unrest in Rakhine (Arakan) State in mid-2012, for example, MPF officers were clearly sympathetic to local Buddhists and some reportedly joined in attacks against Rohingya Muslims (Human Rights Watch 2012). The action taken at Letpadaung in 2012 was seen by many as another example of the police force backing wealthy government ‘cronies’ and their Chinese business partners (Wade 2012). After a series of riots in central Myanmar in 2013, the MPF was accused of allowing Buddhist mobs to attack Muslims and destroy their property (VOA, 1 April 2013). Such behaviour not only damages the force’s reputation but undermines the government’s rhetoric about human rights and the rule of law. INVESTIGATION AND INTELLIGENCE

Another area in which the responsibilities of the police and armed forces overlap is that of intelligence gathering and assessment. In the new Myanmar, it might be expected that responsibility for the investigation of political crimes – those which relate primarily to domestic, and certain aspects of external, security – would fall to the MPF, or to a dedicated civilian agency, as occurs in most democratic countries. In Myanmar at present, however, such responsibilities seem to be shared between the police and the armed 23 That said, during the sectarian violence in Rakhine State in 2012, there were occasions when the army protected Muslim Rohingya communities from Buddhist mobs which, it appears, included MPF officers (Human Rights Watch 2012: 4–5).

Police Reform and the ‘Civilianisation’ of Security 281 forces. As Thein Sein’s wider reform programme unfolds and is implemented, this arrangement will become increasingly problematic. Since 2011 the Special Branch has been given full responsibility for the collection and assessment of political intelligence. Formally, the Directorate of Military Affairs Security – the latest incarnation of the Myanmar Intelligence Service – only considers defencerelated intelligence.24 The Tatmadaw’s self-appointed guardianship role in Myanmar, however, and the enormous power wielded by its military intelligence agencies in the past, mean it is unlikely that the armed forces would give up an independent capacity to monitor domestic developments. Not only do they distrust the civilian agencies but the Tatmadaw has always preferred to rely on its own resources when it comes to ‘national security’ – a term with a very wide meaning in Myanmar. This will doubtless remain the case while the armed forces hierarchy perceives continuing threats to the country from political activists, armed ethnic groups and narcotics warlords. Such a duplication of functions and responsibilities is, however, likely to exacerbate jurisdictional disputes and arouse jealousies over the allocation of status and resources. It also risks perpetuating problems like poor coordination and the potential loss of valuable intelligence due to gaps in collection and assessment. Whether or not there is a restructuring of Myanmar’s national intelligence apparatus, an argument could still be mounted for a rationalisation and redistribution of its duties. This would not only increase the levels of cooperation between agencies and better exploit their limited resources, but would also provide a clearer delineation of their responsibilities, in particular the separation of military and civilian functions. This would, in turn, aid the future oversight of intelligence operations in Myanmar by an elected civilian government. There are two other areas where the MPF will face challenges: professional culture and community relations. Both will pose major problems and no ready solutions are in sight. POLICE CULTURE AND SOCIALISATION

For the current police reform programme to have a significant impact, the MPF will need to undergo a profound change in its professional culture. There are a number of elements to this issue, covering the force’s view of its place in the ‘new’ Myanmar; its attitude to both civil and military power; its understanding of conventional police roles and responsibilities; and its perceptions of the civil population. Reflecting the government’s own ‘top down’ approach to reform, MPF HQ has already issued a number of directives on such matters and implemented a number of practical measures designed to encourage the development of a different mindset in the force. These measures will only go so far in achieving the desired end, however. Real and lasting cultural change will require a tectonic shift of consciousness at psychological and societal levels. As Nick Cheesman has pointed out, from the colonial period through to the advent of the Thein Sein government, policing in Myanmar has been conceived as a regime service rather than a public service (Cheesman 2009). This has encouraged an authoritarian and hierarchical approach to law enforcement. The adoption of a new community policing model will demand a more flexible structure in which individual officers and members of 24

Interview (C), Naypyidaw, February 2013.

282 Andrew Selth civil society can identify problems and find mutually beneficial solutions. Emphasis will have to be given to taking the initiative, rather than waiting for orders from higher up the command chain. Police officers will need to be encouraged to question the effectiveness of ingrained practices and explore new ways of doing things. They will also be urged to become familiar with their local neighbourhoods and listen to their voices (Community Policing 2007). While laudable, many of these ideas run counter to generations of police training and socialisation. Arguably, some challenge aspects of traditional Myanmar culture, in which respect for personal status and official rank, and submission to authority, have important places. In other Southeast Asian police forces that have embraced community policing models, the adoption of such an approach has encountered a range of problems. Old habits, fear of failure and loyalty to one’s superiors have invariably trumped personal initiative. Also, some proposed changes have been resisted by senior officers, who have seen them as undermining their own positions and leading not only to a breakdown in internal discipline, but also to an unacceptable loss of control over police operations and behaviour. Attempts to introduce such progressive ideas into the MPF are likely to encounter at least comparable levels of resistance. It may be possible, however, to inculcate more of a service culture through education. New programmes at depots and training centres can increase levels of awareness about policing methods in democratic societies. Human rights can be given a higher priority in police school curricula. Special courses can raise leadership skills and encourage a more tolerant approach to the public’s participation in political processes. Also, imaginative teaching methods can create a more productive learning atmosphere, in contrast to the rigid learning styles found in most military-style police institutions. Several foreign governments are currently investigating ways to assist the MPF in these areas (Selth 2013b). Provided that such lessons are taught in a way that is relevant to the local political, social and cultural context, this approach may complement other initiatives by helping to change the force from below. Even so, it may take a generation before there are appreciable results, in part because of the profound lack of trust between the police and the people. COMMUNITY RELATIONS

Myanmar’s police forces have never enjoyed the confidence of the civil population. Throughout modern history, policemen – and, to a lesser extent, women – have been seen as the willing servants of repressive and self-serving regimes that have cared little for the welfare and interests of the average citizen. As a result, the community’s attitude has invariably been one of fear and distrust. There have been exceptions of course, but the common image of the police has been of remote and poorly educated authority figures with low personal and professional standards.25 Broader concerns relate to the militaristic character of the force; its low level of institutional independence; its perceived ineffectiveness; and its collusion with a corrupt and inefficient justice system (AHRC 2009). In these circumstances, it is little wonder that the overwhelming public response to the MPF’s attempts at reform over the past 20 years has been one of scepticism, if not disbelief. 25

See Cheesman (2012); Interviews, Rangoon (D) and Mandalay (E), February 2013.

Police Reform and the ‘Civilianisation’ of Security 283 A key factor contributing to negative views of the MPF is corruption. The force is not alone in facing this problem, which, in the view of some observers, is one of the greatest challenges facing Myanmar (Thawnghmung 2011: 9; Hpyo Wait Ha 2012). By its very nature, the MPF is expected to uphold the highest ethical standards, yet it is reputed that most illegal businesses in the population centres enjoy some degree of police protection (BBC, 7 October 2009). People who have been arrested have been offered their release in return for payment of money or, in certain cases, sexual favours.26 Also, given their position in Myanmar society and their control over most people’s daily lives, police officers have wide scope to engage in intimidation and extortion. Some reportedly seek positions that permit them to solicit bribes, commonly referred to as ‘tea money’. The ubiquity of such practices suggests that the MPF sees itself as above the laws it is charged to uphold. Another target for community feeling is the MPF’s ‘riot police’, for the battalions have made little distinction between crowd control and combat. During the 1988 uprising, for example, the Lon Htein was encouraged to see students and other demonstrators as the ‘enemy’, traitors threatening the survival of the Union. In 2007 the regime portrayed the demonstrating Buddhist clergy as ‘bogus monks’, not deserving of the respect usually accorded to the revered sangha in Myanmar. In such circumstances, it is not surprising that human rights abuses occurred. At present, the battalions constitute only a small proportion of the MPF’s manpower but there are widespread fears that the steady growth in the number of paramilitary units is a device to strengthen the government’s coercive apparatus by stealth. These fears are likely to grow as the MPF creates 16 more battalions, mainly through transfers from the army. Due to persistent problems of poor leadership, lax discipline, low educational levels and an abiding sense of privilege derived from the force’s position under successive military regimes, human rights abuses by police officers have been common. Major incidents like the action against protesters at Letpadaung do not occur often but, when they do, they strengthen popular perceptions of the police as thugs unrestrained by either the law or standards of common decency. In an attempt to recover its reputation from that incident, the government appointed a commission of enquiry led by respected opposition leader Aung San Suu Kyi, who is now a Member of the national Parliament. However, the final report was not as critical of the MPF as many expected, confirming doubts about its ability and willingness to embrace significant reform (Letpadaung Report 2013). Such attitudes will take a long time to overcome. Some corrupt practices have become institutionalised, such as the expectation that police station commanders will pay their superiors to remain in comfortable or lucrative postings. There has been some progress but, to date, modern theories of community policing seem to have had little impact on the MPF’s behaviour. Attempts to implement such doctrines may have been successful in isolated cases but they will continue to founder on the lack of trust between police and public. Codes of conduct, new uniforms and welcome signs outside police stations mean little if the officers inside are known to molest and beat up prisoners and extort money to investigate a complaint, or if they can be bought off by a wealthy or powerful defendant before or after a case goes to court (Myo Zaw Linn 2013). All these problems have reinforced widespread public cynicism in Myanmar, a deep suspicion of the police force and resentment at its corruption and heavy-handedness. As 26

See Kyaw Min San (2012); Interview (F), Canberra, December 2012.

284 Andrew Selth Errol Mendes has noted, this situation has wide ramifications. It encourages a lack of respect for the societal institutions that promote the rule of law and the proper functioning of the criminal justice system itself (Mendes 1999: 17). OUTLOOK ON POLICE REFORM

Given the optimism that has followed Thein Sein’s elevation to the presidency in 2011, and the subsequent relaxation of controls on Burmese society, it is worth noting that in every country where major reform of the security sector has been attempted, it has taken a long time. Inevitably, there will be setbacks and some problems will be difficult to resolve. A few observers have suggested, for example, that the excessive use of force by the MPF at Letpadaung means that Thein Sein’s reform process – and thus the reform of the MPF – is stalling (Ponnudurai 2010). Certainly, the incident demonstrated that old ways of thinking in Myanmar’s security forces die hard. Yet, it can be argued that the public apology and parliamentary enquiry that followed indicate that the government is aware of the need for change and is trying to be more responsive to public concerns. It also wanted to demonstrate that the MPF was being held accountable for its actions, although subsequent events have made this appear a rather hollow aim. The transformation of the MPF, however, will ultimately depend on a range of factors that are out of the force’s direct control. These relate in large part to developments in Naypyidaw; the outcome of Thein Sein’s wide-ranging programme of reforms; and, in particular, the rather hesitant steps being taken towards a more democratic society. Ultimately, the police force will reflect the government it serves and the political system in which it operates. As David Bayley has written, for all the talk of its independence, ‘police forces are the creatures of politics’ (Bayley 1971: 91–112). The new MPF will reflect the transition taking place in Myanmar from a military dictatorship to a ‘disciplined democracy’, and possibly beyond. Real and lasting change will depend on a more civilianised political system that permits the MPF to operate freely, according to internationally accepted standards, without interference from those in power. The reform of Myanmar’s police force cannot be implemented in isolation from other institutions of state. As the President has repeatedly stated, the benchmark for all public institutions must be the rule of law, administered fairly and impartially (Thein Sein 2012). There can be no further tolerance of a system that constantly alluded to such a regime but enabled practices that contradicted it. For decades, the ‘rule of law’ was conflated with ‘law and order’, as defined by a self-serving military government (Cheesman 2012). A more modern and effective police force will soon be rendered impotent if, for example, the government’s proposed legal reforms are unsuccessful and prosecutors, judges and prison governors fail in their responsibilities. There needs to be a clear break with the past at all levels of the justice system. Some observers have described Thein Sein’s political, economic and social reforms as ‘irreversible’, and in one sense they are right. It is hard to see Myanmar reverting to the dark days before 2011 but there is still considerable uncertainty about the future. Full democracies and full autocracies are usually the most stable forms of government but states undertaking the transition from autocracy to democracy are most likely to suffer from instability. In those circumstances, there remains the possibility that the Tatmadaw

Police Reform and the ‘Civilianisation’ of Security 285 could step back in, to a greater or lesser extent. Should Thein Sein’s reform programme falter, or unleash forces beyond its control, systemic weaknesses frustrate popular expectations, or the MPF be unable to cope with the demands being made upon it, then the arguments for a return to the old system may become louder, as some members of the armed forces and their supporters hark back to the imagined stability of military rule. Myanmar’s military leadership appears to have accepted political developments in Naypyidaw and, for the time being at least, seems prepared to let the government and Parliament exercise their roles as set out under the Constitution (Callahan 2012: 120– 31). A great deal depends, however, on the continued willingness of the Tatmadaw to loosen its grip on Myanmar, allow space for the administration to grow, and introduce new policies. Its attitude towards the amendment of the Constitution will be critical. If the armed forces permit the evolution of a fairer and more open society, then the MPF can be expected to play a greater role in maintaining law and order, and safeguarding internal security. Indeed, such a step will be essential if Myanmar is to make an orderly transition to genuine and sustained democratic rule. REFERENCES Amyotha Hluttaw (2012) Day 21, ‘Marine Police Force is under Construction for Prevention against the Acts Jeopardizing the Interest of State and People and Sovereignty of Nation, Combating Crimes and Attempts to Commit Crimes and Discharging of Duties for Security of Coasts and Water Courses’, Naypyidaw, 7 August, www.burmalibrary.org/docs13/AH-NLM2012-0808-day21.pdf. Asia Africa Intelligence Wire (AAIW) (13 October 2005) ‘Myanmar (Burma): 41st Anniversary of Myanmar Police Force Observed’, www.accessmylibrary.com/article-1G1-137479493/myanmarburma-41st-anniversary.html. Asian Human Rights Commission (AHRC) (2009) ‘Burma’s Cheap Muscle’ (Hong Kong, AHRC), 13 March, www.article2.org/mainfile.php/0801/343/. Aye Nai (2011) ‘Corruption Charges Hit Police Chiefs’ Democratic Voice of Burma, 26 January, www.dvb.no/news/corruption-charges-hit-police-chiefs/13894. Bayley, DH (1971) ‘The Police and Political Change in Comparative Perspective’ 6(1) Law and Society Review 91. BBC (22 February 2004) ‘Burmese General Views Police Role in National Defence’, broadcast on Burmese radio on 21 February and on BBC Monitoring Asia Pacific in London on 22 February. —— (7 October 2009) ‘Burma Said to Dismiss Rangoon Police Chief’ BBC Monitoring Service, East Asia and the Pacific. —— (27 January 2011) ‘Burma Dismisses Five Division, State Police Commissioners on Graft Charges’ BBC Monitoring Service, East Asia and the Pacific. Callahan, MP (1998) ‘The Sinking Schooner: Murder and the State in Independent Burma, 1948– 1958’ in CA Trocki (ed), Gangsters, Democracy, and the State in Southeast Asia (Ithaca, NY, Southeast Asia Program, Cornell University). —— (2003) Making Enemies: War and State Building in Burma (Ithaca, NY, Cornell University Press). —— (2009) ‘Myanmar’s Perpetual Junta: Solving the Riddle of the Tatmadaw’s Long Reign’ 60 New Left Review 27. —— (2012) ‘The Generals Loosen Their Grip’ 23(4) Journal of Democracy 120. Campagnac, CH (2011) The Autobiography of a Wanderer in England and Burma (Raleigh, Sandra L Carney and Lulu Enterprises).

286 Andrew Selth Central Institute of Civil Service, Union Civil Service Board, Phaunggyi (nd) ‘Training Activities’, www.ucsb.gov.mm/about%20ucsb/Central%20Institute%20of%20Civil%20Service%20 (Phaung%20Gyi)/details.asp?submenuid=33&id=502. Cheesman, Nick (2009) Policing Burma, Background Research Paper No 2 (Canberra, Australian National University), 24 February. —— (2012) ‘The Politics of Law and Order in Myanmar’ (Canberra, Australian National University, Department of Political and Social Change, PhD thesis). Clipson, EB (2010) ‘Constructing an Intelligence State: The Development of the Colonial Security Services in Burma, 1930–1942’ (University of Exeter, History Department, PhD dissertation). Community Policing in Indonesia (2007) (Jakarta, The Asia Foundation). Eleven (9 August 2012) ‘Marine Police Established in Myanmar’, www.thedailyeleven.com/national/ 471-marine-police-established-in-myanmar. —— (21 November 2012) ‘Myanmar Police Needs Modern Equipments’, www.elevenmyanmar. com/national/1403-myanmar-police-needs-modern-equipments. —— (27 March 2013) ‘Myanmar Police to Receive Assistance in Setting Up Cyber-Crime Division’, http://elevenmyanmar.com/national/science-tech/2938-myanmar-police-to-receive-assistancein-setting-up-cyber-crime-division. Greene, Will (2013) ‘Myanmar Tourism Statistics: A Close Look at the Numbers’ Tiger Mine Research, 20 January, www.tigermine.com/2013/01/20/myanmar-tourism-statistics/. Greenlees, Donald (2011) ‘Unfinished Business: Reform of the Security Sector in Democratic Indonesia’ 7(3) Security Challenges 5. Hindstrom, Hannah (2013) ‘Burma Disbands Notorious NaSaKa Border Guard Force’ Democratic Voice of Burma, 15 July, www.dvb.no/news/burma-disbands-notorious-nasaka-border-guardforce/29916. Human Rights Watch (2012) ‘The Government Could Have Stopped This’: Sectarian Violence and Ensuing Abuses in Burma’s Arakan State (New York, NY, Human Rights Watch). Hpyo Wait Ha (2012) ‘Corruption is Burma’s Biggest Problem: Upper House Speaker’ The Irrawaddy, 26 March, www2.irrawaddy.org/article.php?art_id=23286. IBAHRI (2012) The Rule of Law in Myanmar: Challenges and Prospects: Report of the International Bar Association’s Human Rights Institute (IBAHRI) (London, International Bar Association), December. INTERPOL (nd) ‘Myanmar’, www.interpol.int/Member-countries/Asia-South-Pacific/Myanmar. Irrawaddy (26 March 2013) ‘Burma to Launch Tourist Police Force’, www.irrawaddy.org/shortnews/burma-will-launch-a-new-tourist-police-force-next-month.html. Janowitz, Morris (1964) The Military in the Political Development of New Nations: An Essay in Comparative Analysis (Chicago, IL, University of Chicago Press). The Japan Times (TJT) (12 April 2013) ‘Myanmar Police Slow to Adjust to Unfamiliar Role of Peacekeepers’, www.japantimes.co.jp/news/2013/04/12/asia-pacific/myanmar-police-slow-toadjust-to-unfamiliar-role-of-peacekeepers/. Khin Myo Thwe (2013) ‘Myanmar Police Go Hi Tech’ Mizzima News, 8 March, www.mizzima. com/news/inside-burma/9022-myanmar-police-go-high-tech.html Kyaw Min San (2012) ‘Critical Issues for the Rule of Law in Myanmar’ in Nick Cheesman, Monique Skidmore and Trevor Wilson (eds), Myanmar’s Transition: Openings, Obstacles and Opportunities (Singapore, Institute of Southeast Asian Studies), pp 217–30. Letpadaung Report (2013) ‘Letpadaung Report Does Not Address Concerns, Places Security Forces above the Law’ Burma Partnership, 18 March, www.burmapartnership.org/2013/03/letpadaungreport-does-not-address-concerns-places-security-forces-above-the-law/. Lintner, Bertil (1990) Outrage: Burma’s Struggle for Democracy (London, White Lotus). Manual (1999) Manual for Members of the Police Force (Yangon, Myanmar Police Force Headquarters, Ministry of Home Affairs, 1 October (in Burmese).

Police Reform and the ‘Civilianisation’ of Security 287 Mendes, EP (1999) ‘Raising the Social Capital of Policing and Nations: How Can Professional Policing and Civilian Oversight Weaken the Circle of Violence?’ in EP Mendes et al (eds), Democratic Policing and Accountability: Global Perspectives (Aldershot, Ashgate). Myo Zaw Linn (2013) ‘Rights Group to Sue Police for “Sexually Assaulting” Trans-Women’ Democratic Voice of Burma, 15 July, www.dvb.no/news/rights-group-to-sue-police-for-sexuallyassaulting-trans-women/29901. Nakanishi, Yoshihiro (2013) Strong Soldiers, Failed Revolution: The State and Military in Burma, 1962–88 (Singapore, NUS Press). New Light of Myanmar (NLM) (14 March 1994) ‘Lt-Gen Khin Nyunt Accuses Police’, www. ibiblio.org/obl/docs3/BPS94-03.pdf. —— (8 September 2003) ‘Burmese Leaders Note Police Force Achievements at Reform Committee Meeting’, www.accessmylibrary.com/coms2/summary_0286-24332830_ITM. —— (8 December 2012) ‘It is Time for All to Carry Out Purification and Propagation of Sasana Ceremony to Apologise to State Sangha Maha Nayaka Sayadaws for Incidents Stemming from Protest in Letpadaungtaung Copper Mining Project’, www.networkmyanmar.org/images/ stories/PDF13/nlm081212.pdf. —— (28 March 2013) ‘To Possess High Defence Power, State, People and Tatmadaw Will Have to Join Hands’, www.networkmyanmar.org/images/stories/PDF11/min-aung-hlaing.pdf. Nwe Nwe Aye and Thet Khaing, (2005) ‘MPF Launches Anti-Crime Campaign in Yangon’ The Myanmar Times, 31 October, www.accessmylibrary.com/coms2/summary_0286-11558632_ITM. Ponnudurai, Parameswaran (2010) ‘Is Reform Stalling in Burma?’ Radio Free Asia, 4 December, www.rfa.org/english/east-asia-beat/mine-12042012121852.html. Saha, Jonathan (2013) Law, Disorder and the Colonial State: Corruption in Burma c 1900 (London, Palgrave Macmillan). Selth, Andrew (1998) ‘Burma’s Intelligence Apparatus’ 13(4) Intelligence and National Security 33. —— (2002) Burma’s Armed Forces: Power without Glory (Norwalk, CT, EastBridge). —— (2008) ‘Burma’s “Saffron Revolution” and the Limits of International Influence’ 62(3) Australian Journal of International Affairs 281. —— (2009) ‘Known Knowns and Known Unknowns: Measuring Myanmar’s Military Capabilities’ 31(2) Contemporary Southeast Asia 272. —— (2010) Civil-Military Relations in Burma: Portents, Predictions and Possibilities, Regional Outlook No 25 (Brisbane, Griffith Asia Institute). —— (2011) Burma’s Police Forces: Continuities and Contradictions, Regional Outlook No 32 (Brisbane, Griffith Asia Institute). —— (2012) ‘Myanmar’s Police Forces: Coercion, Continuity and Change’, 34(1) Contemporary Southeast Asia 281. —— (2013a) Police Reform in Burma (Myanmar): Aims, Obstacles and Outcomes, Regional Outlook No 44 (Brisbane, Griffith Asia Institute). —— (2013b) Burma’s Security Forces: Performing, Reforming or Transforming, Regional Outlook No 45 (Brisbane, Griffith Asia Institute). Si Thu Lwin (2013) ‘Women Look to Join the Police Force’ Myanmar Times, 8 July, www.mmtimes. com/index.php/national-news/7406-women-respond-to-police-force-training-call.html. Steinberg, David (2006) Turmoil in Burma: Contested Legitimacies in Myanmar (Norwalk, CT, EastBridge). Taylor, RH (2009) The State in Myanmar (London, Hurst and Co). Thawnghmung, AM (2011) ‘The Politics of Everyday Life in Twenty-First Century Myanmar’ 70(3) The Journal of Asian Studies 1. Thein Sein (2012) The Republic of the Union of Myanmar, President Office, ‘All Must Try to See National Race Youths who Brandished Guns Using Laptops, Government Not Divided into Hard-Liners and Soft-Liners’, Naypyidaw, 1 March, www.president-office.gov.mm/en/briefingroom/speeches-and-remarks/2012/03/01/id-218.

288 Andrew Selth Tin Maung Maung Than (2001) ‘Myanmar: Military in Charge’ in John Funston (ed), Government and Politics in Southeast Asia (Singapore, Institute of Southeast Asian Studies). Tinker, Hugh (1967) The Union of Burma: A Study of the First Years of Independence (Oxford, Oxford University Press). Voice of America (VOA) (1 April 2013) ‘Burma Urged to Prosecute Perpetrators of Sectarian Unrest’, www.voanews.com/content/rights-group-urges-burma-to-investigate-sectarian-violence/ 1632277. html. Wade, Francis (2012) ‘Progress Stops at the Myanmar Elite’s Door’ Al Jazeera, 4 December, www. aljazeera.com/indepth/opinion/2012/12/201212484532708930.html. Xinhua (20 June 1998) ‘Myanmar Police Urged to Implement Three Main Tasks’, www. burmalibrary.org/reg.burma/archives/199806/msg00343.html. Zaw Oo and Win Min (2007) Assessing Burma’s Ceasefire Accords, Policy Studies 39 (Southeast Asia) (Washington, DC, East-West Centre).

15 Legal Perspectives on Industrial Disputes in Myanmar KYAW SOE LWIN

O

VER THE YEARS, Myanmar has experienced industrial disputation in different forms. Some disputes have led to violence, resulting in impassioned strikes or picketing, prompting authorities to intervene. Others have been resolved relatively quietly. In this chapter, I demonstrate that labour dispute settlement practices in Myanmar have changed over time, reflecting the changing political positions of the various regimes that have ruled the country. Under the parliamentary regime and the Ne Win regime, which both favoured pro-labour policies, the labour dispute settlement institution was improved and expanded. Under the State Law and Order Restoration Council/State Peace and Development Council (SLORC/SPDC) government, which took power in September 1988, this institution was abandoned in favour of pro-capitalist policies. Under the new government that came to power in March 2011, the old model was replaced with a new industrial dispute settlement institution by the Settlement of Labour Dispute Law No 5/2012. Likewise, the various regimes’ attitudes and policies towards workers motivated (or demotivated) workers to rely on the labour dispute settlement institution to resolve their occupational issues. Under favourable political conditions, workers embraced the institution to settle their disputes but when the situation was not in their favour, workers’ confidence in the institution dropped and only a small proportion of the workforce used it. This chapter therefore analyses the extent to which formal industrial dispute settlement mechanisms have been used to address the concerns of Myanmar workers, and under what conditions, focusing on the different channels available to employed workers to resolve their work-related issues. LABOUR POLICY UNDER THE BRITISH ADMINISTRATION

The British government did not focus on establishing a strong institution in the field of labour and labour policy in Burma until after the Second World War. In fact, separate labour policies for Burma were not considered necessary by the British administrators, as Burma was one of many regions under the British India administration. This began to change in late 1924. At the end of that year, the British government, for the first time, appointed an assistant protector of immigrants as Labour Officer in the Office of the Development Commissioner of Burma (Burma 1952: 49). This officer was responsible

290 Kyaw Soe Lwin for investigating the cost of living of workers in Yangon. Six months after his appointment, the officer submitted a report, proposing that a labour office be opened in Burma (Burma 1952: 49). The British government acted on this by sending an official to India to study how the Indian labour offices were run there (Burma 1952: 49). After reviewing the report submitted by the officer upon his return, the British opened a Labour Statistics Bureau in Burma, with a total of 16 employees (Burma 1952: 49). In 1929 the position of the Officer-in-Charge in the Bureau was renamed ‘Director of the Statistics Bureau and Labour Commissioner’ (Burma 1952: 49). The limited duties of this Director were to implement labour laws such as the Workman’s Compensation Act 1926, the Trade Union Act 1926 and the Trade Disputes Act 1929 (Burma 1952: 49). In 1931 the office came under the control of the Home Department and was placed under the Ministry of Commerce and Industry during the Second World War (Burma 1952: 49). The big labour strikes that had taken place in late 1929 and 1930 meant the British government was unwilling to expand the role of the Bureau until after the Second World War (Burma 1952: 49). From then on, strikes and protests were, in fact, rare – at least until 1938, when numerous workers from the oilfields protested against their treatment by foreign employers. The government’s attempts to resolve these disputes were hindered by the eruption of the Second World War the following year (Burma 1952: 53). When British administrators returned after the war, they encountered challenges from the urban working class of Burma. Many of the labour protests and strikes that followed the British reoccupation were the outcome of both economic hardship and the politically motivated agitation of Burmese nationalists (Kun Zaw 1949: 3). Major demonstrations by workers that took place after 1945, such as the Police Strike and the Clerks Strike, shook the British administration to the core and compelled it to expand and improve the system of labour administration (Burma 1952: 49). A Labour Director position was created in 1946 by uniting two other positions, the Labour Commissioner and the Chief Inspector of Factories (Burma 1952: 50). In September 1946 the Rangoon Employment Exchange was established, to create job opportunities. Furthermore, after September 1946, the colonial government had directly handled all matters pertaining to the International Labour Organisation (ILO), dockworkers and the publication of the Labour Gazette (Burma 1952: 50). Outstation labour offices were also opened in cities including Mandalay, Yenanchaung, Taungoo and Tavoy in December of the following year (Burma 1952: 50).

LABOUR DISPUTES DURING THE PARLIAMENTARY PERIOD

When Burma won independence in 1948, the colonial labour institutions were greatly upgraded by the parliamentary regime. In fact, the labour movement under parliamentary rule was vibrant and provided workers with far more political opportunities than under the British. Workers employed both legal (or formal) and non-legal (or informal) institutional channels to resolve their industrial disputes. These included both formal channels such as the state industrial dispute settlement mechanisms, complaints to political parties and the ILO, and informal channels such as collegial and underground networks. Although the government had ambitions to boost the economy of the war-torn country, the Anti-Fascist People’s Freedom League (AFPFL) government was forced to tackle insurgencies throughout the country that left the economy in disarray and put great

Legal Perspectives on Industrial Disputes in Myanmar 291 pressure on the government in 1948 and 1949 (Myanmar Historical Commission 2006: 78; Thein Pe Myint 1999: 123). Despite the government’s best efforts, its economic development plans were delayed (No 1 Ministry of Industry 1988: 45–46, Ad-hoc Oilfields Enquiry Committee 1950, 1951: 18). As the economic situation of the country declined, the conditions for workers became serious, and many were retrenched without compensation. Government employees faced salary cuts and some workers experienced serious violations of fundamental labour rights. After 1951, the country’s economy began to return to normal but the lingering problems meant the number of industrial disputes rose during the parliamentary period. The AFPFL government had implemented a pro-labour policy before Burma gained independence and this was further developed by the 1947 Constitution of Burma (Burma 1952: 50; Myo Htun Lynn 1961: 82–84). In addition, several major labour laws, including the Trade Disputes (Amendment) Acts, were passed (Trager 1956: 477–78). Furthermore, Burma became an official independent member country of the ILO on 18 May 1948 (ILO 1950: 530). During the parliamentary period, workers had a number of institutional channels available to resolve disputes. Some workers approached political parties with which they were associated. Some used unions. Other workers, both those union-affiliated and those who were not, relied on the state’s industrial dispute settlement mechanism. Some workers lodged complaints against their employers at the ILO, while others relied on informal underground networks to conduct protests and strikes. On 22 October 1947 the first Industrial Arbitration Court was constituted and it settled a total of 19 dispute cases from 1947 to January 1952 (Burma 1952: 52). Since the Trade Dispute Act 1929 proved unable to settle the increasing number of industrial disputes, the AFPFL government introduced amendments in the Trade Disputes Act. These allowed the appointment of conciliation officers and granted them more authority (Burma 1952: 52), resulting in the Trade Disputes (Amendment) Acts 1948, 1950 and 1951, which further improved settlement of industrial disputes (Burma 1952: 52). Despite improvements to the law, some workers encountered administrative delays when they turned to the state to resolve disputes (UOB 1953: 597). The number of industrial disputes in 1948 was 116 but reached its highest level – 178 – in 1951 (UOB 1956: 281; UOB 1957: 76). Although it took some time to settle disputes lodged with it, the government industrial dispute settlement mechanism usually did so impartially, for example in relation to disputes at an ice-making factory, a private clinic and a cheroot/ cigar rolling company (BLG 1950: 1; BLG 1954: 2; BLG 1952: 3). Many workers also sought assistance from political parties to resolve their industrial concerns. Adopting Marxist Leninist approaches, some major political parties had formed mass and class organisations for workers before independence was achieved. For instance, the Burma Communist Party organised the All Burma Trade Union Congress and the Socialist Party organised the Trade Union Congress of Burma (TUCB) (Headquarters Central Committee BSPP 1974: 41, 55; Trager 1956: 469). By the end of 1950, a split had occurred in the Socialist Party, leading to the emergence of another new party and a new labour union (Lwin 1968: 275–77): the Burma Workers and Peasants Party and a new federated labour union called the Burma Trade Union Congress (BTUC) (Lwin 1968: 275– 77). In 1958 another new political party and labour union appeared out of a split in the AFPFL itself. The TUCB sided with one of the AFPFL factions, known as the Clean Faction, and created the United Labour Organization under its leadership in June 1958 (Lwin 1968: 279). Workers affiliated with these federated trade unions employed the

292 Kyaw Soe Lwin political muscle of their supporting political parties. For instance, in 1959 the workers and employers of the Maulana Bidi workshop were able to negotiate an agreed settlement through the efforts of politicians from the Burma Workers’ and Peasants’ Party.1 In another case, TUCB leaders who were members of Socialist Party successfully mediated a dispute that arose between the Thamaing Pottery Workers’ Union and a factory owner over the discharge of workers and failure to provide other occupational benefits (BLG 1951: 3). Other workers directly relied on their trade unions. For instance, the All Yangon Hair Dressers’ Association settled a dispute that emerged between hairdressers and salon owners over the notification of the reduction of salaries in a Broadway hair salon (Lwin 1968: 377). In another case, the Phyu township rice mill workers’ association was able to negotiate with the employer to satisfy the workers’ demands (Lwin 1968: 381). Some workers directly approached the ILO and sought assistance to address their issues. The ILO was, for example, involved in attempts to resolve the disputes with Oxygen Acetylene Company, Vertennes Company and at the dockyard in 1954 and 1957 (ILO 1955: 63–65; ILO 1958a, 1958b), although it proved unable to fulfil the demands of the workers. Other workers preferred to use informal networks, such as collegial networks and underground communist networks, to address their grievances. The protests of the All Burma Ministerial Service Union highlighted that many government employees were unhappy with the government about salary cuts. Although clerical staff attempted to organise strikes using the networks of colleagues and underground communists in 1949, these failed (Aung Win 1949: 89; Thant 1961: 165; Lwin 1968: 364). LABOUR DISPUTES DURING THE NE WIN PERIOD

After Ne Win’s military government took political power in March 1962 and abolished parliament, the army organised the Revolutionary Council and formalised military rule (Silverstein 1967: 8; Department of Historical Research 2011: 170–71). The Revolutionary Council then dissolved all existing political parties and their mass and class organisations by issuing the National Solidarity Act on 28 March 1964 (Headquarters Central Committee BSPP 1977: 47). Later, the Burma Socialist Programme Party (BSPP) was promoted into a state-led single party in 1971 (Silverstein 1977: 100). Introducing a form of socialist autarky, the Revolutionary Council attempted to organise its own mass and class organisations and proclaimed on 30 April 1962 that it would achieve a socialist state by means of what it called ‘the Burmese way to Socialism’ (Chit Maung 1969: 135–44). Within two years of the coup, a large number of businesses and enterprises were nationalised (Taylor 2009: 295) and, the country’s economy suddenly collapsed, with basic commodity prices falling dramatically (Chit Maung 1969: 82–83). Many foreign and local business people could no longer operate their businesses and thus discharged workers. Many workers suffered during the severe economic crisis that followed and some lost their jobs. As a consequence, the number of industrial disputes rose significantly. Since the army government needed strong political support from the working masses, it felt it necessary to introduce new, pro-labour policies. So, for example, after the dissemination of its ‘seven wishes for the working masses’, the Revolutionary Council issued a proclamation on labour affairs on 30 April 1963 (Headquarters Central 1

Interview with a former Bidi worker, 14 December 2012, Yangon.

Legal Perspectives on Industrial Disputes in Myanmar 293 Committee BSPP 1977: 15–16), which stated that it intended to protect the lives of workers and peasants; resolve any problem that might create frictional relations between workers and employers; promote collaborative relations between workers and peasants by cooperating with them; continuously monitor the disciplinary issues of workers; disseminate information about the basic rights and responsibilities of workers to all workers living in Burma; endeavour to nurture skilled workers; and circulate news of the intention of the Revolutionary Council to promote production through smooth tripartite relations between workers, the state and employers. Despite these announcements, as all trade unions had been dissolved, workers found that they had limited institutional channels, and so, from 1962 to 1966, they could only rely on the existing state-constituted industrial dispute settlement mechanism. On account of the rising number of industrial disputes, the Revolutionary Council expanded and improved that institution. It enacted a law on 14 August 1963 amending the Trade Dispute Act to allow the government to form the Central Workers’ Committee, which further organised workers’ subcommittees and workers’ appeal committees and granted them power to settle industrial disputes (Labour Directorate 1969: 3). As for state workers, since state workers were not allowed to employ the industrial dispute settlement mechanism, many of their grievances and employment-associated issues were resolved by senior army leaders (Myanmar Historical Commission 1993: 198–99). Major institutional changes took place in the fields of labour administration and labour policy under the Revolutionary Council’s administration after 1966. For instance, the army leaders organised a unitary labour association under the leadership of the BSPP in order to control working masses, acquire their political support class (Silverstein 1977: 110; Taylor 2009: 324) and resolve the concerns of state workers. After 1966 the People’s Workers Council was established under the direct management of the BSPP (Central Organising Committee BSPP 1967: 242), the name of which was changed to the Workers’ Association after 1974. Some workers embraced these institutions as a problem-solving mechanism in addition to existing institutional channels such as the industrial dispute settlement mechanism. The Association was, in fact, the only state-sponsored labour association and many state workers were forced to be members. Private sector workers found, however, that this institution favoured them. Others approached the state party, the BSPP, to resolve their occupational challenges; and some relied on private networks. State workers, in fact, found themselves institutionally constrained since they were ordered to exclusively rely on the party-managed labour associations for settling their grievances. When it became clear in 1974 that these associations were unable to address their issues effectively, they protested using networks of colleagues and underground politicians and activists. Army leaders responded violently to the strikes that ensued, killing more than 30. After this, many state workers, no longer trusting the state, responded to their economic problems by engaging in illegal activities such as corruption, collusion and even theft, relying on the support of colleagues and superiors (Taylor 2009: 378; Mya Maung 1991: 131, 181, 183, 185–87). As mentioned, the government was more supportive of workers in the private and cooperative sectors, hoping to persuade them to become members of the party-managed labour association. In this favourable political environment many private workers embraced the industrial dispute settlement institution, increasing the number of industrial disputes under Ne Win’s rule, as the following tables show.

294 Kyaw Soe Lwin Table 15.1. Industrial Disputes Settled (1962–69) Year

Number of settled cases

Number of workers benefited

Amount of compensation (in kyats) awarded to workers

Mar–Sep 1962

699

3,782

869,774

1962–63

2,651

53,544

3,895,054

1963–64

6,403

85,651

9,420,090

1964–65

10,054

58,210

7,390,614

1965–66

5,218

31,803

2,711,050

1966–67

4,400

24,503

2,011,406

1967–68

3,196

22,598

2,184,742

1968–69

2,069

8,142

1,505,037

Source: Central Organising Committee BSPP 1972: 28. Table 15.2. Arbitrated Industrial Disputes in Private and Co-operative Sectors Year

Township Trade Dispute Committee

Trade Dispute Appeal Committee

Central Trade Dispute Committee

1964

3,256

464

27

1965

6,202

2,707

168

1966

1,651

883

628

1967

1,061

768

605

1968

665

577

513

1969

632

532

360

1970

667

569

293

1971

544

485

338

1972

630

313

302

1973

358

475

303

Source: Htwe Htwe Aung 1975: 70. Table 15.3. Arbitrated Industrial Disputes (1981–85) Fiscal Year

Arbitrated Cases Township Trade Dispute Committee

Trade Dispute Appeal Committee

Central Trade Dispute Committee

Township Trade Dispute Committee

Trade Dispute Appeal Committee

Central Trade Dispute Committee

1981–82

138

140

173

176

117

40

1982–83

114

196

122

189

52

40

1983–84

176

141

100

132

31

26

1984–85

125

75

85

90

62

26

Source: Central Committee 1985: 219–21.

Remaining Cases

Legal Perspectives on Industrial Disputes in Myanmar 295 Interviews with workers and employers suggest that many private and co-operative sector workers felt they enjoyed basic labour rights during this period2 and, indeed, cases show that many private sector workers’ claims and demands were met via industrial dispute settlement channels. In one case, for example, a dispute broke out between a worker and his employer over reinstatement and a damages claim in a tanning factory (PWG 1965: 12). The Labour Subcommittee directed the owner to pay a total of 372 kyats in damages and reinstate the worker on 16 October 1964 at his last rate of pay. Since the owner was not pleased with this decision, the case was appealed. The appellate committee amended the previous decision, requiring the owner only to pay his worker 350 kyats in damages (PWG 1965: 13). Industrial disputes were also quite common in the cigar/cheroot rolling industry during this period. In one case, workers from this industry claimed for compensation for the closure of a factory, and a total of 21 workers were awarded compensation for their years of service (PWG 1979: 12–14). LABOUR DISPUTES UNDER THE SLORC/SPDC GOVERNMENT

Despite the efforts of Ne Win’s regime to build a socialist state, the economy declined under his leadership. In an attempt to fix Myanmar’s economic problems, army leaders demonetised 25 per cent of all the currency in circulation on 3 November 1985 (Tin Maung Maung Than 2007: 193; Taylor 2009: 377) and the prices of basic commodities rose. Despite the government’s assurance on 29 August that it would not happen, several large and small denomination bank notes were declared illegal on 5 September 1987 (Tin Maung Maung Than 2007: 193; Taylor 2009: 381). Since many university students were now unable to cover their school expenses, they demonstrated (Taylor 2009: 382). The government contained the demonstration violently, killing 283, although the official report only confirmed 41 deaths (Steinberg 2001: 6; Taylor 2009: 384). On 18 September 1988, the Burmese army led by General Saw Maung carried out another coup (Steinberg 2001: 1–2) and the resulting military regime abolished most previous socialist institutions, established the SLORC and liberalised border trade (Tin Maung Maung Than 2007: 355). Within a few years, the new military government introduced a market-oriented economy (Tin Maung Maung Than 2007: 360). The SLORC junta repealed many laws – a total of 151 laws by 1996 (Steinberg 2001: 82) – but it still relied upon the repressive laws introduced by previous regimes, including under colonial rule. For instance, the Unlawful Association Act 1908, the Official Secrets Act 1948 and the Emergency Provisions Act 1956 were popular under the SLORC administration (Steinberg 2001: 82). The SLORC (later known as the SPDC) primarily used these repressive laws to control its subjects. In the field of labour administration and labour policy, few formal changes took place. Although the SLORC/SPDC government abolished the socialist labour association, it still maintained many existing socialist labour laws and the skeleton of the industrial dispute settlement institution. It did repeal and amend a few pieces of labour legislation, for example, the Apprentice Act 1850 and the Children Pledging of Labour Act 1933 were repealed in 1992 (SLORC 1995: 337), while the Leave and Holidays Act 2 The author has interviewed around 15 workers and employers who narrated their experiences in the Ne Win period. The interviews took place in Yangon and Mandalay in November 2011 and July 2012.

296 Kyaw Soe Lwin 1951 was amended in 2006 (Office of the Attorney General 2006: 60). In addition, the Central Trade Dispute Committee was reorganised after 1988 and the number of trade dispute committees was reduced in 2005, with a few maintained in some major industrial areas.3 These changes aside, the regime did not do much to reform the socialist labour institution in line with the introduction of a market economy. In contrast to the earlier periods, very few industrial disputes were resolved through formal channels under the SLORC/SPDC administration. A total of 639 dispute cases were reportedly settled from September 1988 to June 1991 (SLORC 1991: 415), and 372 cases from April 1995 to November 1997 (SLORC nd: 393). During a meeting with the ILO in 2003, a government representative claimed that the Department of Labour received 92 industrial disputes from 60 factories and workplaces (14,202 workers had been directly involved) in 2002 (ILO 2003: 31). Moreover, the government delegate claimed that the township workers’ supervisory committee resolved 411 cases from 376 factories in 2007, and 190 cases from 178 factories in 2008 (ILO 2009). Some authorities insisted, however, that the number of industrial disputes declined after 2000. According to an official from the Central Trade Dispute Committee, there were 12 arbitrated cases in the fiscal year 2006–07; two in 2007–08; 17 in 2008–09; 11 in 2009–10; and 11 in 2010–11.4 The government figures presented at the ILO sessions appear to be an overstatement. An institutional vacuum occurred in the field of labour administration under the SLORC/SPDC for two main reasons. The first was the repressive nature of the military government. Since September 1988 senior army leaders had focused solely on national security and the expansion of their own power (Steinberg 2001: 77–78; Taylor 2009: 401). Although the Trade Union Act 1952 still applied during the SLORC/SPDC administration, army leaders did not allow workers to organise freely. Collective actions such as protests or strikes were largely curtailed and, if they took place, those involved were punished severely (ILO 2003: 32; ILO 2004: 249; ILO 2008: 257). Even the May Day labour celebration was treated as a serious crime by the junta (ILO 2008: 255). Cooperating with employers, local authorities took serious action against the workers who led protests or collective bargaining. After the 1988 putsch the SLORC/SPDC government did not tolerate any form of gathering, marching or walking together in groups of five or more (ILO 2004: 249). Order No 6/1988 restricted the rights of citizens to form associations (ILO 2004: 249) and the Unlawful Association Act 1908 was frequently used to arrest individuals who dared to associate (or communicate) with foreign organisations and underground associations (ILO 2004: 249). Workers also encountered severe political threats from the regime even for attempts to organise (ILO 2008: 255–61). Likewise, the army exacted rural labour and porterage for many state development projects. In fact, forced labour became infamous under the SLORC/SPDC administration (Horsey 2011; Tin Maung Maung Than 2007: 190). The second reason for the institutional vacuum that occurred in the field of labour administration under the SLORC/SPDC was the gradual development of a mutually beneficial relationship between authorities and the business community in the form of crony capitalism. Business people were provided with lucrative business opportunities in 3 4

Interview with a labour official, 25 October 2012, Yangon. Interview with the deputy director, 25 July 2011, Naypyidaw.

Legal Perspectives on Industrial Disputes in Myanmar 297 return for their assistance in carrying out the state’s projects and programmes and satisfying senior authorities’ personal ambitions. Patron–client relations developed between the business community and senior state leaders (Kyaw Yin Hlaing 2001: 253–70); and corruption increased (Kyaw Yin Hlaing 2001: 263). These situations further challenged the proper functioning of the labour institutions. Workers became silent and apathetic regarding their basic labour rights and entitlements.5 A very small percentage of labourers in the private industrial sector did challenge their employers and engage in collective bargaining and strikes (Myint Maung 2010). In such an unfavourable political climate, workers had limited options to resolve disputes. Some went to the Federation of Trade Unions of Burma (FTUB), while others used underground networks to present their concerns and grievances. A few industrial disputes were reported to the ILO. In one such case, a dispute over the discharge of several workers in a state-owned motor tyre factory was reported by the International Confederation of Free Trade Unions (ICFTU) (ILO 2004: 256). The ICFTU also became involved in an industrial dispute over the unlawful discharge of workers at the Unique Garment Factory in Hlaing Thar Yar township, Yangon. In another case, the ICFTU claimed that workers were intimidated for a collective request made to the Texcamp factory and forced to continue working (ILO 2004: 256). A complaint was also lodged by the ICFTU regarding the arrest of workers and unfair treatment in the Yes Garment factory (ILO 2004: 257). Despite the ILO’s attempts to resolve these complaints, workers’ demands were not met. On the other hand, although many workers thought the industrial dispute settlement mechanism was unreliable and unsupportive, there were still a few who used it. For instance, when a dispute broke out over the termination of employment, a tailor’s assistant in a garment factory called Onrush Manufacturing Company Ltd brought her claim to the state’s industrial dispute settlement system (MTDC 2011).6 The labour committee came to the conclusion that she was entitled to 66,800 kyats (equivalent to one month’s salary) for lay-off damages (MTDC 2011: 6). In another case, a total of 24 workers went through a formal industrial dispute settlement channel to resolve a dispute with their employer over financial claims for the closure of the Nagar-Phan-Myae (Dragon glass factory) (MTDC 2009). Although they were financially compensated, not all the workers’ demands were met (MTDC 2009: 3–4). In another industrial dispute over retrenchment and overtime fees in a company, the claimant, an electrical engineer, was awarded a total of 250,000 kyats for his four years of service by the Township Trade Dispute Committee, as well as 40,000 kyats for overtime fees (MTDC 2008: 4). REFORMS TO REGULATION OF LABOUR DISPUTES UNDER THE THEIN SEIN GOVERNMENT

Although labour had been under military suppression for almost 24 years during the SLORC/SPDC regime, the more relaxed political situation that emerged under the Thein 5 The author conducted interviews with more than 150 workers from different sectors for his PhD research both in Yangon and Mandalay in October, November and December 2011 and June and July 2012. These findings are based on those interviews. 6 Case files from the Mayangone Trade Dispute Committee (MTDC) were obtained from a labour official from Mayangone township, 29 July 2012, and copies are retained by the author.

298 Kyaw Soe Lwin Sein government provided workers with more opportunities to organise freely and participate in collective bargaining. After taking office in March 2011, President Thein Sein undertook positive reforms that very few people had anticipated. As a first step, the government released several political prisoners (BBC 2011; Nelson 2012a) and in August 2012 it dissolved several censorship rules for local publications (Nelson 2012b). Many labour activists were released and have since taken part in labour activism in many factories in industrial zones.7 Due to the support of these labour activists and significant political changes, workers from the private sector have begun to participate again in strikes and demonstrations. Some improvements have been seen in the field of labour administration and policy. For instance, on 21 November 2011 the government repealed the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers (NLM, 22 November 2011). It also enacted the Labour Organizing Law No 7/2011, which repealed the Trade Union Act 1926, and passed the Settlement of Labour Disputes Law No 5/2012, repealing the Trade Dispute Act 1929. These changes have led to significant reform of the regulation of labour disputes. The new laws allow workers to organise and freely carry out collective bargaining. As at 17 December 2012, 356 new labour unions had registered under the new registration process (MLESS 2013).8 Labour strikes have also begun again. According to government reports, more than 50,000 workers participated in labour protests between 1 May and 30 June 2012 (MLESS 2012a). Cases like the Tai Yi shoe factory labour protest show that industrial workers now have much greater bargaining power than they did before. Although the government has tolerated these strikes and demonstrations, it did not expect the prolonged and stubborn labour protests that took place. For example, on 6 February 2012 workers from Tai Yi shoe factory staged a strike for better wages and better working conditions (MTDC 2012: 8). Although negotiations took place, the dispute remained unresolved for some time. The case was eventually handed to the Township Trade Dispute Committee and agreement reached, although many workers were not satisfied with the decision. They filed an appeal to the District Trade Dispute Appeal Committee on 14 March 2012.9 When the appellate committee delayed the judgment, the workers’ delegates organised a strike in protest. On 30 March 2012 the Tai Yi workers prepared to march to the district trade dispute committee but were forcibly halted by the riot police on the orders of local officials, and 12 female workers were wounded. On the evening of the same day, an agreement was finally reached between the workers and the employer. After the Tai Yi case, several other major labour protests took place. For instance, on 6 July 2012 a strike was held by workers from the Grand Sport garment factory demanding improved working conditions and higher wages (MLESS 2012b). When the township conciliation officials negotiated the dispute, they were able to reach an agreement (MLESS 2012b). In another case on the same day, workers from the Great Wall garment factory staged a protest by gathering outside the factory, demanding higher wages (MLESS 2012c). After negotiation with officials, an agreement was finally reached (MLESS 2012c).

7 8 9

This is based on the author’s own observations. Ministry of Labour, Employment and Social Security (MLESS). Interview with Ko Phoe Phyu and the labour leader of the Tai Yi shoe factory, 22 July 2012.

Legal Perspectives on Industrial Disputes in Myanmar 299 After the labour strikes of June and July 2012, several collective bargaining events took place in a number of factories. Industrial labour has become brave and bold in raising its industrial complaints because of the significant change in the political climate and the greater level of democratic freedom. A large number of workers in small- and medium-scale enterprises have, however, chosen to remain unorganised and silent, because uncertainty still remains over the stability of the political transition.

CONCLUSION

Industrial disputes have arisen frequently throughout the history of Myanmar but the ways in which workers have attempted to resolve them have varied under the different governments. In addition to state industrial dispute settlement mechanisms, workers have employed a range of other channels as problem-solving tools to resolve their industrial concerns. In this chapter I have shown that formal state dispute resolution institutions have been consistently influenced by the political ideologies and policies of state leaders. Under the pro-labour regimes, the formal institution improved and the grievances of workers were more effectively resolved. Although the pro-capitalist SLORC/ SPDC regime did allow formal institutions for resolving labour disputes to exist, these were generally not supportive of the working masses. This changed when the new military-backed government of Thein Sein took power in 2011. Under his administration, significant labour law reforms have allowed workers to rely on a new industrial dispute settlement institution. In reality, however, only a small percentage of the workforce has so far dared to test the political waters and the attitude of the government towards the working classes is not as supportive as it could be. The efficiency and responsiveness of industrial dispute mechanisms depends on the attitudes of the officials who work in them. It is too early to predict how the current labour institutions will develop. It seems likely, however, that if the current government continues to implement democratic political reforms, this might provide much greater opportunity for more labour grievances to be raised and resolved without violence.

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302 Kyaw Soe Lwin Office of the Attorney General (2006) Myanmar Laws (2006) (Nay Pyi Taw, Office of the Attorney General). People’s Workers’ Gazette (PWG) (1965) ‘Alôkthama Ayugan Kawmati sôn pyat kyet mya [The decisions of the Labour Appeal Committee]’, vol 18, no 9, pp 10–12. —— (1979) ‘Wanizsa patibegka hmu Kawmati sôn pyat kyet mya [The decisions of the Trade Dispute Committee]’, vol 32, no 4, pp 12–16. Silverstein, Josef (1967) ‘The Burma Socialist Programme Party and its rivals: A One-Plus Party System’ 1 Journal of Southeast Asian History 18. —— (1977) Burma: The Military Rule and the Politics of Stagnation (Ithaca, NY, Cornell University Press). Steinberg, David I (2001) Burma: The State of Myanmar (Washington, DC, Georgetown University Press). Taylor, Robert H (2009) The State in Myanmar (London, Hurst & Company). Thant, U (1961) Pyidawtha kayi (dudiya paing)[Towards the welfare state, vol 2] (Yangon, Sapay Beikman). The State Law and Order Restoration Council (SLORC) (1991) Taing kyo pyi pyu Naingngandaw Ngyeinwut Pibyahmu Tizauk ye Apwè e thamaingwin hmatdan (1988 hma 1991 adi) [In the interest of the country, the historical achievements of the State Law and Order Restoration Council, 1988 to 1991], vol I (Yangon, Printing and Book Publication). —— (1995) Taing kyo pyi pyu: Naingngandaw Ngyeinwut Pibyahmu Tizauk ye Apwè e thamaingwin hmatdan (1991 hma 1995 ati) [In the interest of the country, the historical achievements of the State Law and Order Restoration Council, 1991 to 1995], vol II (Yangon, Printing and Book Publication). —— (nd) Taing kyo pyi pyu Naingngandaw Ngyeinwut Pibyahmu Tizauk ye Apwè e thamaingwin hmatdan (1995 ku hnit Epyi hma 1997 ku hnit Nowinba 14 yet ne ati) [In the interest of the country, the historical achievements by the State Law and Order Restoration Council, 1 April 1995 to 14 November 1997], vol III (Yangon, Book Publication Subcommittee). Thein Pe Myint (1999) Kyaw Ngyein (Yangon, Saroatzay Publishing). Tin Maung Maung Than (2007) State Dominance in Myanmar (Singapore, Institute of Asian Studies). Trager, Frank N (1956) ‘The labour movement’ in Frank N Trager (ed), Burma (New Haven, CT, Human Relations Area Files Inc). Union of Burma (UOB) (1953) Pyidaungsu Myanma Naingngandaw Paliman: Pyitthu Hluttaw nyilagan hmatdan, Sa twè 3 azi awe ahmat 9 [Union of Burma, the second Parliament’s record of proceedings], vol 3, no 9 (Myanmar National Archives), file accession no 398, serial no 2/26. —— (1956) Pyidaungsu Myanma Naingngandaw Paliman: Pyitthu Hluttaw nyilagan hmatdan, Sa twè 6 azi awe ahmat 6 [Union of Burma, the Parliament’s record of proceedings], vol 6, no 6 (Myanmar National Archives), file accession no 435, serial no 2/26. —— (1957) Pyidaungsu Myanma Naingngandaw Paliman: Pyitthu Hluttaw nyilagan hmatdan, Sa twè 3 azi awe ahmat 2 [Union of Burma, the second Parliament’s record of proceedings], vol 3, no 2 (Myanmar National Archives), file accession no 465, serial no 2/26.

LAWS Unlawful Association Act 1908 Workman’s Compensation Act 1924 (The Burma Code, Vol V) The Trade Union Act 1926 (The Burma Code, Vol V) The Trade Disputes Act 1929 (The Burma Code, Vol V) Official Secrets Act 1948 Trade Disputes (Amendment) Acts 1948, 1950 and 1951

Legal Perspectives on Industrial Disputes in Myanmar 303 Emergency Provisions Act 1956 Labour Organization Law No 7/2011 (Pyidaungsu Hluttaw Law) Settlement of Labour Dispute Law No 5/2012 (Pyidaungsu Hluttaw Law)

16 War, Law, Politics: Reflections on Violence and the Kachin NICHOLAS FARRELLY*

L

ONG-RUNNING DISPUTES BETWEEN Myanmar’s governments and the country’s ethnic minority peoples are a messy knot of politics, culture, economics and law. To disentangle this knot requires understanding of the nature of political power and legal authority in Myanmar. To explore why political forces are so overwhelmingly important to the understanding of Myanmar’s legal environment, this chapter examines the recent history of war between the Myanmar government and the Kachin Independence Army/Organisation (KIA/O). The war that is described here commenced on 9 June 2011 with the breakdown of a 17-year ceasefire between the two sides. It was an often brutal conflict across the mountains and valleys of northern Myanmar. A new and tentative ceasefire was agreed in May 2013, followed by rounds of further negotiation. The current cessation of hostilities – as hesitant and incomplete as it remains in late 2013 – further illustrates the convoluted character of conflict resolution in situations of prolonged inter-ethnic war and mistrust. The unravelling of the 1994 ceasefire left a festering political and security crisis in the north of Myanmar. That ceasefire had proved a linchpin of national strategy and regional security. Like many other such deals, it had legal and political implications under Myanmar’s former military regime, the State Law and Order Restoration Council (SLORC)/State Peace and Development Council (SPDC), which used the arrangement to guarantee access to the rich mining, timber and hydro-power resources of the Kachin and Shan States, and to facilitate easy trade to south-western China. The arrangement was unfinished, perpetually, and thus defined by the limitations of an agreement that did not quite meet the threshold for peace and yet avoided the worst excesses of war. For those who lived under the ceasefire it was an inelegant and often unsatisfactory compromise. Resentment about its management was widespread. In parts of northern Shan State and across the Kachin State the local population made no secret of their discontent. Nonetheless the agreement was maintained because it helped to ensure economic enrichment, while dampening the prospect of reignited conflict. During the ceasefire period, the opinion that further violence would be too destructive and disruptive tended to prevail.

* This chapter draws, in part, on research conducted for two theses completed at the University of Oxford (Farrelly 2007, 2010), while the author was a Rhodes scholar at Balliol College. It is supplemented by research undertaken as a Research Fellow at the Australian National University, and completed under the auspices of an Australian Research Council Fellowship.

306 Nicholas Farrelly To understand how the Kachin ceasefire dissolved and the character of the violence that followed, this chapter argues that the creation of a strong legal basis for conflict resolution has not been a priority in Myanmar, and that political considerations have instead proved paramount. The legal basis of ceasefire agreements has been subordinated to the significant political and economic concerns that have given them momentum and purpose. What such ceasefires indicate is that parties to conflict are prepared to invoke a style of legal argument when it serves their needs, yet perceive such techniques as almost entirely instrumental. This might be a consequence of bureaucratic habit on the part of the Myanmar authorities and a lack of confidence in official agreements on the part of the Kachin leadership. Where these two groups often meet is an unstable middle ground, dominated by repeated jousting, unconsummated aspirations for settlement, and belief in the intrinsic superiority of their own positions. As a context in which the mechanics of legal dispute resolution are deployed, the Kachin situation has one crucial, and often unrecognised, element: the deployment of organised violence for political purposes. This chapter begins with a brief overview of the modern history of armed conflict in Kachin areas of northern Myanmar. This is followed by an interrogation of the ceasefire agreement between the KIA/O and the Myanmar government in order to highlight some of the reasons that the arrangement broke down in 2011. This leads to a series of reflective analyses that seek to position the argument about the relationship between politics and law in ways that are meaningful for an understanding of the special circumstances of the Kachin conflict. This effort to explain Myanmar’s long history of lurching between peace and conflict, often existing in an un-demarcated middle ground, is founded in the relationships established between war, law and politics. This presents a number of problems for the analysis of such conflicts when the prevailing assumption – at least among some outside observers – is that the solution will be forged in a legal settlement. This chapter suggests that a different approach to understanding and managing ethnic conflict in Myanmar is required. At a time when serious consideration is being paid to the relationship between peace and democracy (see Nilsen 2013), this chapter suggests a fresh understanding of the variety of ways that law and war have interacted over time. HISTORY OF CONFLICT IN NORTHERN MYANMAR

While there have been episodes of warfare in northern Myanmar for centuries, the widespread use of modern weaponry and military doctrine began in World War II. 1 At this time the British colonial government had ‘controlled’ northern Burma for 60 years, and many Kachin had already converted to Christianity from their earlier animistic beliefs, yet it was only the global conflagration that forced the Jinghpaw Wunpawng (the united Kachin) into mass contact with the modern world. During the war, almost all Kachin groups allied with British and American forces against the Japanese and their Burmese collaborators.2 Allied airbases were established in the Kachin State and Kachin guerrilla units, specialising in combat behind Japanese lines, distinguished themselves in battle (Zedric and Dilley 1996: 146; Myihtoi Gam Awng 2000: 41–43). Fierce fighting in Kachin For an account of the eve of this period see Sadan 2010. One Kachin chief who sought to align with the Japanese was Sima Duwa Naung, a Buddhist, who is often described as the ‘only’ Kachin who worked closely with the Japanese during the war. 1 2

War, Law, Politics 307 areas (see for example Hpan Ja 2001: 195) led to the consolidation of a ‘modern’ Kachin military ethos (Lahpai No Seng 1988: 20–23; Hpauwung Tang Gun and Chyauchyi Naw Ja 2003: 3; Naw Ja 2004), galvanised by ‘spectacular tactical combat success’ (Paddock 2002: 27). Upon Burma’s independence from Britain in 1948, many Kachin soldiers expected that their efforts would be recognised in a democratic and federal administrative structure. Their hopes were forged by a legal document, the Panglong Agreement, signed in 1947 between the pre-independence Burmese, Shan, Kachin and Chin leaderships (Tucker 2001: 128–29). Kachin hopes for a just reward ended in 1961 when many saw the proposed imposition of Buddhism as the state religion as an affront to what, by that stage, had become a very widespread and deeply-held Christian faith (Freston 2004: 95; Gravers 1999: 57; Johnson 2005: 65–66). In direct response to their lack of autonomy under post-colonial Burmese rule, the Kachin rebellion began in 1961 to counteract the central government’s twin impositions of ‘Burmanisation’ and Buddhism. Fuelled by resentment against Burmese dominance in national affairs, and rumoured to enjoy ‘political and military support’ from China (Trager 1969: 107), the KIA grew into a potent force of over 6,000 soldiers (South 2003: 166). They were ‘one of the best organized and motivated rebel groups’ (Seekins 1997: 536). The KIA’s many battles with the government provide illustrations of Kachin martial abilities (Smith 2006: 42). During more than three decades of insurgency they used ‘World War II guerrilla-tactics . . . in virtuosic fashion’ (Scherrer 2003: 119; ‘Jinghpaw Rangers’ in Withers 2011: 59, 62–63). In an audacious 1985 KIA operation, for example, the highest-ranking ethnic Kachin officer in the Burmese Army, the Northern Commander, Brigadier General Lazum Khun Phan, was assassinated (MacDougall and Wiant 1986: 192–93). With such combat success came power and wealth. The KIA defied the central government by ‘at times controlling half the Kachin state’ (Freston 2004: 96), making the Kachin the most successful anti-government force in the country. Over the years, weaker insurgent groups from other parts of Burma flocked to KIA areas for training and protection (Rajah 1998: 136), as did some anti-government elements from across the border in north-east India (Goswami 2012: 188–89). Nonetheless, the Kachin insurgency began to falter in the late 1980s under the weight of geopolitical and tactical shifts. In 1987 a series of major central government military successes in the southern Kachin State led to the ‘capture of all KIA bases along the southern portion of the Burma-China border’ (Haseman 1988: 226). Then in 1989 two Kachin officers, Zahkung Ting Ying and Layawk Zelum, formed the New Democratic Army – Kachin (NDA-K): a ‘ceasefire army’. After their agreement with the Myanmar government they were given rights to ‘legally’ administer an area in far eastern Kachin State called Special Region 1. In 1991 the fourth Brigade of the KIA followed by mutinying to create the Kachin Democratic/Defence/Development Army (KDA).3 They also promptly agreed a ceasefire with the Myanmar authorities and were permitted to administer their own Special Region. Both of these armies – which the SLORC/SPDC called ‘ceasefire groups’ – remained relatively small and never enjoyed the support of most Kachin, who maintained strong attachments to the original, KIA-led insurgent movement. Drawing on his recent research among Kachin activists, Henry (2011: 110) explains 3 The KDA’s full name changed repeatedly as the ceasefire context has required different stances. Since early 2007 the title ‘Kachin Development Army’ has usually been deployed by the official Myanmar media, although some of the older designations were still in use in more recent times.

308 Nicholas Farrelly that the ‘Kachin [research] participants, all from non-armed groups, said that the KIO had enjoyed broad community support since its formation, with one saying “the KIO is the heart of our Kachin people”’. Such sentiments were tested, however, in 1993 when the three remaining KIA brigades were negotiating their own ceasefire settlement with the Myanmar government. The deal was naturally contentious, although the Kachin elite determined that it was in the best interests of Kachin society as a whole. It was ‘finalized on 29 September when MajGen. Zau Mai4 met Myanmar’s powerful military intelligence chief, Lieut. Gen. Khin Nyunt in Myitkyina’ (Lintner 1994: 427). The final agreement was signed on 24 February 1994 (Lasi Bawk Wa 2001: 95; South 2003: 167). It has been suggested that Chinese pressure led the remnant KIA brigades to negotiate this truce (Sik 1995: 382; Freston 2004: 96; South 2003: 166). It is also commonly accepted that the ceasefire was agreed because, after decades of fighting, there was a stalemate in ‘a war that neither side [could] hope to win’ (Karan 2004: 278). THE KACHIN CEASEFIRES

That ceasefire provided numerous advantages for both KIA/O and Myanmar leaders. The agreement was that ‘the KIO/KIA continue to administer about two fifths of Kachin State – the territories that had remained under its control by the time of signing the ceasefire agreement’ (Grundy-Warr and Dean 2003: 88). Under the terms, the KIA/O were also granted special privileges to manage a semi-autonomous region called Special Region 2, which included their current headquarters at Laiza near the Chinese border in far eastern Kachin State. The ceasefire was supposed to give the KIA/O the ‘inside of any political process’ and so fortify Kachin interests in the military stalemate (Smith 2006: 51). During the ceasefire years, in the Special Region – and sometimes elsewhere in the Kachin State – Kachin soldiers wore their drab-green uniforms with distinctive crossedsword shoulder patches, and were sometimes seen carrying weapons. At the same time, many Kachin were not content with the ceasefire. In 2004 the KIA was dealt a blow by the assassination of its Deputy Chief of Staff, an attempted coup at its Laiza headquarters and the defection of its intelligence chief, Colonel Lasang Awng Wa, who left to form his own ‘KIO/KIA splinter group’ – often referred to more extravagantly as the Lasawng Awng Wa Nyein Chan Yei Apwe (Lasang Awng Wa Peace Group). As Kurt Lambrecht (2004: 167) has suggested, ‘the regime’s claim that the ceasefire agreements are indicative of national unity [was] belied by the fractious nature of cease-fire politics’. Conflict among factions in the Kachin independence movement – and significant internecine strife including coups and assassinations – only increased as dissent about the ceasefire strategy grew. Dean (2012: 130) has provided an accurate assessment of the effect of the ceasefire across Kachin society more generally: The ceasefire of 1994 greatly changed the structure of security/insecurity. The military government has succeeded in generating the feelings of insecurity amongst many Kachin who live in towns and villages in the Tatmadaw5 controlled areas. The physical presence of uniformed soldiers and the army camps in Kachin State serves as a constant reminder of direct Myanmarese 4 5

Zau Mai was then the deputy Chairman of the KIO. This is Burmese for ‘Defence Services’.

War, Law, Politics 309 State domination. Feelings of insecurity predominate as villagers remain vulnerable to the army’s ‘legal’ yet illegitimate practices.

The challenge faced by the Kachin leadership during these years was that while they needed the ceasefire to support local economic and cultural activities, at a political level it became increasingly difficult to justify. Many prominent Kachin became outspoken opponents of the ceasefire and its implications for what they still considered the rightful campaign for greater Kachin autonomy and, indeed, self-determination. The next challenges to the ceasefire and its status emerged after the promulgation of Myanmar’s new 2008 Constitution. That Constitution was designed to integrate ethnic political movements, such as the KIA/O, into a single, national political and legal order. It was the culmination of a long-term legal and political reform agenda in which members of the KIA/O had actively participated. As Lieutenant Colonel Hla Min (1998: 39) once explained, ‘The military government is systematically moving towards the main objective of a modernized, well-developed and peaceful nation within a consolidated union and supportive economic infrastructure’. Their progress towards that objective had been frustratingly slow, with a series of erratically scheduled National Assemblies, yet once the agreement was made there was some hope that further progress towards a federal union would be possible. As I explain elsewhere (Farrelly 2012a), there was an appetite for conciliation and compromise among the Kachin leadership. When, in the lead-up to the 2010 general election, leaders from the KIA/O formed a new political party, the Kachin State Progressive Party (KSPP), the optimism among many Kachin was palpable (on the 2010 elections, see Lidauer and Saphy, this volume). For the Kachin, the challenge of working with the Myanmar government was complicated by their internal divisions and close links to the Myanmar Army. The KIA/O remained the most significant Kachin military and political force but it faced challenges from the NDA-K, headed by Zahkung Ting Ying, and from the Lasang Awng Wa Group, which had splintered from the KIA in 2004. Named after a former KIA intelligence supremo, this group’s independent status was symptomatic of the internal conflict that occasionally ruptured the KIA/O. There were also sporadic outbreaks of factional brawling among the KIA/O leadership itself, some of which led to dramatic purges of senior officials. Throughout such turbulence, the Myanmar Army’s Northern Command remained a constant presence in the life of the KIA, with regular delegations travelling between the two sides. On special occasions, such as at the Kachin State Day Manau festivities, held around 10 January each year, there were opportunities for the two sides to mingle and share confidences. These occasions were well lubricated by the hospitality of Kachin economic leaders benefiting from the concessions, especially in mining and logging, made directly possible by the ceasefire between the Kachin and Myanmar sides. In the end, the nexus between Kachin military and political interests motivated the Myanmar side to call for the demobilisation of autonomous KIA forces. During a series of tortuous negotiations from 2008 to 2010 the KIA/O and Myanmar failed to come to an agreement on precisely how the Kachin armed group would be integrated into Myanmar’s national security forces. This precipitated a crisis where the KSPP was barred from contesting the November 2010 election, leading to victories by the militaryaligned Union Solidarity and Development Party (USDP) in most of northern Myanmar’s Kachin-dominated constituencies. As tensions grew in late 2010 and the early months of 2011 it appeared that new conflict was likely. Then, a number of otherwise insignificant

310 Nicholas Farrelly incidents between KIA and government forces led to the formal breakdown of the ceasefire on 9 June 2011. This came at a time when the government was facing a number of ‘diminished but not yet exhausted’ conflicts along its eastern borders (Ball and Farrelly 2013). If, as Dean argues, ‘the ultimate aim of the ceasefires has been to gradually disarm and weaken the ethnic political resistance groups’ (2012: 130), then the resumption of hostilities in Kachin areas was a test of the KIA/O’s frailty.

THE END OF THE CEASEFIRE

Before its implosion, analysts tended to concur that the Kachin ceasefire was not predicated on shared understandings of a legally enforceable agreement but rather on the distribution of various economic and political opportunities. Those arrangements meant the Myanmar government could work alongside Kachin interests to share the resources available in Kachin areas. At the top of the list for the division of these spoils were the jade mines centred on Hpakant in western Kachin State. From the mid-1990s, a new generation of Kachin, Chinese and Myanmar business interests coalesced to exploit the booming Chinese demand for imperial green jade and its lesser, yet still precious, cousins. One jade catalogue describes the area as the ‘world’s most significant jadeite tract . . . among some of the most inaccessible forested terrain’ (Holmes 2005: 26). The profits available to those who controlled major stakes in the mines were incredible, and a sprawling workforce was accommodated in the informal settlements around the mining sites. Over time, heavy equipment was imported to support the mining operations and with it a new, sophisticated approach to the industry emerged. This was only possible because of the ceasefire. During the years of conflict that followed the 2011 resumption of hostilities, Myanmar’s jade production suffered. For a period, the government-sponsored jade auctions, held at regular intervals in the new capital of Naypyitaw, needed to be suspended because of the paucity of supply. The ceasefire itself was intimately linked to the jade industry and it is no coincidence that, at the elite level, wealth from the mines helped to lubricate the interactions of the two sides. For the Kachin, the links between this new wealth and the ceasefire were apparent. Kachin mining conglomerates such as Jadeland Myanmar (discussed at some length in Farrelly 2007) became readily associated with economic, cultural and political success. Their leaders were well-recognised figures in Kachin society and worked consistently to establish themselves as facilitators of political and cultural interaction. In general, the KIA/O ceasefire provided enough space for the two sides to develop mutually beneficial and reinforcing interactions. These interactions gave the Myanmar government an opportunity to consolidate its military presence in northern Myanmar, especially in areas near Myitkyina, Bhamo and Hpakant. Lands near the Kachin State capital of Myitkyina were re-fortified with the garrisons of new battalions, and the entire system was consolidated around the control of the Myanmar Army’s Northern Command. Its soldiers, with their distinctive upwards-facing arrow, were a daily presence on the streets of places like Myitkyina, where they mingled with a population that increasingly reflected the migration policies of the government. Ethnic Burmans (Bama) from elsewhere in Myanmar were encouraged to seek residence in Kachin State, with provisions made for their relocation to new residential areas, and many took the opportunity to develop new lives around this northern frontier. The way that inter-ethnic

War, Law, Politics 311 interactions emerged and were consolidated gave the illusion that there was a final and formal détente between the Kachin and the Myanmar side. Below the surface, however, the ceasefire was precarious. That fragility became particularly apparent in the lead-up to the 2008 constitutional referendum. The Kachin leadership, emphasising their KIA/O ties, had participated in the drawn-out constitution drafting process and were, in general, optimistic that they could tolerate its provisions and limitations. The years of ceasefire had provided lessons in the advantages of staying close to Myanmar decision makers and working to support their intentions. After the promulgation of the Constitution, the KIA/O struggled to obtain approval for their political party to run in the 2010 election, frustrating their efforts to be full partners in the electoral process. Rounds of negotiations failed to achieve the desired compromise, with the government insisting that the new KSPP sever all links to the KIA. Given the background of leading figures in its establishment, this would prove an impossible demand. Notwithstanding the impracticalities of the government approach, many on the Kachin side also hesitated to provide such a ready surrender to Myanmar demands. Other ethnic parties generally managed to convince the authorities that they could be included without undue risk, with dozens of ethnic political parties contesting the 2010 poll. Most of these parties ultimately had members elected to legislative bodies at both local and national levels. After missing out on the opportunity to secure a modicum of legislative representation, it was apparent by early 2011 that Kachin politics, as an exception to the overall pattern of post-election integration and collaboration, was entering a new and dangerous phase, with the prospect of conflict looming once more (see Farrelly 2011a). Early clashes between KIA and government forces led to the full resumption of hostilities in June 2011. The proximate cause of this renewed conflict was a dispute over border security but there was no doubt that the preamble to the conflict, based in the long and fraught years of ceasefire, was the fundamental issue. Leaders from the government and Kachin sides then took to their familiar positions of accusation and counter-accusation as violence escalated and the prospect of a quick resolution faded away. At no stage in this process was adherence to the law the fundamental issue – indeed it is hard to determine whether there were any legal grounds for the new war. Instead, throughout the lead-up to the new war, there was a consistent problem of political negotiation failing to fully reconcile different political positions. As Holliday (2013: 93) succinctly put it, ‘problems amassed during five decades of military misrule proved resistant to rapid resolution. National reconciliation with ethnic groups gained no purchase in Kachin State’. Over time, the notion of reconciliation in the context of the end of the 17-year ceasefire became tied to the invocation of the Panglong Agreement – the foundational ethnic pact signed back in 1947. This legal and political covenant has taken on great significance for the Kachin, while the Myanmar side has sought to downplay its contemporary role. There are good strategic reasons for emphasising the status of this document, especially at a time when the government enthusiastically ties itself to General Aung San’s independence legacy. It is in this context that ‘Panglong’ has taken on mythical status for those who have struggled for the rights of ethnic peoples in a federal union of Myanmar, and who consider the agreement signed with Aung San before his assassination to be the linchpin of future peace and security. The idea that the Panglong Agreement determines the regulation of ethnic politics is one that has developed organically, spurred also by the expectation that if Aung San Suu Kyi ever takes power she will be more inclined to

312 Nicholas Farrelly acknowledge its inclusive spirit (see Diamond 2012). Nonetheless the Myanmar government has consistently rejected the notion that this decades-old document is relevant to today’s peace negotiations and, in particular, to the Kachin conflict. There may come a time when the Panglong Agreement, or some reincarnation, is central to the outcomes of ethnic politics. For now, however, in the calculus of risk and reward that determines Myanmar government decision-making and the agendas of ethnic political leaders, it is the use of violence, rather than legal argument, that has mattered. Part of the reason that violence and politics have become so intimately enmeshed is that the two sides have not developed shared understandings of legal mechanisms and are continually exasperated by different understandings of these issues. This is partly a consequence of the way the Myanmar armed forces have spread themselves across the length and breadth of the country since seizing power in the coup of 1962 (Farrelly 2013a). There are few areas that are not home to at least some bases belonging to the Myanmar Army. These range from relatively modest outposts to much more significant facilities. It is those more significant facilities that are presented in Map 1. It shows that there are large numbers of major Myanmar Army installations in the crucial parts of eastern Kachin State and northern Shan State that are designed to limit the freedom of movement granted to the KIA/O. There are few other parts of the country where so many military installations are concentrated.

A WAR OF AMBUSH AND NEGOTIATION

The preponderance of Myanmar military deployments to the northern Shan State and the eastern Kachin State meant that, once the ceasefire collapsed on 9 June 2011, the two sides were ready for war, with men and materiel close to the frontlines. They had been preparing for years. Nonetheless, during the early phase of the new war there were opportunities to de-escalate the violence. Over a number of days the two sides were forced to consider the alternatives to renewed war. These were not embraced for a number of reasons, including the fact that the two sides moved quickly to reinforce themselves. A shroud of ambiguity, uncertainty and denial soon enveloped much of the day-to-day conflict, although more spectacular operations, such as those launched by KIA operatives around Myitkyina, received widespread media attention (Farrelly 2011b). The escalation dynamics in such a conflict are difficult to generalise because it is decisions made at various levels of command that make violent action possible. For the Myanmar side, the challenge was to defend against the ferocious attacks of small bands of well-trained, heavily armed and highly motivated KIA fighters (see KNG 2011). These fighters used the tactic most readily at the disposal of guerrilla forces the world over: ambush. In a war its legal status is relatively clear. It is legitimate to use surprise and audacity to mount offensive operations against an enemy. The legal status of the war between the KIA and the Myanmar Army was, however, never clarified to the extent that all ambiguity could be eliminated. For the KIA, the most effective way to ensure it extracted a price from the Myanmar Army for its incursions was to use its roaming squads, often with only a handful of members, to attack mobile Myanmar Army units. Some of these ambushes resulted in large numbers of Myanmar dead, and in most cases the KIA managed to extract its

War, Law, Politics 313 Map 1: Concentration of Major Myanmar Military Installations

314 Nicholas Farrelly forces without suffering casualties.6 The aftermath of some attacks was later broadcast on Youtube, a new outlet that allows KIA combat to be digested by a wider audience. The success of these guerrilla tactics, honed now by generations of KIA fighters, ensured that the Myanmar side needed to be wary of unnecessary manoeuvres in vulnerable areas. As the scope of KIA activity widened, such areas spread into vast swathes of northern Shan State and right across the Kachin State. The KIA mounted audacious raids targeting Myanmar supply lines, and in the process attacked railway and shipping infrastructure. This was a stark reminder to Myanmar commanders of the incident in 1985, when the Northern Commander was killed by the KIA in a brazen attack. In September 2012 a member of the assassination squad, Lahpai Zazu Seng, was released from prison after serving a 27-year sentence (Lawi Weng 2012). On his release he signed a document stressing that he would work for the peace and development of the country. Despite such gestures, the ambushes in rural areas of the Kachin and Shan States continued, and both sides sought to fortify their positions and bring in heavier weaponry. Sometimes the sporadic ambushes would lead to prolonged battles between the two sides, and on occasions there were days-long engagements. Under these circumstances, the KIA would often struggle to maintain the battlefield dominance that it enjoyed in opportunistic raids on Myanmar patrols and outposts. Instead, Myanmar artillery and, occasionally, airpower was arrayed against KIA positions. The Myanmar media, especially government-controlled daily newspapers such as The New Light of Myanmar, worked to undermine the story of heroic KIA operations (Farrelly 2012b). They downplayed Kachin success and sought to undermine community confidence. Part of the strategy involved trumpeting any signs that the KIA was, once again, facing internal disunity. In official announcements the Myanmar government tended to use the phrase ‘return to the legal fold’ to describe the surrender of KIA personnel (see MRTV3 2012). The legal basis of the ambush and negotiation dynamics was often difficult to discern. Indeed, during the first year of the war the Myanmar government wrong-footed some of its critics when it suspended construction on the Myitsone dam, at a site north of Myitkyina. This unilateral presidential decision came in the wake of widespread criticism from environmental and ethnic activists. The US$4.6 billion Chinese-backed hydroelectricity project has since fallen into abeyance. According to Kyi Phyo Wai (2012: 47), ‘Conquering the controversial Myitsone dam project was a rare victory by local Kachin and Burmese people and was a serious test for the new civilian-led, military-backed government in Burma (Myanmar)’. The decision once again reinforced the political basis for making decisions in Myanmar. It has never been clear that any legal justification could be mustered for this abrupt move against the Chinese project. In a context where politics has tended to overwhelm other priorities the final phase of the war is telling. In the last months of 2012 the conflict between the KIA and the Myanmar government began to escalate with more intense and prolonged engagements. After long appearing prepared to accept the fixed Kachin positions along the Chinese border, the government ramped up its attacks. These led, during a difficult period in December 2012, to intense bombardments of Laiza, the KIA/O’s de facto capital, and the surrounding areas of 6 For some early estimates of casualties in the 2011–13 Kachin war, see Farrelly (2011c) and Bo Hmu Gyi (2011). Reliable figures are not available for the conflict as a whole but there is appreciation on both sides that the combat death toll was very significant. As one Myanmar government figure told the author in 2013: ‘We don’t know how many died but it is too many, always too many’.

War, Law, Politics 315 dense Kachin military deployments. Protecting Laiza became the KIA’s final priority against an onslaught of ground and artillery attack. In some places, these assaults were supported by the Myanmar air force, which used its attack helicopters to intimidate KIA positions. The use of air power against the KIA was considered ‘ungentlemanly’ but when civilians were killed in these aerial raids the Kachin saw the international media pay more attention. Calls for restraint went unheeded as both sides struggled to consolidate their positions. The need to gain the upper hand before any further negotiations began appeared paramount. And then the real negotiations began. The Chinese government, which had watched this war rage along its border, sought to play a more consistent role in the resolution of the violence. According to Sun (2013: 2), at that time ‘Beijing [was] fully aware of the fact that the disintegration of the KIA is not in China’s interests. Rogue Kachin guerrillas would no longer be restrained and might potentially attack any target they identify’. This concern saw the Chinese begin to play a more active role in discussions, hosting some of the key meetings between the KIA/O and the Myanmar government. Other international actors, most notably the United Nations, the European Union and the United States, also worked towards securing a reasonable settlement. The Myanmar Peace Centre – a semi-independent conflict resolution agency funded by foreign donors and supported by the Myanmar government – was heavily involved. A tentative agreement was secured by the end of May 2013, and with it a new chance to explain the relationship between law and war in northern Myanmar. Explaining Law and War On all sides, inter-ethnic civil war in Myanmar is authorised by executive powers that have been subjected to little legal scrutiny. Under the 2008 Constitution there are only modest mechanisms for Myanmar’s legislatures to provide formal oversight of military activities, let alone active combat operations. The parallel structure established to quarantine military prerogatives from civilian control ensures that the Myanmar Army, in particular, is free to prosecute its national security mission independent of civilian oversight. Sensitivities about the military’s role – especially given its dominance since the coup of 1962 (see Farrelly 2013a) – have yet to be accompanied by any diminution of its crucial role in government decision making. There are four key aspects of the relationship between law and war in Myanmar that require analytical attention. First, the Myanmar military has excused itself from legal scrutiny and operates independent of notional oversight mechanisms. During the SLORC/SPDC period (1988– 2011), the government and the military were fused to the extent that all meaningful power was subject to military and executive fiat. Senior General Than Shwe, who rose to hold the supreme position in the former junta, built a system where the hierarchy of the armed forces was mimicked by a parallel system of political control. This meant that, for example, the Northern Commander of the Myanmar Army was also the Chairperson of the Kachin State Peace and Development Council. In this dual role the region’s senior military commander, usually a Brigadier or Major General, would hold significant political power. Since the reforms implemented by the Thein Sein government that began in 2011, many aspects of this former power structure have changed. Nonetheless, the military remains immune from the legislative, and even executive,

316 Nicholas Farrelly oversight that has emerged in other parts of government activity. Their prosecution of the war with the KIA is an example of the structure at this stage. The supreme National Security Council has replaced the SPDC as the premier forum for military leaders. President Thein Sein chairs the committee, yet its composition of serving and retired military officers means that the Commander in Chief of Defence Services has the weight of numbers and influence. Under these regulatory circumstances, there are few, if any, mechanisms for civilians to judge the internal decision-making processes of the army and its senior leadership. Second, the war between the KIA and the Myanmar Army was pursued in an area where independent observers have struggled to receive regular or verifiable information (see Map 2). Along the Chinese border, many battles are only ever reported by partisan Myanmar or Kachin media. Both sets of sources can prove beneficial, although they need to be judged with respect to their role in conveying accurate information. The Internet has offered readers other sources of information although they are usually subject to the same limitations as official media sources. Other groups, usually faced with resource constraints, have endeavoured to consolidate and evaluate the various information sources that exist. Yet, taken together, there is no outlet for a comprehensive understanding of the Kachin war and its implications. This raises problems for those hoping to understand the variety of combat engagements that have occurred and the legal basis under which individual commanders or military units operate. Third, the status of the KIA remains disputed by the Myanmar government. Alleged associates of the group have been prosecuted under the Unlawful Associations Act (1908) (see AHRC and ALRC 2013). The government still insists that the resolution of the conflict requires the KIA to accept legal restraints on its activities. This has an ironic resonance for some Kachin who consider that the KIA’s role as champion of Kachin sovereignty and rights means it is the only legitimate government they will recognise. Furthermore, for many international observers, the aura of ethnic self-determination and resistance associated with the KIA makes them attractive for political support. Foreigners who have sought to assist the KIA have joined a long line of those hoping to offer transnational backing in Myanmar’s messy wars (Farrelly 2013b). The predominately Christian orientation of the KIA has also garnered regular interest from international missionary organisations and humanitarian organisations motivated to assist a vulnerable Christian population. Yet the KIA remains controversial in many ways and has not developed universal support, even among its own people. Before the commencement of the recent war it was common to hear scathing criticism of the KIA and its leadership, and resentment of their economic and recruiting practices. For some Kachin there is little difference between them and the Myanmar side, although those sentiments have been diluted by the ferocity of the new war. Fourth, even during the years of ceasefire in Kachin areas, it is unclear whether the national law of Myanmar operated in a meaningful way in Kachin areas. The overlap of different political and economic interests in an unruly situation of inconsistent and tentative control has meant that legal recourse or sanctions have never been fully embraced. Map 3 offers an overview of how the area fits in economic terms in comparison to the rest of the country. In general, Kachin areas are governed more informally, and through the dominant institution of the Myanmar Army’s Northern Command. This means that under conditions of conflict there are few foundations for making explicitly legal determinations of what occurs. As the map indicates, there are much greater concentrations

War, Law, Politics 317 Map 2: Conflict in Myanmar, 2011–13

318 Nicholas Farrelly Map 3: Myanmar’s Military Economy

War, Law, Politics 319 of significant military interests, including economic ones, elsewhere in the country. In this context, the challenge is to determine on what basis law has any relationship to the overall pattern of political and social regulation. To be accused of breaking the law in Kachin areas is not necessarily a legal judgment, rather the political dimensions to any discussion of the law are paramount. In this context, the legality of war will remain a political determination, and one where histories of violence are fundamentally contested.

CONCLUSION

Since agreement for a tentative ceasefire between the Myanmar government and the Kachin was reached in May 2013 the two sides have moved into a new phase of negotiation, with further discussions occurring on a regular basis. This opportunity for a resumption of political dialogue has been welcomed by the international community as it seeks to influence the overall pattern of ethnic politics in Myanmar in what are widely considered to be more positive directions. There is, however, a lingering worry that without a resolution to conflict in Kachin areas a number of other ethnic conflicts will continue to fester. While violent incidents between the Myanmar and Kachin sides appear to have diminished there are still sporadic clashes, especially in areas where the demarcation of prevailing control is contested. To be clear, the agreement to halt offensive operations has not led to the end of all violence. The unstable situation that follows provides ready indications of the ways that legal and political agreements can interact with a long, and unresolved, history of conflict. The fundamental challenge for the Kachin and Myanmar sides has been to find structures for interaction that are mutually beneficial. At a moment when discussions of the ‘rule of law’ in Myanmar have reached a new level of intensity, the appropriate application of legal mechanisms to the Kachin conflict remains unclear, although there have been legal appeals made in this context (see Crouch, this volume). Myanmar’s civil wars have operated beyond either international or local legal norms, in a special category where violence and politics blur together. This category has proved amenable to long periods of ceasefire, supported by opportunities to make profit from situations of relative ‘peace’. The political calculus for the Myanmar authorities, where military officers remain integral to political processes, has proved simple. Instead of justifying their decisions on the basis of legal precedents they have sought to find political solutions, founded in the need for continuing conversation between the different sides. This process has led to long-term stalemates, followed by periods of intense, and often violent, re-negotiation. The recent war between the KIA/O and the Myanmar government has offered some further opportunities for analysts to consider the role of peacemaking in the Kachin context. In the Kachin example, the process of generating a permanent truce between the two sides has been exhausted by their duelling claims to overarching and incompatible legitimacy. For the Kachin leadership, renunciation of their most strongly-held positions is a difficult process. Slowly, and inconsistently, the Kachin have determined that secession is not a viable outcome and instead now habitually campaign for greater rights and autonomy within a federal union of Myanmar. Yet even that demand for a new legal settlement would require significant constitutional change and is considered unreasonable by many

320 Nicholas Farrelly on the Myanmar government side. Still, while reformists are in charge in Naypyitaw, the official rhetoric associated with the 2008 Constitution gives some hope to those who are inclined to consider federalism the only long-term solution to Myanmar’s interlocking ethnic woes. The relationship between law, war and politics has meant that the Myanmar government – in both its dictatorial and semi-democratic guises – finds negotiations a permanent state of affairs. Myanmar’s stated need to maintain the unity of the nation state has been complicated by the fact that neither the Kachin, nor any other single group, can easily be isolated from the variety of other ethnic claims against the state. What is perceived to be good for the Kachin will need to be made available for the Mon, the Shan and others. The recent war between the KIA/O and the Myanmar Army therefore showed the other ethnic groups that they must be prepared for confrontation if they cannot work inside the prevailing legal and constitutional framework. For Myanmar’s future peace, the challenge is to find mechanisms that will effectively depoliticise the ardently political claims made by all sides of these conflicts. The history of violent re-negotiation in Myanmar suggests that the character of these interactions defies management through conceivable legal frameworks. The Kachin example of war and ceasefire, negotiation and re-negotiation, provides ample evidence of the costs of political deal making. Legal commitments would at least provide greater certainty and the chance of objective adjudication. REFERENCES AHRC and ALRC (2013) Special Dossier: Cases under the Unlawful Associations Act 1908 Brought against People Accused of Contact with the Kachin Independence Army (Hong Kong, Asian Human Rights Commission and Asian Legal Resource Centre). Ball, Desmond and Farrelly, Nicholas (2013) ‘Eastern Burma: Long Wars without Exhaustion’ in Edward Aspinall, Robin Jeffrey and Anthony J Regan (eds), Diminishing Conflicts in Asia and the Pacific: Why Some Subside and Others Don’t (New York, NY, Routledge). Bo Hmu Gyi (2011) ‘On Burmese Army Combat Losses’ New Mandala, 7 October, http:// asiapacific.anu.edu.au/newmandala/2011/10/07/on-burmese-army-combat-losses/. Dean, Karin (2012) ‘Struggle over Space in Myanmar: Expanding State Territoriality after the Kachin Ceasefire’ in Michelle Ann Miller (ed), Autonomy and Armed Separatism in South and Southeast Asia (Singapore, Institute of Southeast Asian Studies). Diamond, Larry (2012) ‘The Need for a Political Pact’ 23 Journal of Democracy 138. Farrelly, Nicholas (2007) ‘Finding Space for Development: Kachin Politics on Burma’s Fringe’ (University of Oxford, Balliol College, Masters dissertation). —— (2010) ‘Spatial Control and Symbolic Politics at the Intersection of China, India and Burma’ (University of Oxford, Balliol College, PhD dissertation). —— (2011a) ‘Long Shadow of War in Kachin State’ New Mandala, 8 February, http://asiapacific. anu.edu.au/newmandala/2011/02/08/long-shadow-of-war-in-kachin-state. —— (2011b) ‘Myitkyina Attacked, War Continues’ New Mandala, 22 June, http://asiapacific.anu. edu.au/newmandala/2011/06/22/myitkyina-attacked-war-continues. —— (2011c) ‘One Observation, Ten Questions and Much to Ponder about the New Kachin War’ New Mandala, 6 October, http://asiapacific.anu.edu.au/newmandala/2011/10/06/oneobservation-ten-questions-and-much-to-ponder-about-the-new-kachin-war/. —— (2012a) ‘Ceasing Ceasefire? Kachin Politics beyond the Stalemates’ in Nick Cheesman, Monique Skidmore and Trevor Wilson (eds), Myanmar’s Transition Openings, Obstacles and Opportunities (Singapore, Institute of Southeast Asian Studies).

War, Law, Politics 321 —— (2012b) ‘Shining Light on Kachin War Coverage’ New Mandala, 26 April, http://asiapacific. anu.edu.au/newmandala/2012/04/26/shining-light-on-kachin-war-coverage. —— (2013a) ‘Discipline without Democracy: Military Dominance in Post-Colonial Burma’ 67 Australian Journal of International Affairs 312. —— (2013b) ‘Transnational Flows of Military Talent: The Contrasting Experiences of Burma and Thailand since the 1940s’ in Nir Arielli and Bruce Collins (eds), Transnational Soldiers: Foreign Military Enlistment in the Modern Era (Basingstoke, Palgrave Macmillan). Freston, Paul (2004) Evangelicals and Politics in Asia, Africa and Latin America (Cambridge, Cambridge University Press). Goswami, Namrata (2012) ‘Making Sense of Insurgencies in North-East India’ in Sagarika Dutt and Alok Bansal (eds), South Asian Security: 21st Century Discourses (Abingdon, Routledge). Gravers, Mikael (1999) Nationalism as Political Paranoia in Burma: An Essay on the Historical Practice of Power (London, Curzon Press). Grundy-Warr, Carl and Dean, Karin (2003) ‘“Kachin” and “Karenni” Spaces in the Troubled Borderlands of Burma’ in E Berg (ed), Routing Borders Between Territories, Discourses and Practices (Aldershot, Ashgate Publishing). Haseman, John B (1988) ‘Burma in 1987: Change in the Air?’ 28 Asian Survey 223. Henry, Nicholas (2011) ‘Civil Society amid Civil War: Political Violence and Non-violence in the Burmese Democracy Movement’ 25 Global Society 97. Hla Min (1998) Myanma Naingnganye Achayane hnit Dethatwin Akhankhanada [The political situation of Myanmar and its role in the region] (Yangon, Government of the Union of Myanmar). Holliday, Ian (2013) ‘Myanmar in 2012: Toward a Normal State’ 53 Asian Survey 93. Holmes, Steve (2005) Jadeite Objets D’Art: The Mifflin Smith Collection (np, Rio Grande Trust). Hpan Ja (2001) Tsinyam hkrum hypenla [The soldiers who met disaster]. Kunming. [In Jinghpaw]. Hpauwung Tang Gun and Chyauchyi Naw Ja (2003) Lai Sai Tsa Ban Laman Na Jiwa Ni A Arawang Ningsang [The honour of our ancestors in the last century]. Myitkyina. [In Jinghpaw]. Johnson, Rob (2005) A Region in Turmoil: South Asian Conflicts since 1947 (London, Reaktion Books). Karan, Pradyumna Prasad (2004) The Non-Western World: Environment, Development and Human Rights (New York, NY, Routledge). KNG (2011) ‘KIA Attack near Myitkyina Kills over a Dozen Burmese Soldiers’ Kachin New Group, 14 October, www.kachinnews.com/news/2099-kia-attack-near-myitkyina-kills-over-a-dozenburmese-soldiers.html. Kyi Phyo Wai (2012) ‘The Role of Burmese and Kachin Civil Society in the Suspension of the Myitsone Dam’ in Land, Water, Rights: Voices from the Tibetan Plateau to the Mekong Delta (Washington, DC, Earth Rights International). Lahpai No Seng (1988) Amyu Masha Ningbo L. No Seng hte Shi A Gasat Share Manang Ni [The tribe of the great L No Seng, his battles and heroic allies]. Myitkyina. [In Jinghpaw]. Lambrecht, Curtis W (2004) ‘Oxymoronic Development: The Military as Benefactor in the Border Regions of Burma’ in Christopher R Duncan (ed), Civilizing the Margins: Southeast Asian Government Policies for the Development of Minorities (Ithaca, NY, Cornell University Press). Lasi Bawk Wa (2001) Jinghpaw Wunpawng Sha Ni hte Daini Na Sut Masa [The Kachin and today’s economic policies] (Myitkyina, YMCA) [In Jinghpaw]. Lawi Weng (2012) ‘Kachin Assassin Walks Free’ The Irrawaddy, 19 September, www.irrawaddy. org/z_kachin/kachin-assassin-walks-free.html. Lintner, Bertil (1994) Burma in Revolt: Opium and Insurgency since 1948 (Boulder, CO, Westview Press). MacDougall, Hugh C and Wiant, Jon A (1986) ‘Burma in 1985: Consolidation Triumphs over Innovation’ 26 Asian Survey 186.

322 Nicholas Farrelly MRTV3 (2012) ‘42 KIA Members Exchange Arms for Peace’ Myanmar TV Three, 20 April, www. mrtv3.net.mm/open9/210412ex.html. Myihtoi Gam Awng (2000) Myihtoi Naw A Ahtik Labau [The biography of Subedar Major Myihtoi Naw] Myitkyina. [In Jinghpaw]. Naw Ja (ed) (2004) Hkik Hkam Gungdam Lam Hpe Hkan Tam [In quest of greatness]. (Myitkyina, CC Naw Ja) [In Jinghpaw]. Nilsen, Marte (2013) ‘Will Democracy Bring Peace to Myanmar?’ 16 International Area Studies Review 115. Paddock, Alfred H (2002) U.S. Army Special Warfare, Its Origins: Psychological and Unconventional Warfare, 1941–1952 (Honolulu, HI, University Press of the Pacific). Rajah, Ananda (1998) ‘Ethnicity and Civil War in Burma: Where is the Rationality?’ in Robert I Rothberg (ed), Burma: Prospects for a Democratic Future (Washington, DC, World Peace Foundation). Sadan, Mandy (2010) ‘Syphilis and the Kachin Regeneration Campaign, 1937–1938’ 14 Journal of Burma Studies 115. Scherrer, Christian P (2003) Ethnicity, Nationalism and Violence: Conflict Management, Human Rights, and Multilateral Regimes (Aldershot, Ashgate Publishing). Seekins, Donald M (1997) ‘Burma–China Relations: Playing with Fire’ 37 Asian Survey 525. Sik, Ko Swan (1995) Asian Yearbook of International Law (Leiden, Martinus Nijhoff Publishers). Smith, Martin (2006) ‘Ethnic Participation and National Reconciliation in Myanmar: Challenges in a Transitional Landscape’ in Trevor Wilson (ed), Myanmar’s Long Road to National Reconciliation (Singapore, Institute for Southeast Asian Studies). South, Ashley (2003) Mon Nationalism and Civil War in Burma: The Golden Sheldrake (London, RoutledgeCurzon). Sun, Yun (2013) ‘China’s Intervention in the Myanmar-Kachin Peace Talks’ 200 Asia Pacific Bulletin 1. Trager, Frank N (1969) ‘Burma: 1968 – A New Beginning?’ 9 Asian Survey 104. Tucker, Shelby (2001) Burma: The Curse of Independence (London, Pluto Press). Withers, Kristine (2011) ‘Detachment 101: A Microcosm of the Evolutionary Nature of Warfare’ (Kansas State University, Masters dissertation). Zedric, Lance Q and Dilley, Michael F (1996) Elite Warriors: 300 Years of America’s Best Fighting Troops (Ventura, Pathfinder Publishing).

17 Civilian Protection and the Politics of Humanitarian Action in the Kachin Conflict ALISTAIR DB COOK*

I

N JUNE 2011, after the ceasefire agreement between the Kachin Independence Army (KIA) and the Tatmadaw (Myanmar Army) dissolved, violence escalated for the first time in 17 years. This led to the forced displacement of civilians in Kachin state, who fled from the violence into Northern Shan state and along the China– Myanmar border area. According to KIA sources, 1,640 battles were recorded from 19 June 2011, when the conflict erupted, to 19 July 2012, leading to an estimated 70,000 internally displaced persons (IDPs) (Naing 2012). As the first wave of civilians fled their homes, assisted by civil society networks, they found refuge in church compounds and with family members across the state and along its borders. During the first few months, civil society groups or local non-governmental organisations (LNGOs), in the form of church congregations and local foundations, provided much-needed basic humanitarian assistance (shelter, food, water, medical supplies). As the conflict continued over the subsequent 18 months there were, however, several further waves of displacement, and LNGO humanitarian assistance was stretched to its limit. During this time, international awareness of what was happening grew and humanitarian organisations began to mobilise to respond to the crisis. However, recent attempts to provide sustained and adequate humanitarian assistance to those forcibly displaced have, at best, been delayed and, at worst, prevented by perpetrators of the conflict. While the Myanmar government officially invited international actors to provide humanitarian assistance alongside established local actors, the local reality is quite different, for a host of reasons. The political negotiations that have taken place between local, national and international actors concerning the delivery of humanitarian assistance have proved crucial. This chapter focuses on the human consequences of the Kachin conflict. It assesses the social and political challenges of delivering humanitarian assistance to civilians forcibly displaced, including the relevance of international norms on humanitarian assistance, and the question of whether an incremental or functional approach is more appropriate.

* This chapter draws, in part, from fieldwork research and interviews carried out in Yangon and Myitkyina from 18 to 28 January 2013. All interviewees remain anonymous.

324 Alistair DB Cook

THE KACHIN CONFLICT AND INTERNALLY DISPLACED PERSONS (IDPS)

Media reports of political and economic reforms in Myanmar have been overwhelmingly positive. There remain serious concerns in relation to the sustainability of the reform process, particularly away from the capital, Naypyidaw, and the population centres of Yangon and Mandalay. While many international reports carry positive stories, the response from local communities far from the major centres is different. In Kachin State, people recognise the positive spin of these stories but often reflect that the reforms have not yet reached them – and some are sceptical that they will. The current conflict in Kachin State is a primary example of the significant challenges facing the current reform period and the future of human security in Myanmar more generally. In June 2011, the 17-year-old ceasefire between the KIA and the Tatmadaw broke down, with a return to fighting and civilians fleeing for their lives. Over the past two years, access to these IDPs has been stymied by restrictions on the movement of humanitarian assistance into the KIA-controlled territory where the majority of the displaced are located. After significant delays, a United Nations humanitarian assistance convoy arrived in Kachin state in mid-February 2013. While many LNGOs have found ways to deliver some assistance, the basic needs of this population at risk have still not been met. On 8 September 2013 the Union Peace-making Work Committee (Myanmar government) and the United Nationalities Federation Council met for the second preliminary meeting for ‘political dialogue’ in Chiang Mai, Thailand. At the peace talks, the issue of humanitarian assistance was addressed but, with military officials absent, questions remain as to whether word will be met with deed. A subsequent aid convoy followed in June, a fortnight after a seven-point peace plan was signed by the Myanmar government and the KIA, but it did not establish continuous access to the IDP camps in those areas. Indeed, many local Kachin warned the Kachin Independence Organisation (KIO) leadership to be careful in negotiations. They feel cheated by the 1994 oral ceasefire, which was agreed behind closed doors. The KIA spokesman reported to Associated Press that the seven-point agreement reached with the Myanmar government in Myitkyina in June 2013, by which both sides pledged to ease military tensions and work towards a future agreement, was fragile. This was because the KIA was aware of Myanmar troop redeployments, reinforcements and the replenishing of ammunition on the front lines, which undermined the ceasefire. Since the signing of the agreement, there have been several clashes, illustrating that there is still widespread instability in Kachin State, even after the ceasefire agreement (Associated Press 2013). The UN’s Office for the Coordination of Humanitarian Affairs (OCHA) estimates that there are 85,600 IDPs in Kachin State, with 35,000 sheltering in governmentcontrolled camps and an additional 50,600 living in camps located in KIO territory. At the end of June 2013 there were a further 4,400 displaced living in government-controlled camps in Kachin-inhabited parts of northern Shan State (OCHA 2013). During the conflict, an estimated 5,000 to 10,000 refugees fled to China, although an estimated 5,000 of these were forcibly repatriated in late 2012 (Nickell 2012). There also remain many people out of view, most of whom are not resident in camps due to fear of reprisals or forced repatriation. Instead, they stay with family, friends or remain in hiding, with the result that displacement figures are under-reported.

Civilian Protection and the Politics of Humanitarian Action 325 Despite the ceasefire order of 18 January, issued by President Thein Sein to the military in the La Ja Yang area of Kachin State near the border with China, fighting continued. There have, in fact, been several further attempts at ceasefires, none of which brought an end to the fighting. While President Thein Sein garners favourable international opinion, his rebuttal of the US Embassy’s statement of deep concern about the war in Kachin State shows the sensitive nature of the situation for the Myanmar government (US State Department 2013). The conflict, in fact, reveals that if the President issues a ceasefire it is unclear what, if any, control he has over Tatmadaw incursions in Kachin State. Either way, what is clear is that the presidential word is not necessarily reflective of practice on the ground. For example, after the announcement of a ceasefire between the KIA and the Myanmar government, scheduled to start on 19 January 2013, helicopters were seen flying over Myitkyina on the following Wednesday, 23 January, headed to the front line. Local Kachin used mobile phones to communicate with the front line, and later heard air attacks had taken place. An estimated 130,000 people have fled the fighting, with many finding refuge in church compounds,1 IDP camps or with family members. Others have found refuge in Northern Shan State or across the border in China. Many of those in China were later repatriated by local police authorities, who tore down their shelters to force them back into the conflict zone. Peaceful protests in Yunnan province in China in January 2013 raised awareness and understanding of the conflict in China (Echo 2013), and this has resulted in a slightly more accommodating policy for those fleeing the fighting to seek short-term ‘cover’. Many of those displaced are, however, still reluctant to enter China for fear of being forced back, which happens periodically (Edwards 2012). Those who have made the IDP camps their refuge are in dire need of assistance, with a civil society activist noting recently that most IDP camps do not meet the basic Sphere standards, since 1997 the international gauge of humanitarian assistance. One issue is the location of the shelters, which have been built in close proximity to one another, increasing the potential spread of disease. Since August 2012 IDP camps have had to deal with widespread diarrhoea and this remains a major challenge a year later. While international assistance has started to arrive in some government-controlled areas, barriers to distribution remain as a result of the many army checkpoints throughout Kachin State, which monitor who goes in and out. Since July 2012 the government has largely prevented international assistance in KIA-controlled areas, home to over 50,000 civilians (UNHCR 2013a). As the situation in Kachin State remains desperate for so many people directly affected by the war, civilians self-organise through LNGOs. The current challenges faced by international and local actors to deploy humanitarian assistance to IDPs across Kachin and Northern Shan States illustrate the need to better understand the opportunities and challenges afoot in a reform process marked by multiple personalities, informal political relationships, and a complex web of interactions. While the international media focuses on presidential statements as representative of a whole system, policy professionals and academics need to focus on the multifaceted nature of the reform process to better understand its speed, direction and reach.

1 While there has not been a reliable census in Myanmar for over half a century, the Kachin population in Myanmar is an estimated one million people, with an estimated 60 – 90 per cent identifying as Christian (Minority Rights Group International 2005).

326 Alistair DB Cook

HUMANITARIAN ASSISTANCE, NORMS AND NEGOTIATIONS

IDP camps have been established in both government- and non-government-controlled areas in Kachin, with approximately two-thirds under KIA control along the Chinese border. The reason for this is that neighbouring states, such as China, do not want to host refugees and be drawn into the conflict. Refugee camps are often viewed by governments as both a political and security threat (Black 1998: 3). As China is a non-signatory to the Refugee Convention and a recipient country in the current Kachin conflict, there is concern felt by the Beijing leadership that a spill-over may cause unrest in its own ethnic minority areas of Yunnan province, home to the Jingpo – one of the six ethnic sub-groups (Jinghpaw, Lawngwaw, Lashi, Zaiwa, Rawang, Lisu) that comprise the Kachin. Beijing has traditionally had an official policy of non-interference in the domestic affairs of other states (Chung 2009) but local communities see China as playing the KIA and Tatmadaw off against one another to leverage access to natural resources in Kachin State. As one local civil society leader explained, ‘China is the husband of the Burmese military’. In the situation where an IDP camp remains beyond Myanmar government control, there are significant constraints on the delivery of humanitarian assistance from INGOs (international non-governmental organisations) and UN agencies, and a greater reliance on local networks and LNGOs to distribute the assistance. While those displaced in the border areas are reliant on assistance distributed by LNGOs, these organisations are faced with funding restrictions that, in turn, limit the reach and sustainability of their assistance. In mid-August 2012 an estimated 5,000 ethnic Kachins returned home after fleeing across the Chinese border into Yunnan province in mid-June as fighting broke out between the KIA and Myanmar Army (Edwards 2012). Despite multiple requests, the United Nations High Commissioner for Refugees (UNHCR) was unable to gain access to the displaced population. In mid-August 2012 reports began to surface that the displaced were being sent back to Myanmar. More than 3,400 returnees are now staying in IDP camps in KIA-controlled territory. The displaced recalled how local Chinese government officials demolished their shelters, and plain-clothes police officers put them on trucks, loaded their belongings and drove them to the border crossing. Local groups and partners expect more refugees to be repatriated from China before a resolution is negotiated (Edwards 2012). As a result, there is a pressing need to investigate the actors involved in humanitarian assistance to address the needs of the displaced population in the short term. A significant hurdle to protection and aid distribution is the insistence of the Myanmar government that it provide aid alongside local and international actors. This occurs to the disbelief of many Kachin, who see the government as the aggressor. In complex political emergencies such as these, there are cases where NGOs forego their neutrality and work with warring factions to ensure that relief reaches the refugees and IDPs (White and Cliffe 2000: 324). Another concern is camp management, which, if controlled either directly or indirectly by a warring party, can determine both admission to the camps and who receives assistance (Chong 2002: 970). There is a debate between fieldworkers and policymakers over the issue of neutrality, with fieldworkers principally concerned to reach needy forced migrant populations but policymakers being wary of de

Civilian Protection and the Politics of Humanitarian Action 327 facto recognition of a warring party. UNHCR reforms carried out in the 1990s 2 ensured that greater decision-making power was devolved to the field office level. The officials working at the field office level engage the agency in refugee and refugee-like situations and have been criticised for engaging in areas where there is a limited mandate, such as in repatriation efforts (Ogata 2005). UNHCR and Displaced Persons UNHCR aid convoys to Kachin state have been successful but demands continue to be made on the government to provide unhindered access, illustrating the piecemeal nature of the agreements. The UNHCR took part in the 17–21 February 2013 convoy to the Hpakant area of Kachin State after the Myanmar government granted access. It was the first time since January 2012 that United Nations humanitarian workers were able to reach IDP camps in this area, which experienced a period of intense fighting between September and December 2012 (UNHCR 2013b). As the Myanmar government does not allow unhindered access to KIA-controlled IDP camps, except recently for some INGO convoys, LNGOs that have maintained cross-conflict zone access have operated with only very limited resources available in the areas where most of the displaced are located (KBC et al 2013: 5; Bacchin 2012: 7). It is important to recognise what forced migrants do when constraints on aid delivery are in place. Their primary goal is survival, whether or not there is international involvement or community-generated relief (White and Cliffe 2000: 325). Since the ceasefire breakdown in 2011, a large build-up of government forces around Myitkyina sealed the KIA-controlled areas, preventing UN and other INGOs from unhindered access to IDPs in those areas. In response, LNGOs like the Kachin Baptist Convention (KBC) transformed themselves into mass emergency relief providers (Pattison 2012: 66). Many IDPs are essentially trapped inside the IDP camps, either because their homes have been destroyed or because they fear targeting by the Myanmar Army, which sometimes assumes that all Kachin are affiliated with the KIA3 (Pattison 2012: 67). There are several LNGOs active in camps such as Shalom Foundation, which have emerged since the outbreak of violence to fill protection and assistance gaps. They continue to provide relief within their means while other NGOs and UN agencies struggle to gain access or provide relief to displaced people. If the forced migrants need food, water and shelter assistance they will accept it from the KIA regardless of the reaction this may provoke from the Myanmar government. According to the Refugee Convention, parties to a conflict, both state and non-state, should distinguish between civilians – persons who do not take part in hostilities – and combatants – those who do – at all times, and respect the humanitarian nature of camps, settlements and other IDP-hosting areas. In other words, the civilian population should not be the object of attack, which must be directed solely against military targets. Most Southeast Asian states are not signatories to the Refugee Convention, however, so the 2 In the 1990s, the UNHCR went through a series of reforms led by Sadoko Ogata, which saw the agency more than double in size, make the link between refugees and international security and assist IDPs. Internally, the UNHCR saw a shift from legal professionals determining refugee status to assisting displaced people. 3 The KIA is considered an unlawful organisation in Myanmar. Persons associated with the organisation face potential incarceration.

328 Alistair DB Cook UNHCR negotiates access to the displaced on a case-by-case basis, and the resulting agreements are context specific. While a political solution is not found in the delivery of aid, there is a trend for aid delivery agreements to incorporate peace building as part of their mission (Chong 2002: 967). This, in fact, defines the UNHCR’s informal approach in Southeast Asia. The development of this modus operandi responds to the Association of Southeast Asian Nations (ASEAN) norm of non-interference and informal diplomacy, and is an effort to ensure the UNHCR remains relevant. However, the current peace-building process in the Kachin conflict does not integrate humanitarian issues or the human consequences of the conflict but rather focuses on simply halting fighting (KBC et al 2013: 5). This demonstrates that without proper consultation among the stakeholders there can be disastrous consequences for forced migrants. It highlights that even when there is a structure to coordinate, governments are not bound by it and can act independently. In Myanmar, the absence of fair and independent institutional and legal mechanisms makes advocacy and monitoring all the more important. Some scholars suggest that the primary mission of the UNHCR is to protect forced migrants until the receiving state can take over, and that the UNHCR should ensure international obligations are met (Boaz and Schoenberg 2002: 200). Neither of these functions has much weight in the Kachin conflict, however, as the government, which holds the primary responsibility, is a party to the conflict. As a UN agency, the UNHCR cannot act until it has a request from the recipient government to assist or a UN Security Council Resolution authorising entry. While the development of the ‘Responsibility to Protect’4 approach illustrates a significant attempt to formalise international responses to situations of armed conflict, it remains inconsistently applied by the United Nations Security Council.5 As a result, the role of the UNHCR is more often simply to encourage states to adhere to standards closer to international refugee norms and sign Memoranda of Understanding that outline the mandate the recipient state is willing to give the UNHCR in a particular case. Moreover, in many conflicts involving internal displacement the state itself is contested and the recognised government is a warring party in an internal conflict, as in the Kachin case. Relieving Human Insecurity The constraints on the delivery of relief have led to insecurity. Relief agencies focus on empowering or supporting community groups and the local government to implement and deliver relief packages. This allows a degree of political manoeuvring. In the longer term, there is no better alternative to a political solution than the establishment of a legitimate government and a peace settlement. In its absence, aid agencies operating in the field with many different groups and organisations can ultimately mean differing levels of assistance and protection. In the case of the Kachin conflict, there are three broad categories of IDPs: those displaced within Kachin State in areas under central government control; those in KIA-controlled areas; and those who have fled across the border into China. As a result, 4 The Responsibility to Protect is included in paras 138 and 139 of the 2005 World Outcome Document. In April 2006 the UN Security Council reaffirmed the provisions of paras 138 and 139 in resolution S/RES/1674. 5 In 2013 Saudi Arabia became the first state to be elected to the UN Security Council but refuse to take its seat. It did so in protest at the failure of the UN Security Council to resolve conflicts in the Middle East.

Civilian Protection and the Politics of Humanitarian Action 329 UN agencies adopt non-traditional strategies or issue-specific approaches in attempts to reach the populations of concern and to remain relevant, whether performing their roles independently or as partners. Overall, the lack of a long-term commitment to providing for, and protecting, those forcibly displaced means that although the majority of state responses are only temporary solutions they are often in place for extended periods. In fact, the majority of the global refugee population of 9.7 million refugees have been displaced for more than five years (Collyer 2005: 251). This situation is now commonly referred to as the ‘warehousing’ of forced migrants (Smith 2004; Loescher and Milner 2005) but was known in the 1980s as the ‘Palestinization’ of refugees. Other ethnic nationalities in Myanmar have experienced such warehousing along the Thailand–Myanmar border. The Kachin conflict experienced a 17-year ceasefire from 1994 to 2011, when displacement became more development-induced than conflict-induced (Cook 2011: 83–88). The ceasefire breakdown and escalation of violence in 2011 caused displacement in Kachin State to quickly revert to conflict-induced displacement, but with the root causes of conflict inseparable from but not solely the result of, development activities. The influence the UNHCR can have in such situations depends on the stakeholders involved. Although the UNHCR is mandated as the UN agency for refugees, it is dependent on donor funding and access granted by the host state. A shift in international perception of Myanmar’s domestic political reforms and the subsequent removal of sanctions by Western states has reportedly led to a decrease in funding for LNGOs and assistance along the Myanmar–Thailand border (Kang 2012: 356). Unfortunately, this has not translated into states meeting the needs of those within Myanmar and humanitarian assistance faces a significant financial shortfall. In June 2013 the United Nations raised only 18 per cent or US$14.5m of the US$50.9m needed, with the UN Relief Coordinator allocating US$3m from the Central Emergency Fund to cover the immediate budget shortfall (UN News Centre 2013). As for access to the displaced, UN agencies have so far sent 11 aid convoys to the displaced in KIA-controlled areas since the current conflict began in June 2011. Restrictions remain around access, however, as a result of central government insistence that government supplies and assistance accompany the convoys. UNHCR and Southeast Asia The involvement of the UNHCR in Southeast Asia through ad hoc and ‘soft law’ agreements with individual governments does not sit well with the notion of it being an enhanced UN agency with a broader mandate. This illustrates well the limitations to implementing international law in the region. Even those few Southeast Asian states that are signatories to the Refugee Convention – Philippines, Cambodia and East Timor – have limited institutional capacity to adhere to it. This ensures much of the UNHCR involvement in these states is still on an ad hoc, case-by-case basis. While persuading states to formally accede to the Refugee Convention is desirable, it is very difficult in the current political climate in Myanmar and in Southeast Asia more generally. Lacking the domestic or international legal protections of the 1951 Refugee Convention or its subsequent protocol, IDPs in Kachin State are in an extremely vulnerable position. They are, for example, subjected to arbitrary measures, lack of accountability and

330 Alistair DB Cook institutional protections (Pattison 2012: 67). So long as basic legal protections remain absent, the threat and fear of insecurity will continue to permeate the lives of Kachin civilians, exposed as they are to the brutal face of a conflict situation. IDPs are the responsibility of the recognised government of the state in which they are located and in Myanmar they will be inextricably linked to the historical legacy of previous regimes, which had little sympathy for their plight. As the status of IDPs is primarily a domestic concern, the international community can only support the national government to fulfil its responsibilities (Deng and McNamara 2001: 24). This assistance can be both formal – through direct government assistance – or informal – through civil society organisations (CSOs) and NGOs developing ‘advocacy coalition networks’.6 The Office of the High Commissioner of Human Rights (OHCHR) focuses on internal politics and, as Francis Deng’s work shows, IDPs fall within the OHCHR mandate (Weiss 1999: 369). The problem arises that the OHCHR has the smallest UN budget (c.3 per cent of the overall UN budget) and does not have the capacity to fulfil the assistance needs of the IDPs (Weiss 1999: 369). Further, refocusing the displacement debate around IDPs centres the issue on containment within a country or region, a policy increasingly favoured by developed Western states (Barutciski 1998: 14). The interconnectedness between human rights development and the application of the Refugee Convention demonstrates how much refugee assistance and protection relies on negotiation in the absence of enforceable international law. If the displacement debate did focus on combining refugees and IDPs to offer equal assistance and protection, then endorsing these would prevent those displaced from becoming cross-border refugees (Barutciski 1998: 14). There would also be significant opposition from those states with significant IDP populations. These states would argue that providing protection and assistance amounted to interference in domestic politics and thus violated traditional sovereignty norms. In Southeast Asia, governments fear loss of sovereignty will override their jurisdiction, threaten territorial control and undermine state consolidation. Greater focus is therefore given to developing stronger interpersonal relationships with governments around the region to gain access to populations of concern, rather than framing forced migration in terms of the inability of states to provide security, respond to public opinion and meet international obligations, losing accountability and therefore sovereignty. Indeed, the poor human rights situation in Myanmar culminated in the establishment of a special envoy to the UN Secretary-General on human rights in Myanmar. While discussions over an annual resolution on the human rights situation in Myanmar led to the proposal that the OHCHR establish a country office to better coordinate its dealings with the government, this is yet to eventuate (McLaughlin 2013). In addition, the positioning of human rights within the Myanmar context remains fraught with contradictions and has remained an international concern, as was illustrated by the establishment of a UN Special Rapporteur on the situation of Human Rights in Myanmar in 1992. In August 2013 the fourth UN Special Rapporteur, Tomas Qjea Quintana, was prevented by Myanmar authorities from travelling to Laiza from Myitkyina in Kachin State. ‘Laiza was not included in the officially approved itinerary of his visit, so Quintana was not allowed to go there,’ reported Myanmar Presidential 6 For further discussion and explanation of advocacy coalition networks, see Sabatier and Jenkins-Smith (1993).

Civilian Protection and the Politics of Humanitarian Action 331 spokesman Ye Htut (Wynn 2013). This again illustrates the constraints the various organs of the United Nations often experience when seeking to investigate breaches of international law and gain access to populations of concern. Above all, INGOs and UN agencies remain at the whim of recipient country governments. If the government is engaged in internal conflict with other armed groups, that decreases the likelihood of unhindered access and increases the presence of piecemeal access to populations of concern for INGOs. This, in turn, increases the vulnerability of the population of concern and leads to greater reliance on community-generated assistance in the absence of international funding. In the next section I assess these dynamics in the context of the Kachin conflict.

DYNAMICS OF DISPLACEMENT AND ASSISTANCE

The challenges for the adequate provision of humanitarian assistance to civilians directly affected by the Kachin conflict are many and varied. This section delves into the threats faced by the displaced population, those working with the displaced, and cooperation between local and international organisations. It is, first, important to briefly sketch the main factors driving the Kachin conflict, namely attempts to secure natural resource exploitation and the non-enforcement of the 1947 Panglong Agreement. The direction of transportation systems corresponds to the location of natural resources. For example, the Tatmadaw have bases in Namtu, Nam Kham, Kyaukme, Mantong, Naungcho and Lashio to secure the oil and gas pipeline route and protect pipeline workers. As a result, there are multiple reports of land confiscation and forced displacement along the pipeline route, apparently to ensure government control. In December 2011, for example, 500 people from villages in the Shan–Kachin border area fled to Nam Kham, where they stayed in a local monastery and church, while others stayed with relatives. Local donors and monks assisted the displaced but faced difficulties, particularly during the cold season. As a result many moved to China to work or returned home to their villages. Subsequent fighting broke out in January 2012 between Mantong, Nam Kham and the Kachin border, forcing civilians to flee the conflict into neighbouring villages or across the border into China (TSYO 2012: 4). Those displaced as a result of this conflict were reliant on community-driven assistance and protection, which negotiated access to the areas of greatest need and delivered life-saving humanitarian assistance (IRIN 2012). International attempts to access those displaced were denied. Humanitarian space has been shrinking to the detriment of those directly affected by conflict. Some refute this claim and argue that the humanitarian space is not shrinking per se, but rather that it is only shrinking for international NGOs, while local NGOs navigate a complex political and military environment to ensure consistent delivery of assistance to, and protection of, IDPs with both warring parties. For these local actors, agency space . . . has never been an issue. The main impediment to aid delivery has been a lack of financial and technical support from international agencies. (Jaquet and O’Loughlin 2012)

In a recent joint statement, LNGOs confirmed this by noting they were the only ones to access IDPs, save for infrequent INGO high-profile convoys assisting the displaced, particularly in KIA-controlled and conflict-intense areas. The LNGOs achieve this through

332 Alistair DB Cook the development of strong relationships and processes that are task- and projectoriented (BRIDGE et al 2013). That said, there remain challenges for LNGOs arising from the formal requirement that they officially register with the Myanmar government, and a sense that INGOs’ capacity overshadows them (KBC et al 2013). While the Chinese authorities remain split between their familial connections with the Kachin (Jingpaw) and Beijing’s official policy of non-intervention, low-level intervention occurs informally. Many of those not escorted back over the Myanmar border remain on the edge of Diantan, where an estimated 10,000 refugees rent cheap accommodation. Like Myanmar, China bars INGOs access to the displaced and denies reports it forcibly repatriates Kachin. A Chinese Christian activist said the authorities probably know about his humanitarian work with the Kachin but turn a blind eye. The activist also pointed out that the government built four refugee camps around Nabang but all remain empty, showing a mixed response from China (Economist, 3 February 2013). The local government of Dehong Dai and Jingpo Autonomous Prefecture, which is responsible for the four refugee camps, have announced that they have prepared emergency supplies there (Qiu et al 2013). Although several rounds of peace negotiations have taken place between the KIO and Myanmar government, there remain many unresolved and fundamental issues. Humanitarian assistance and civilian protection needs must be continually assessed. The UNDP carried out a needs assessment for income generation and livelihood activities in Kachin State, and subsequently supported programmes for small-scale livestock rearing, vegetable growing, small business establishment and vocational training. The vocational training includes snack making, food preservation, knitting, and bag and basket weaving, all available across 48 camps in Kachin State (UNDP 2012). Likewise, a consortium of Oxfam Novib, Refugee Relief Committee and LNGOs carried out their own needs assessment of those displaced (Bacchin 2012), while the KBC coordinated the joint strategy for displacement (2013–15). Through the development and research of the joint strategy the KBC-led team found that students from KIA-controlled areas were not able to access education (grade 11) from 2012 until early 2013, and there has been a dramatic increase in the number of children dropping out of school (KBC et al 2013: 6). Another dynamic of humanitarian assistance is the personal security of those delivering assistance – the humanitarians. The very nature of their work is that it occurs in high-risk areas, as part of an effort to lower risk to civilians affected by the conflict. Threats and attacks on humanitarians worldwide include attacks by territorial state authorities or their surrogates; armed forces of neighbouring or other state authorities; rebel groups; a combination of these; and groups of dubious or camouflaged origin (Fontaine 2004: 170–71). In the Kachin conflict the most pronounced threat comes in the form of arbitrary indefinite detention, detention under the Unlawful Associations Act and human rights abuses. Given the current limitations on INGOs delivering humanitarian assistance, these risks are more likely to affect LNGOs and local staff. Consequently, operating in such a scenario yields higher stress levels, which are becoming evident, affecting the health and work capacity of LNGO members (KBC et al 2013: 5). LNGOs also work with China-based Kachin businessmen to procure supplies, and then store them until they are able to distribute them to the IDPs. Some of the LNGO workers hide in the forest until nightfall, or until Chinese border guards have left their posts, before crossing into KIO-controlled territory via China. Unfortunately, many international donors and aid agencies are unable to donate

Civilian Protection and the Politics of Humanitarian Action 333 to such groups, as they have limited capacity, lack accountability or are insufficiently transparent (Gopallawa 2013). While there are restrictions surrounding INGOs and UN agency access to the majority of the displaced, where there is access these actors do collaborate with LNGOs (see Table 17.1). Given the likely long duration of the current conflict before a sustainable peace is achieved, these relationships will be the seeds for building trust between the actors and developing stronger links with the community, enabling LNGOs to access the more remote and KIA-controlled IDPs. Table 17.1: Examples of Assistance Partnerships in Kachin State Sector

Local NGO

Education and training

International NGO

Location

Challenges

Kachin Baptist United Convention Nations Children’s Fund (UNICEF)

Bhamo, Mai Ja Yang

Essential resources in areas outside government control including provision of teachers, temporary learning spaces and educational materials.

Foodnutrition

Kachin Baptist World Food Programme Convention, Karuna Myanmar Social Service

Rations reached approx 32,000 people in Kachin and Northern Shan States. Local partners provide food and cash assistance to IDPs beyond government control.

Newly displaced persons across Kachin.

Shelter

Karuna Myanmar Social Service, Shalom

UNHCR, Danish Refugee Council

Bhamo, Mansi (UNHCR, local); beyond government control (Danish Refugee Council, local)

Emerging needs for cold season and newly displaced persons.

WASH

Solidarities International, CESVI

UNICEF

Livelihood

Social Vision Services, Kachin Baptist Association, Social Welfare Department

United Nations Development Programme

Open defecation, inadequate water, sanitation and hygiene (WASH) facilities and limited access to safe drinking water, particularly in areas beyond government control. Rebuilding lives and liveliPuta-o, hoods on return home. Machanbaw, Tanai, Myitkyina, Waingmaw, Moe Mauk and Mansi

Sources: Compiled from MHB (2013); UNDP (2012).

334 Alistair DB Cook Such is the unreliable nature of INGO and UN access to the displaced in KIA-controlled areas that building trusting relationships with LNGOs will greatly increase the reach of protection and assistance. In mid-June 2013 a UN aid convoy reached IDPs in the village of Mai Ja Yang in the KIA-controlled territory. The aim of the 10-truck aid convoy was to assist about 5,100 IDPs in multiple camps along the route from Mai Ja Yang and Bhamo. In response to the successful delivery, Ashok Nigam, UN resident humanitarian coordinator in Myanmar, called for this to be the first of many such convoys, seeking sustained access to the IDPs (Lawi 2013). Oliver Lacey-Hall (2013), head of the Office for the Coordination of Humanitarian Affairs in Myanmar, added that the success of the June 2013 aid convoy will be determined by whether it is the first of many. However, the seven-point plan signed by the warring parties did not discuss the issue of access to those displaced by the fighting. This has serious implications for the sustainability of basic needs in the IDP camps. For example, although the convoy delivered one month’s worth of relief supplies to Pa Kahtawng IDP camp, it was unclear whether another supply would come again (FBR 2013). As a result, there is a significant need for INGOs and UN agencies to build stronger links and trusting relationships with LNGOs in order to reach the displaced populations, as the possibility of unhindered access remains remote. IDP PERCEPTIONS

The main factors affecting the humanitarian situation in Kachin State, as identified in the Joint Strategy for Humanitarian Response in Kachin and Northern Shan States (2013–15), are the relationship between the Myanmar government and civil society in developing new policies; the trade-offs between aid and investments; tension between INGOs and LNGOs; the Tatmadaw operating outside civilian control; Chinese border controls; the level of political awareness of the general population in Myanmar; personality-driven versus institutionalised politics; climate change and disaster hindering humanitarian assistance; and the role of the media (KBC 2013: 6). A protection assessment was carried out in 2012 and found that, overall, the IDPs found their camps safe, with only six of 33 camps considered unsafe by over 40 per cent of their residents. The main factors affecting IDPs’ sense of security in IDP camps were found to be proximity to active fighting; location in church or monastery compounds or those designated by local authorities; and regular assistance. IDPs reported feelings of insecurity were for two main reasons: lack of income or means to earn a living (29 per cent), and lack of secure uncrowded shelter – both factors directly caused by camp life. When they ventured outside the IDP camp, however, 55 per cent of residents felt unsafe in government-controlled areas and 39 per cent in Kachin-controlled areas, with the key factor being the distance from their home village (Bacchin 2012: 5). The types of threat feared outside the IDP camps differed as well, with 67 per cent indicating a general fear of violence. This stems from their personal experience of the fighting, fleeing their homes, seeing them destroyed, or losing friends and relatives (Bacchin 2012: 6). Another significant facet of civilian protection is people’s own perception of their freedom of movement. Civilians often return to their villages or plots of land to check them or collect items they were unable to take with them initially. In the survey, 59 per cent admitted to returning briefly to check on their properties, only to find them completely destroyed. Some IDP camps have established monitoring systems to track

Civilian Protection and the Politics of Humanitarian Action 335 residents to ensure that they can be located. A central finding of the protection survey was that IDPs found camp committees to be their main source of protection. They have established monitoring systems to track residents, particularly when leaving the camp but also to combat anti-social behaviour (Bacchin 2012: 6). It was also found that sanitation varied depending on local conditions, and that women’s security would be improved by separate male and female latrines (Bacchin 2012: 7). As a result of the remote locations, camp residents are often hard pressed to obtain all the provisions they need for day-to-day use, whereas those located in towns and villages have much easier access to such goods. Those located near towns and villages often venture into town to find work as a day labourer for much lower pay than local workers, work illegally across the border in China, or resort to human trafficking to make ends meet (Bacchin 2012: 8). When asked about the conditions under which the IDPs would return home, 87 per cent said that when real peace and security was achieved they would return to their villages and homes with the resources to resume a normal life (Bacchin 2012: 10). In 2011 and parts of 2012 the KIO were providing the assistance needed for the majority of IDPs located in KIA-controlled areas. They established IDP camps, provided shelter and food, and administered school and health provisions. Some LNGOs have been active in this area but the scale and quality of their assistance has been hampered by severely limited funds (Bacchin 2012: 20). Another issue raised by camp residents is the role of the media and its portrayal of the Kachin conflict. Many local leaders feel that the international media frame the Kachin as the ‘awkward party’ in the national reconciliation process, because all the other ethnic nationality armed groups have signed ceasefires with the Myanmar government. These leaders also argue that they have experienced a 17-year ceasefire that did not bring a formal political resolution to the conflict, and so they know the unreality of ceasefires. Within Myanmar, increased media freedom has not resulted in greater awareness or understanding of the Kachin conflict. There is a general feeling that there is limited understanding among the wider Myanmar public, and so the likelihood of protection and assistance being provided by other civil society groups is remote. PROSPECTS FOR HUMANITARIAN ASSISTANCE AND CIVILIAN PROTECTION

Since the ceasefire breakdown in 2011, a large build-up of government forces around Myitkyina has sealed KIA-controlled areas, as mentioned, hindering UN and other INGO access to IDPs in those locations. In response, LNGOs, such as the KBC, have transformed themselves into mass emergency relief providers (Pattison 2012: 66). As demonstrated in this chapter, many IDPs are, however, trapped inside the IDP camps, either because their homes have been destroyed or because they fear targeting by the Tatmadaw, which often operates on the assumption that all Kachin are KIA (Pattison 2012: 67). The generally accepted solution is for the root causes of the conflict to be addressed, so that those displaced by the conflict are able to achieve the 4Rs – repatriation, reintegration, rehabilitation and reconstruction – through coordination and cooperation with LNGOs and the state authorities involved (Margesson 2011: 191). With the prospects for a political resolution remaining remote at present, focus needs to be on the immediate assistance and protection needs of the civilians.

336 Alistair DB Cook Some commentators are optimistic that space for officially permitted relief and development aid will begin to open up, first in non-conflict areas and then to other regions. Unless, however, there is a significant shift in leadership direction – which will likely take decades – it remains essential in the meanwhile to offer continued and increased support through LNGOs (Jolliffe 2011). As of March 2013 the Report of the Special Rapporteur for Human Rights in Myanmar, Tomas Ojea Quintana, illustrated the precarious situation facing civilians displaced by the Kachin conflict. He reported continued allegations of attacks on civilian populations, extrajudicial killings, sexual and genderbased violence, arbitrary arrest and detention, and torture. Further, he noted allegations that landmine use, child soldier recruitment, and forced labour and portering had been committed by all parties to the conflict. He also reported the continuing detention of Kachin men suspected to have links with the KIA, mostly under the Unlawful Associations Act 1908, the Explosive Substances Act 1908, the Emergency Provisions Act 1950, and the State Protection Act 1975, as well as the use of torture to extract confessions (Quintana 2013: 9). Ultimately, access to provide humanitarian assistance and protection remains dependent on LNGOs, in the absence of greater openness to INGOs and UN agencies. There are examples of organisations that operate as a hybrid of INGOs and LNGOs. By relying heavily on local leadership and input from the forcibly displaced, the Free Burma Rangers7 provide another avenue through which to distribute humanitarian assistance – particularly through strengthening survival tactics (such as strategic displacement) that are already used by civilians to counter military force (Kang 2012: 355). The Free Burma Rangers have visited IDP camps providing medical care and children’s programmes in the KIA’s 3rd Brigade area (FBR 2013). While there are several strategies to develop stronger local capacity, so long as the political negotiations loom large but inconclusive a repeat of the Thailand–Myanmar border experience will remain likely. Investigation of the current challenges around humanitarian action and civilian protection in the Kachin conflict makes it clear that international humanitarian guidelines and norms provide little recognition for the protection of vulnerable communities or other non-system actors, such as LNGOs, political organisations and armed groups. Rather, these international avenues prioritise the state and external agencies in response to complex humanitarian emergencies (South 2012: 178). These legal mechanisms reflect the state-based international system they represent but those actors who fall outside the formal state apparatus are under-appreciated, despite the role they play. While their political agency falls to the margins of analysis, LNGOs provide the assistance and protection lifeline for many vulnerable communities, particularly those forcibly displaced as a result of the Kachin conflict. Unless the role and effect LNGOs have in responding to vulnerable communities is recognised, then understanding the opportunities and limits of humanitarian action in times of need will remain underappreciated.

7 The Free Burma Rangers is a non-government, Christian-run group that delivers humanitarian assistance to internally displaced persons and is largely focused on the border regions. It was founded in the 1990s.

Civilian Protection and the Politics of Humanitarian Action 337

REFERENCES Associated Press (2013) ‘Myanmar Rebel Clashes Continue Despite Agreement’, 23 June, http:// bigstory.ap.org/article/myanmar-rebel-clashes-continue-despite-agreement. Bacchin, Valentina (2012) Internal Displacement in Kachin and Northern Shan States, Myanmar: A Protection Assessment (Bangkok, Spirit in Education Movement), November, http://bit.ly/ 19jHjLC. Barutciski, M (1998) ‘Tensions between the Refugee Concept and the IDP Debate’ 3 Forced Migration Review 11. Black, R (1998) ‘Putting Refugees in Camps’ 2 Forced Migration Review 4–7. Boaz, C and Schoenberg, C (2002) ‘Refugees, War Criminals, and International Law’ 14(2) Peace Review 199. BRIDGE et al (2013) Statement on the Joint Strategy for Humanitarian Response in Kachin & Northern Shan States (2013–2015), 24 July. Chong, DPL (2002) ‘UNTAC in Cambodia: A New Model for Humanitarian Aid in Failed States?’ 33(5) Development and Change 957. Chung, Chien-Peng (2009) ‘The “Good Neighbour Policy” in the Context of China’s Foreign Relations’ 7(1) China: An International Journal 10. Collyer, M (2005) ‘The Search for Solutions: Achievements and Challenges, Report of the Ninth IASFM Conference, Sao Paulo, Brazil, January 2005’ 18(3) Journal of Refugee Studies 247. Cook, ADB (2011) ‘The Role of External Actors in Development-induced Displacement in Myanmar’ in Nadeeka Withana (ed), Ending the Displacement Cycle: Finding Durable Solutions through Return and Resettlement (Colombo, Regional Centre for Strategic Studies). Deng, F and McNamara, D (2001) ‘International and National Responses to the Plight of IDPs’ 10 Forced Migration Review 24. Echo, Hui (2013) ‘Chinese Kachin Protest against Burma’s Kachin War’ The Irrawaddy, 22 January, www.irrawaddy.org/archives/23854. Economist (3 February 2013) ‘Myanmar and China: The Kachin Dilemma’, http://econ.st/12dDyGp. Edwards, Adrian (2012) ‘UNHCR Reaches Kachins Sent Back from China’, UNHCR Briefing Notes, 7 September, www.unhcr.org/print/5049cdba9.html. FBR (2013) ‘Not Free or Safe: Talks Bring Reduced Fighting and More Aid, But Thousands Remain Displaced’, Statement, 18 June, http://bit.ly/17jb8uW. Fontaine, P (2004) ‘New Threats to Humanitarian Workers’ 23 Refugee Survey Quarterly 4. Gopallawa, Sushesha (2013) ‘Kachin State: Local Groups Provide Aid at Great Personal Risk’, Refugees International, 30 May, http://bit.ly/ZhvuCc. Jaquet, Carine and O’Loughlin, Conor (2012) ‘Redefining Humanitarian Space: The Kachin IDP Crisis in Myanmar’ Humanitarian Exchange Magazine 55, September, http://bit.ly/R4ZEof. Jolliffe, Kim (2011) ‘Dilemmas of Burma in Transition’ 37 Forced Migration Review 15. Kachin Baptist Convention (KBC) et al (2013) Joint Strategy for Humanitarian Response in Kachin and Northern Shan States (2013–2015), 23 March. Kang, Lucy (2012) ‘Transnational Humanitarian Aid in Burma’ 24(3) Peace Review: A Journal of Social Justice 349. IRIN (2012) ‘Myanmar: Cross-line NGOs in Kachin Need Support’ IRIN: Humanitarian News and Analysis, 11 April, http://bit.ly/13m64b1. Lacey-Hall, Oliver (2013) ‘Myanmar: UN Aid Convoy Crosses Kachin Frontlines’ UN OCHA Top Stories, 19 June, www.unocha.org/top-stories/all-stories/myanmar-un-aid-convoy-crosseskachin-frontlines. Lawi, Weng (2013) ‘UN Aid Convoy Reaches Kachin IDPs in Humanitarian Breakthrough’ The Irrawaddy, 14 June, www.irrawaddy.org/archives/37546.

338 Alistair DB Cook Loescher, G and Milner, J (2005) Protracted Refugee Situations: Domestic and International Security Implications (London, Routledge). Margesson, Rhoda (2011) ‘Displaced Populations in Burma’s Borderlands: When Are Borders a Significant Barrier or Means of Protection?’ in James Clad, Sean McDonald and Bruce Vaughn (eds), The Borderlands of Southeast Asia: Geopolitics, Terrorism and Globalisation (Washington, DC, NDU Press). McLaughlin, Timothy (2013) ‘West to Push for UN Resolution’ Myanmar Times, 15 September, http://bit.ly/17Zpr9h. Minority Rights Group International (2005) ‘Kachin’ in World Directory of Minorities and Indigenous Peoples (London, MRGI), www.minorityrights.org/. Myanmar Humanitarian Bulletin (MHB) (2013) ‘Challenges Remain in Gaining Access to all IDPs in Kachin’, UN OCHA Report, January, http://bit.ly/Y39cz5. Naing, Saw Yan (2012) ‘UN Builds 2,500 Shelters for Kachin Refugees’ The Irrawaddy, 19 July, www.irrawaddy.org/archives/9532. Nickell, JK (2012) ‘Myanmar’s next hurdle: Kachin refugees returning from China’ Christian Science Monitor, 21 September, www.csmonitor.com/World/Asia-Pacific/2012/0921/Myanmar-snext-hurdle-Kachin-refugees-returning-from-China. OCHA (2013) ‘Humanitarian Situation and Response Plan in Kachin’, March update, http://bit. ly/zgktMC. Ogata, Sadako (2005) The Turbulent Decade: Confronting the Refugee Crises of the 1990s (New York, NY, WW Norton & Company). Pattison, Cory (2012) ‘Barriers to Reform in Myanmar: Displacement of Civilians in Kachin State’ 2(2) Oxford Monitor of Forced Migration 64. Qiu, Yongzheng, Liu, Chang and Li, Cong (2013) ‘Yunnan Prepares to Receive Possible Kachin Refugees’ Global Times, 14 January, www.globaltimes.cn/content/755580.shtml. Quintana, Tomas Ojea (2013) Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, Human Rights Council, 22nd session, Agenda item 4, A/HRC/22/58, 6 March. Sabatier, P and Jenkins-Smith, HC (1993) Policy Change and Learning: An Advocacy Coalition Approach (New York, NY, Westview Press). Smith, M (2004) ‘Warehousing Refugees: A Denial of Rights, a Waste of Humanity’ in US Committee for Refugees (ed), World Refugee Survey 2004 (Washington, DC, US Committee for Refugees). South, Ashley (2012) ‘The Politics of Protection in Burma – Beyond the Humanitarian Mainstream’ 44(2) Critical Asian Studies 175. TSYO (2012) ‘Catalyst for Conflict: Investments Cause Renewed War, Threatening Ta’ang Communities in Northern Burma’ TSYO Report, May, www.palaungland.org. UNDP (2012) ‘Helping Displaced Rebuild their Lives’, UNDP News and Press Release, September, http://bit.ly/16OTShF. UNHCR (2013a) ‘Myanmar Situation External Update’, No 3, July, www.unhcr.org/519ccbc29. html. —— (2013b) ‘Inter-Agency Mission Distributes Vital Aid to 2,000 Ethnic Kachin in Northern Myanmar’ UNHCR News Stories, 1 March, www.unhcr.org/print/513089176.html. UN News Centre (2013) ‘Up to 140,000 People Still Displaced One Year after Communal Clashes in Myanmar – UN’, 7 June, http://bit.ly/19x1hWR. US State Department (2013) ‘Statement by Embassy Rangoon Spokesperson’, US Embassy Rangoon Press Release 2013/1, 24 January, http://1.usa.gov/W1YlJt. Weiss, T (1999) ‘Whither International Efforts for Internally Displaced Persons?’ 36(3) Journal of Peace Research 363. White, P and Cliffe, L (2000) ‘Matching Response to Context in Complex Political Emergencies: “Relief”, “Development”, “Peace-building” or Something In-between?’ 24(4) Disasters 314. Wynn, Daniel (2013) ‘UN Envoy Refused Access to Kachin Rebel HQ’, UCA News, 15 August, http://bit.ly/16ROyu6.

Civilian Protection and the Politics of Humanitarian Action 339

LAWS

Myanmar Convention relating to the Status of Refugees 1951 Emergency Provisions Act No 17/1950 Explosive Substances Act No 6/1908 (The Burma Code, Vol II) State Protection Act No 3/1975 (Pyithu Hluttaw Law) (amended in 1991) Unlawful Associations Act No 14/1908 (The Burma Code, Vol II)

International Universal Declaration of Human Rights 1948 (United Nations General Assembly) UN Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2)

18 Unlike Any Land You Know About? Myanmar, Reform and the Indonesia Model TIM LINDSEY*

W

ITH A DECADE or so between them, I took part in two international delegations that were received by senior Indonesia politicians in Jakarta. On both occasions, human rights in Myanmar were the topic of conversation but more than years separated the meetings. The first meeting was in 1997 with President Soeharto (1966–98). Ever the Cold War warrior, he gave a chilling response to the question of why Indonesia supported Myanmar joining the Association of Southeast Asian Nations (ASEAN) that year, despite its poor human rights record. He made it clear that what the military regime ruling Myanmar did to its citizens was of little concern to him, given the political imperative of ensuring that Myanmar did not ally with China. Soeharto saw that as inevitable if it was excluded from ASEAN. Indonesia, he said, would then risk ‘encirclement’ by communists via the South China Sea and across the Indian Ocean, through Yangon. Better, he suggested, for Myanmar’s rulers to wade in blood than this happen. Over a decade later, with Soeharto long gone and Indonesian Reformasi (Reformation) well underway, I sat around a table in 2008 with delegates from a range of Asian and Western countries as we were received with his usual charm by Indonesia’s then Foreign Minister, Hassan Wirajuda (2001–09). To our surprise, however, the diplomatic pleasantries of the meeting were quickly displaced by a sustained attack on the delegate from Myanmar. His country, then still ruled by the State Peace and Development Council (SPDC) junta, was struggling to recover from both the devastation wrought by Cyclone Nargis a few months earlier and the crushing of the Saffron Revolution the year before. It had also just completed the referendum that led to a new Constitution and what the SPDC called – without a hint of irony – a ‘discipline-flourishing democracy’. The new system seemed to Indonesian eyes, however, to be very familiar, identical in many respects to the New Order system they had overthrown a decade earlier. Why, the Myanmar delegate was asked to explain, was his country so unwilling to respect basic human rights? Why did it continue to detain political prisoners? Why were

* I am grateful to Alison Youseff for invaluable research assistance for this chapter, and to Melissa Crouch, Andrew Selth and Helen Pausacker for thoughtful comments on early drafts. All errors are, of course, my own responsibility.

344 Tim Lindsey the armed forces guaranteed seats in the legislature? When would Myanmar abandon authoritarian rule and initiate a real transition to democracy? Sweating heavily, the man from Myanmar sat silently as he was berated for behaviour by his rulers that Indonesia had supported without demur a decade earlier – and which, indeed, was similar to the behaviour of Indonesia’s ruling regime before Soeharto fell in 1998. As this chapter will show, this similarity was not entirely coincidental. Kipling famously said in 1898 that ‘Burma . . . will be quite unlike any land you know about’, but ruling elites in both Jakarta and Yangon (and later, Naypyidaw) seem often to have disagreed. The leaders of SLORC (State Law and Order Restoration Council, later renamed SPDC) saw Soeharto’s New Order as a model for their own rule, and sent a delegation to study his political system, which was repressive but, until the Asian Economic Crisis began in late 1997, stable for decades. Myanmar, has, of course, since begun what may become a transition from army-dominated authoritarianism to a more open and democratic system of the kind Wirajuda urged. In doing so, its leaders are once again looking to Indonesia as a model, albeit now of a very different kind. Despite the huge shifts in political thinking and attitudes to law that took place in Indonesia between Soeharto’s fall and the meeting Wirajuda hosted, the perception that Myanmar and Indonesia share some sort of bond, and that the former sought to follow the example of the latter, has remained persistent in their dealings with each other. As the Myanmar Ambassador told Indonesia’s next Foreign Minister, Marty Natalagawa (2009–), in 2013, ‘We . . . share many similarities in our political and security situation, in culture and tradition as well as historical perspectives’ (Faizal 2013). Once again, delegations arrive from Myanmar, only now these missions are more concerned to understand how democracy and the rule of law might operate, rather than, as in the past, how to ensure they did not. This chapter offers a brief exploration of this intermittently mimetic relationship and how it has changed. I first consider whether the two countries are, in fact, all that similar. I then offer a brief account of the efforts of Myanmar’s rulers to learn from Indonesian models, and the changing nature of the relationship as Indonesia reinvented itself after 1998. In doing so, I consider whether Indonesia’s experience of largely successful transition to democracy offers any insights into how the political changes that President Thein Sein initiated in 2011 might unfold.

TWO LANDS ALIKE?

The similarities between Indonesia and Myanmar are quickly apparent. Both are countries that self-consciously draw much of their cultural and political identity from being, in different ways, in liminal zones between China and India. In Myanmar’s case this is because it shares land boundaries with both. In Indonesia’s case, it is because it sits across ancient sea routes between the two, and for centuries has been the location of commercial and cultural exchange between the two dominant civilisations of East Asia. Both Myanmar and Indonesia are, therefore, complex and fragmented societies, crisscrossed by lines of ethnic and religious difference that in many cases reflect the influence of their two giant neighbours. They also reflect a third source of significant cultural influence in Southeast Asia – the Middle East and Islam – although this is obviously far weaker in Myanmar, dominated as it is by Buddhism (89 per cent). Christians and

Myanmar, Reform and the Indonesia Model 345 Muslims in that country are said to total at least 4 per cent each, although many claim that both communities are, in fact, much larger.1 Indonesia, however, has a Muslim majority that, at over 80 per cent, is similar in its dominance to Myanmar’s Buddhist majority, while Indonesia’s own Buddhist minority is just 5 per cent. Both countries have seen significant conflicts between Christians (around 10 per cent in Indonesia) and followers of their majority religion. In Indonesia, this happened most recently seen in the brief ‘civil war’ between Christians and Muslims that erupted in eastern Indonesia in the years after Soeharto’s fall in 1998; in Myanmar, in the longrunning wars with predominantly Christian ethnic groups in the Kachin areas to the north (see Farrelly, this volume; and Cook, this volume). Likewise, although the persecution of Rohingya Muslims in Myanmar has often been criticised by Indonesians,2 their own country has also received criticism for failing to prevent attacks on religious minorities, particular Christians and Muslims identified as unorthodox or ‘deviant’ (sesat) by conservative Sunni Muslims (Lindsey 2012: 401–35). Both are vast countries. Indonesia is geographically3 and demographically the giant of ASEAN and Myanmar4 is the largest state in mainland Southeast Asia geographically, and the second-largest in terms of population. Both have rich natural resources, as well as histories of their exploitation in ways that have rarely benefited the mass of their people, among whom poverty is still widespread. Problems of illegal exploitation of resources and excessive legal extraction are common to both. This is especially true of Myanmar, where development has long lagged far behind Indonesia. The latter country is now approaching middle-income status. Myanmar, however, is one of the poorest countries in Asia and has far to go. Middle-income status is not likely there for decades to come and over a third of its population lives in poverty. Its global per capita GDP ranking is only 201 (United Nations 2012; CIA 2014). The similarities in the political histories of Indonesia and Myanmar are even more striking. Both experienced bloody colonial conquests – the British in Burma and the Dutch in the East Indies – that led to absorption into sophisticated colonial bureaucracies that largely displaced existing state systems. This meant Myanmar later inherited a legal system derived from British common law, albeit one grossly distorted by, first, repressive colonial rule and, later, the intervention of authoritarian governments (Crouch, Ch 3, this volume). Indonesia, by contrast, built its legal system on the Dutch civil law model, albeit one also distorted by colonial and home-grown authoritarianism. In both countries colonial rule was disrupted by rapacious Japanese occupation in World War II. In both, local nationalist leaders were ultimately encouraged by the Japanese to become independent from their former European masters, although in Burma there was more support for the former colonisers, particularly among the minority ethnic groups. In any case, the brief Japanese occupation certainly contributed to the 1 For religious population data in this paragraph, see CIA (2014). The Myanmar data reflect official figures and are contested (see, for example, Selth 2004). 2 DVB (2014); Budianto and Khalik (2009); Rieffel (2010: 294). There have been terrorist bomb attacks by Muslim extremists in Indonesia on the Myanmar Embassy and a Buddhist temple that the perpetrators claim are responses ‘to the screams of the Rohingya’ (DVB 2014). 3 Indonesia’s land area is 1,904,569 square kilometres, making it the world’s 15th-largest country. Myanmar’s land area of 676,578 square kilometres makes it the 40th-largest. The next-largest country in Southeast Asia is Thailand, which is 51st with 513,120 square kilometres (United Nations 2010). 4 Indonesia’s population is now at least 250 million, and Myanmar’s is around 55 million, making the latter second only to Thailand, with 66 million (United Nations 2012; CIA 2014).

346 Tim Lindsey post-war struggles against returning Western colonial powers that took place in the two countries and led to negotiated settlements in both (Sundhaussen 1995: 771–72). In both countries, charismatic leaders whose memory continues to resonate in contemporary politics played a central part in achieving independence, and both had ambivalent relations with the Japanese. The assassination of General Aung San in 1947, however, denied his country the possibility that he might be able to deliver the kind of politically astute and unifying leadership Indonesia had from Soekarno (initially at least). In both Indonesia and Myanmar, the armed forces asserted a role as guardian of the state, based on (contested) claims to have ‘saved’ their country during this time, and, in both, the prestige attached to this has diminished. In both countries, independence was followed by brief periods of unstable democratic rule that eventually led to army takeover – in Burma in 1962 and in Indonesia in 1966 – after periods of gradually increasing military intervention.5 After long periods of repressive and corrupt rule by authoritarian, army-backed regimes, both countries eventually saw those regimes stepping back to allow reforms that initiated a transition towards more liberal democratic alternatives. In both cases, poor economic performance was a factor in the shift, although in Indonesia this took the form of a sudden, catastrophic financial collapse in the midst of the Asian Economic Crisis, while in Myanmar it came after decades of poor economic management, isolation and desuetude. In Indonesia the process of transition began in 1998 and was largely in place by 2002. A key stage was the military’s acceptance that it should withdraw to the barracks and relinquish guaranteed seats in the legislature (discussed below). In Myanmar transition began more slowly in 2011 and its future trajectory is still unclear. It remains to be seen whether the Tatmadaw, Myanmar’s military, will be willing to follow the Indonesian example. In both countries, governments have had to deal with militant regional separatist movements that rely on entwined ethnic and religious identity, and which have proved very resilient (Smith 1991). In Myanmar this has most recently involved the Kachin; in Indonesia, East Timor, Aceh and Papua. Of these, only the conflicts in Aceh and East Timor have been fully resolved, although most armed groups in Myanmar now seek greater power within the Union rather than secession. It is worthy of note that in both countries some (but not all) of these minorities at times sided with Western powers during colonial wars or the war against the Japanese – the Karen in Myanmar and the Timorese in Indonesia, for example. It is also remarkable that the two countries have in common prominent daughters of the charismatic politicians who ushered in independence: Megawati Soekarnoputri and Aung San Suu Kyi. In both cases, their careers have become defined by their ambitions to follow in their fathers’ footsteps. Despite their very different styles, both have proved political leaders of long-term importance. They are of similar age and both still play central roles in national politics, and have done so for decades. Of course, none of the similarities just described are unique to Myanmar and Indonesia. Many of them can be found in a number of other countries, including, in some cases, fellow ASEAN states. The sheer number of similarities between these two countries is, however, undeniably striking, and, as will be seen, this is certainly often recognised by Indonesians and Burmese alike. 5

For this paragraph, see Sundhaussen (1995: 772–80).

Myanmar, Reform and the Indonesia Model 347 There remain important differences, however. One is that Indonesia has a single national language, Bahasa Indonesia, that is spoken – or at least understood – by almost all Indonesians, regardless of what their first language may be. This was the result of a policy adopted in the colonial period by nationalist leaders, and generally applied assiduously by later governments, sometimes almost to the point of suffocation of local identity. In any case, it was generally agreed, even by opposition leaders, that if an inclusive national identity was not deliberately developed then the ever-present forces of ‘centrifugal’ diversity could pull the country apart. This did not happen in the same way in Myanmar, and linguistic differences, entwined with ethnic tensions, persist as a significant challenge to national unity in that country. Sundhaussen (1995) suggests that existing ethnic divisions in Myanmar may have been exacerbated by grants of different rights to different groups in the early years. The first Constitution, for example, only gave rights to later opt to leave the Union and become independent to the Shan and the Karenni, and not other minorities, although these rights were later rescinded (Crouch, Ch 3, this volume). Even without these measures, however, Myanmar has never had the benefit of widespread popular and elite commitment to the engineering of the kind of overarching national identity that has helped hold Indonesia together despite interethnic tensions. Indonesia has also had the advantage of strong economic growth, at least since the 1980s. In the mid-1960s Indonesia was isolated by Soekarno’s increasingly Leftist rule, and is often described as having become an economic ‘basket case’. After he was toppled by Soeharto and the military, policies proposed by foreign and local technocrats (many trained overseas) were quickly adopted. These slashed inflation, established a steady exchange rate and a balanced budget, and offered incentives for investors – particularly from the West, which was happy to support a regime that had violently annihilated its Communist Party (Sundhaussen 1995). The resulting prosperity slowly enabled the growth of a middle class the size of which is disputed but which, on some measures, may now comprise as much as 60 per cent of the population of a quarter of a billion (Boston Consulting Group 2013). Under Soeharto, GDP long sat around 8 per cent, and foreign investment was consistently strong. This was, of course, interrupted by the disastrous Asian Economic Crisis that began in 1997, and the economy was crippled until at least 2001. Growth has since recovered to around 6 per cent, however, and investment, while not yet back at pre-Crisis levels, is nonetheless strong. By contrast, Myanmar’s economy has, as mentioned, historically been marked by minimal growth, little investment and, indeed, steadily growing impoverishment. This was largely a result of a toxic combination of, first, mismanagement by the SLORC/ SPDC juntas, which at times led to highly damaging policies such as currency devaluation and failed attempts at autarky, for example under Ne Win (Turnell 2009); and, second, economic isolation as a result of sanctions imposed by reason of the behaviour of the juntas. The result was what Sundhaussen (1995: 780) calls ‘the ruination of Burma’ – the paralysis of large parts of the country’s economy, an overall lack of development and monopolistic exploitation by the ruling elite of those areas that did remain productive. While growth in Myanmar currently also sits at around 6 per cent (CIA 2014), it is from a very low base. The question now widely asked is whether political change and lifting of many sanctions will result in Myanmar realising its economic potential in the way Indonesia began to do in the 1970s. It is perhaps a reason for paradoxical optimism about Myanmar that

348 Tim Lindsey the high levels of corruption still common in the governments of both states have not prevented Indonesia generally achieving strong levels of growth by world standards, over long periods. This is true also of infrastructure, which, while more developed in Indonesia, remains inadequate in both countries.6 Finally, the state of civil society is different in the two countries. Although the number of locally-based NGOs in Indonesia before Soeharto’s fall was relatively low, particularly as regards those involved in legal and political issues, some cause lawyer NGOs were active and a few became outspoken centres of opposition (Lindsey and Crouch 2014). Likewise, huge Muslim mass organisations have played prominent roles in public life since before independence. Nahdlatul Ulama and Muhammadiyah are considered the world’s two largest Muslim organisations (Lindsey 2012: 117–59) and in Indonesia they played key roles in building what Hefner (2000) describes as ‘Civil Islam’. By this he means a form of Islam that bases itself in civil society, adopts egalitarian and democratic values, and seeks to work within existing state structures, rather than use militant struggle to replace them. These organisations, and others like them, played a vital role in forging the coalitions of interest groups that helped push Soeharto from power and then build the new democratic system that emerged from the year or so of chaos that followed the end of the New Order in 1998. Similarly, 1999 saw a virtual explosion in the growth of NGOs, with literally tens of thousands set up within a few years. Under Soeharto a large network of both private and public tertiary institutions had developed, which, generally speaking, were relatively unconstrained in their dealings with the outside world and eventually became a source of influential intellectual discourse. A diverse media also emerged. While the New Order often intervened in the activities of the press, relying on its intrusive licensing system, journalists nonetheless developed investigative capacity and were sometimes able to place real pressure on the government, often working in concert with cause lawyer NGOs and universities. After Soeharto’s fall, the media quickly blossomed. It is now the freest in Southeast Asia, and plays a fundamental role in democratic politics. By contrast, in Myanmar none of these groups were able to develop to anything like the same extent, largely because the ruling juntas saw any alternative locus of influence or independent opinion as directly threatening, and usually moved firmly against it. The ‘respectable’ civil society that existed in Burma at independence (Rieffel 2010: 286) was thus repressed and quickly became denuded. Universities were long viewed as sources of opposition by the SLORC/SPDC regimes, and most were closed for lengthy periods and unable to develop a significant role as civil society organisations. The same was true of NGOs, of which very few were tolerated, and the press both generally lacked diversity and was closely monitored. Cooperation between cause lawyers and the press of the kind that has often occurred in Indonesia, even under the New Order – for example, staging doomed but widely reported defences as a form of ‘political theatre’ (Lindsey and Crouch 2014: 625) – was generally impossible under SLORC/SPDC, and is still very difficult (Cheesman and Kyaw Min San 2013). While Cyclone Nargis proved a catalyst for increased civil society activity in Myanmar (South 2008), there is still a long way to go before it can be comparable to Indonesia, where civil society now plays a routine and significant role in influencing government policy.

6

See generally, Rieffel (2010: 7–9).

Myanmar, Reform and the Indonesia Model 349 Religious organisations were more problematic for the junta in Myanmar (Huxley 2001). They regarded many monastic institutions with suspicion, seeing them as often linked to opposition movements. They could not easily move against the sangha, the Buddhist ‘church’, however, given that SLORC/SPDC often relied on Burmese Buddhist traditions as a part of their claims to legitimacy, ‘awarding monastic titles, building temples and publicly lavishing money on monks’ (Kuhn 2013: 4). They were, nonetheless, willing to act against individual monks and some monasteries, particularly after the failed ‘Saffron Revolution’ of 2007 showed that clergy could, indeed, be a significant centre of dissent. In any case, the result was the sangha did not develop civil society activity to anything like the extent, or sophistication, of the Muslim mass organisations in Indonesia. This creates a major challenge for Myanmar’s transition. As mentioned, civil society (particularly Muslim organisations and cause lawyer NGOs) played a crucial rule in the rapid – and, for many, surprising – decision by Indonesia’s leadership in the late 1990s to abandon military-backed authoritarianism and rapidly move to a liberal democracy dominated by civil society. It remains to be seen if Myanmar can develop a diverse and active civil society like Indonesia’s, and, if not, whether it can manage and sustain a similar transition without it. SEEKING SIMILARITY: INDONESIA AS MODEL

As mentioned, despite the differences between them just described, the SLORC/SPDC juntas saw Indonesia’s internationally accepted, and, until 1997, stable and prosperous, New Order regime as a model for how they might rule Myanmar. In fact, Indonesia’s engagement with Myanmar was limited prior to SLORC’s takeover in 1988. As a military-backed and authoritarian regime itself, Soeharto’s New Order was naturally ‘disinclined to criticize military rule in Myanmar’ and instead saw opportunities for the ruling elite in Jakarta to benefit commercially from good relations with the junta in Yangon (Rieffel 2010: 290). For these reasons, Indonesia ‘reacted in a subdued manner’ to Aung San Suu Kyi’s detention, the crushing of the 8888 uprising of 1988, and SLORC’s refusal to recognise the victory of her party, the National League for Democracy (NLD), in the 1990 elections. Instead, New Order interest in closer relations with the junta increased at this time. Sundhaussen (1995: 769) describes SLORC – then essentially ruling through a form of de facto martial law – as turning to Indonesia ‘in search of a political format’. A large SLORC delegation visited Jakarta in 1993, led by its first secretary and intelligence chief, Lieutenant General Khin Nyunt, with the specific intention of studying dwifungsi, ‘the dual function (both a defence and political force) of the Indonesian armed forces, and how this dual function is accommodated in the constitutional order’.7 Dwifungsi, a doctrine elaborated in detail by both the Indonesian armed forces and the New Order government, was ‘a major pillar’ of the New Order system, and part of its official ideology (Sundhaussen 1995: 770; Mietzner 2009). It enabled serving military officers to simultaneously hold important political positions, including as ministers, and to be active in business. The military was also deemed one of a number of ‘functional 7

Sundhaussen (1995: 768–69), citing an Indonesian news report (Kompas, 23 December 1993).

350 Tim Lindsey groups’ that were entitled to guaranteed seats in the national legislature, with 100 of its officers appointed to the legislature by Soeharto after each election. This, along with the systematic hobbling of the only two political parties allowed, and institutionalised manipulation of campaigns and elections that was formalised by a range of laws, enabled the regime’s ‘non-party’ political organisation, GOLKAR, to be confident of routinely dominating the legislature, which, in turn, appointed the President (Butt and Lindsey 2012: 19-24, 58-61). In this way, Soeharto and the army elite who backed him (but remained subordinate to him) could maintain absolute control of the political system and, at the same time, offer the outside world the thin veneer of ‘democratic’ process necessary to avoid pariah status. The appeal of this system to SLORC is obvious. It was a sophisticated and highly effective formula for a stable and prosperous military-backed authoritarian dictatorship. SLORC’s visit was answered in 1994, when Indonesia’s influential and respected Foreign Minister, Ali Alatas (1988–99), made an official visit to Yangon. This was followed in 1997 with a state visit by Soeharto, accompanied by Alatas, that included a meeting with General Ne Win, then ‘in retirement’.8 Alatas remained a consistent champion of engagement with Myanmar for the rest of his life. He, more than anyone, was responsible for developing relations between the two states, seeking to convince the Jakarta elite that Myanmar was a natural partner for his country and, later, the rulers of Myanmar that reform was necessary to allow such a partnership to continue. 1997 also, of course, saw Myanmar join ASEAN, backed by Indonesia, among others, including Malaysia, which played a leading role in SLORC’s admission to this key regional grouping (Rieffel 2010: 290–91). As mentioned earlier, Soeharto, who founded his regime’s legitimacy largely on its violent extermination of the Left in the mid-1960s and saw China as a perpetual threat to Indonesia, had come to be concerned to prevent Myanmar becoming a client of the People’s Republic. The same year also saw the start of the Asian Economic Crisis, and the swift collapse of the New Order’s Faustian bargain with its people – repression as the price of prosperity. In May 1998 Soeharto resigned as banks and publicly listed companies failed en masse, and rioting and the burning of parts of major cities was accompanied by turmoil within the military, and even coup plots. The sudden failure of the system they admired in the state that seems in many ways most similar to their own, and its transition to an open, liberal democratic system that emphasised constitutionalism and human rights (in principle at least), was, naturally, deeply concerning for the junta in Myanmar. It ‘triggered a sharp cooling of relations’ (Rieffel 2010: 290–91). The shift in Indonesia’s position to become a proponent of reform of Myanmar’s system took place equally quickly. Soeharto was replaced by his Deputy, BJ Habibie, who only lasted until October 1999, but each of the next three presidents visited Myanmar and urged change, in particular, reconciliation with Aung San Suu Kyi, although never with any success. President Abdurrahman Wahid (1999–2001) visited in November 1999 and met with her, but, as Rieffel (2010: 291) says, ‘his arguments had no visible impact on the SPDC’. 8 This would have been a fascinating meeting. Like Soeharto (in power 1966–98), Ne Win (in power 1958– 88) came from the army and survived as paramount leader of his regime for decades. Ne Win, however, was effectively sidelined by the military. Soeharto, by contrast, managed to keep the Indonesian armed forces subordinate to him until his resignation. Each man must have appeared as a ‘what if . . .’ to the other.

Myanmar, Reform and the Indonesia Model 351 A more appropriate visitor for Aung San Suu Kyi would have been her Indonesian counterpart, President Megawati Soekarnoputri (2001–04), daughter of the man who won her country’s independence, but they did not meet. Megawati arrived in Myanmar in 2001, with a large delegation seeking commercial opportunities that had no success in altering regime policies. In 2003 Indonesia hosted the ASEAN summit in Bali, and found itself embarrassed by the lack of change in Myanmar. Megawati sent Alatas as a special envoy to Myanmar, where he met with Than Shwe with the specific purpose of seeking the release from captivity of Aung San Suu Kyi, but, again, ‘as widely expected, accomplished nothing’ (Rieffel 2010: 291), despite his exceptional record as a negotiator, for example in brokering peace in Cambodia in 1991. In the same year the United Nations appointed Alatas as Special Envoy, and in this capacity he again travelled to Myanmar in 2005, with little to show for his calls for ‘reform . . . the Javanese way: slowly and surely’ (Rieffel 2010: 292). President Susilo Bambang Yudhoyono (2004–14) was elected in mid-2004. For him, Myanmar’s recalcitrance presented a significant problem for his government, creating a conflict between Indonesia’s now well-established interest in partnership and the political imperative of demonstrating its democratic and human rights credentials. In this, he was supported by Foreign Minister Hassan Wirajuda, as described at the start of this chapter. In 2005 the Indonesian legislature passed a resolution opposing Myanmar taking up its turn as chair of ASEAN, scheduled for the period 2006–09. Indonesia, the dominant power in ASEAN, was also among the countries that eventually persuaded the junta in Myanmar to do so to avoid ‘damage . . . to the prestige and credibility’ of the Association’ (Renshaw, this volume).9 In 2006 Yudhoyono visited Myanmar, and Alatas once more found himself there. Although foreign ministers signed a memorandum of understanding on the formation of a Joint Commission on Bilateral Cooperation (Antara, 20 March 2006; Faizal 2013), the regime was unmoved by Indonesia’s call for reforms. The gulf between them now seemed great indeed. From 2007 to 2008, Indonesia was a non-permanent member of the United Nations Security Council.10 This only served to emphasise the differences between it and Myanmar, which now seemed far more significant than the similarities that had so appealed to the junta when Indonesia was ruled by Soeharto, as was evident to me when I took part in the meeting convened by Wirajuda described earlier. The crackdown that crushed the Saffron Revolution in 2007 was, for example, condemned in Indonesia by both civil society and the government, which also helped prepare the unprecedented ASEAN statement that called for an end to state violence in Myanmar. In the same year, the junta’s new Constitution was, as mentioned, approved by referendum, confirming the reservation of 56 seats in the Amyotha Hluttaw (out of 224) and 110 seats in the Pyithu Hluttaw (out of 440) for the Tatmadaw, an arrangement that to many Indonesians eerily resembled the New Order they had toppled a decade earlier. The ASEAN Charter was also signed, and ratified in 2008. As shown by Renshaw (this volume), this included provision for what was to become the ASEAN Intergovernmental Commission on Human Rights. This was supported by Indonesia, but, despite Alatas’s best efforts as a member of the Eminent Persons Group that helped develop the Charter, it 9 The junta may also have been encouraged to decline the demanding role of Chair of ASEAN for reasons of its own ‘prestige and credibility’, that is, as a way of avoiding further scrutiny at a time when it already faced significant international criticism. 10 This and the next two paragraphs draw on Rieffel (2010).

352 Tim Lindsey was ‘unable to achieve a number of good governance objectives because of inflexible positions adopted by Myanmar’ (Rieffel 2010: 293). In 2008 Yudhoyono, like many other leaders, urged SPDC to do more to open their country to relief efforts after Cyclone Nargis devastated the country, but it was clear that Indonesia no longer enjoyed a special relationship with Myanmar. In the same year, Alatas made a final attempt to create a partnership between the two countries, co-founding the Indonesian Study Group on Myanmar, intended to create a multi-country meeting that would bring the junta into dialogue with the United Nations, China and ASEAN (Rieffel 2010: 294). In December that year he died, his hopes still unfulfilled. In 2009 then Prime Minister Thein Sein visited Jakarta and Indonesia took the opportunity to request that Myanmar quicken its democratic process and respect human rights principles (Budianto and Khalik 2009), as usual with little immediate impact. As a prominent Indonesia human rights advocate, Rafendi Jamin, said, ‘There is no point holding a dialogue with a country that has no commitment to building a democracy and releasing its political prisoners’. Instead, he argued, Myanmar, should ‘learn about democracy’ from Indonesia (Budianto and Khalik 2009). Relations soured further later that year, when Indonesia rescued a group of co-religionist Rohingya fleeing persecution in Myanmar, while many other Rohingya found their way to Indonesia seeking sanctuary (Budianto and Khalik 2009; Rieffel 2010: 294). Relations seemed stalled at this low point until the early 2011, when the 2008 Constitution came into force, and power was transferred to a new ‘civilian’ Union government, still headed by the former general and SPDC Prime Minister Thein Sein, now President. As discussed elsewhere in this book, a wave of reform then began that few expected, resulting in major changes to labour law, media censorship and freedom of expression, among other things, including, to a limited extent, human rights, (see Crouch, Ch 3, this volume). Although the reforms in Myanmar have not approached the sweeping nature of those that transformed post-Soeharto Indonesia, it seems Myanmar’s rulers were, once again, thinking of it as model when they decided to embark on a transition that could lead to a more open, liberal and democratic state. For example, in October 2012, during his first interview with the press in Myanmar, President Thein Sein specifically mentioned Indonesia as an example of a country that ‘withdrew the military from involvement in internal affairs as part of a transition to democracy’.11 In doing so, the junta may have had in mind one of the striking – and for some lamentable – aspects of Indonesia’s rapid and spectacular democratisation: it did not lead to a purge of leaders of the previous regime. In fact, few attempts were made to hold any accountable for their actions prior to Soeharto’s resignation. Even the trial of Soeharto himself for corruption – a crime of which few could seriously doubt he was guilty – was aborted on grounds of his ‘ill health’. This must have encouraged the military rulers of Myanmar as they considered whether to allow similar change in their country. In any case, relations between the countries once again began to warm and by the end of 2011, Indonesia was openly supporting Myanmar’s ‘potential to chair ASEAN’ in the near future (Adamrah 2011), as finally happened in 2014. Indonesian investment in Myanmar quickly grew to $241.5 million that year, and in 2012 it reached $465 million. In 2013 agreement was reached for a two-way trade target of $1 billion by 2106 (Winarti 11

Crouch (2013: 148), citing New Light of Myanmar, 22 October 2012.

Myanmar, Reform and the Indonesia Model 353 2013). In December 2011 Myanmar and Indonesia delegates meet in Yangon for the second sitting of the Joint Commission for Bilateral Cooperation. Issues were discussed that would have been hard to broach just 18 months earlier. They included strengthening cooperation on advancing good governance, democracy and human rights, and the readiness of the Election Commission of Indonesia, the National Human Rights Commission of Indonesia and the Indonesian Institute of Science to work with their Myanmar counterparts (Shasha 2011). The intention of the visit was one that would have cheered both Alatas and Wirajuda. According to Indonesian international relations expert Hariyadi Wirawan, it was to ‘make sure that democratization is ongoing in Myanmar as suggested by ASEAN’ (Adamrah 2011). Indonesia’s new Foreign Minister, Marty Natalagawa said publicly that he ‘wished to believe’ the reforms initiated that year were ‘meant to be irreversible’ (Adamrah 2011). In 2013 President Yudhoyono again visited Myanmar (Winarti 2013) and in June the third meeting of the Joint Commission for Bilateral Cooperation took place. As well as the re-emerging relationship between the two countries and socio-economic development, trade and investment, more controversial issues discussed included ‘advancing democracy’, and communal conflict resolution. The meeting also resulted in the creation of a development assistance ‘Blue Book’ on the ‘Indonesia-Myanmar Capacity Building Partnership 2013–2015’, which contains aid programmes across a range of fields (President Post 2013) and is intended to provide a formal framework for greatly increased Indonesian engagement over the next few years. Perhaps most significant, however, was the announcement in early 2014 that the Tatmadaw Commander-in-Chief, Min Aung Hlaing, had visited Jakarta to discuss strengthening military ties to allow for ‘joint military exercises and reciprocal visits . . . with the first such invitation being for Burmese involvement in a peacekeeping training course to be held in Indonesia’ (DVB 2014). Min Aung Hlaing has said that ‘the military intends to hang on to its leading role in national politics’ (Kuhn 2013). It is hard, however, to resist the temptation to speculate on whether cooperation with Indonesia might also suggest an interest on the part of the Tatmadaw in how the Indonesian military, first, managed their elegant retreat from the public political stage a little over a decade ago; and, second, established a fully independent police force, something Selth (this volume) argues is still lacking in Myanmar. CONCLUSION: REFLECTION OR REFRACTION?

The circumstances in which the transitions towards democracy began in Indonesia and Myanmar were not the same. The New Order collapsed amid an economic disaster that was, at the time, unprecedented in its speed and scale. The regime and its sole paramount leader, a man who had held power since its formation, were seen as old and exhausted – and, more importantly, as having lost their capacity to deliver the strong economic growth demanded by the huge middle class they had created. The central political question therefore quickly became not whether the regime would survive but what would replace it. Likewise, the military had become delegitimised by attempts to use violence to prop up the regime as it began to unravel. Its leaders quickly accepted that it would have to step back from direct political involvement and not play the central role in the development of a new system.

354 Tim Lindsey In Myanmar the situation is far more ambiguous. The regime, while presiding over a long-term economic failure did not suddenly collapse, and the country has not suffered a sudden, sharp catastrophic economic crisis of the kind that forced Indonesia to radically reshape itself. Nor has a middle class emerged of the size that has contributed to social and political change in Indonesia. Instead, the current reform process is still controlled by senior regime figures, and the military clearly remains a key and decisive force, even if its presence is more muted than in the past. Second, in Indonesia civil society – particularly religious organisations, universities and cause lawyer NGOs – was far stronger when the New Order regime disintegrated than it is now in Myanmar. Civil society leaders, including (but certainly not limited to) those from Muslim organisations, were respected national figures and could directly influence events such as Soeharto’s decision to resign and legislative debates about the form the new Constitution would take. In Myanmar, civil society is still relatively small and limited in capacity by comparison to Indonesia, and is still testing the limits of the new system. It is understandably more cautious about the role it plays in public life, given the old regime remains largely intact and is sometimes still willing to treat its critics harshly, for example by prosecuting journalists for unfavourable coverage of matters perceived to be state secrets (Snaing 2014). It is encouraging that some leading cause lawyer NGOs in Indonesia, for example the highly regarded Legal Aid Institute (Lembaga Bantuan Hukum, LBH), have now established links with their counterparts in Myanmar (Lindsey and Crouch 2013: 621–25), some of whom have long records of courageous resistance to SLORC/SPDC (Cheesman and Kyaw Min San 2013). Third, as so many of the contributors to this volume argue, the Constitution will play a fundamental role in Myanmar’s transition.12 The process of formally establishing a new democratic system in Indonesia took just four years, from 1999 to 2002, but it resulted in a revised, greatly expanded and amended, but essentially new, democratic Constitution. This had the advantage of being based on the existing 1945 Constitution, which, while deeply flawed, was generally accepted as legitimate – as is certainly not true of Myanmar’s 2008 Constitution. It is also significant that the reinvention of the Indonesian Constitution through amendment was achieved not through the formation of a special-purpose Constitutional Commission but through open, sophisticated and often fiery debate between political parties in the paramount national legislative body, the MPR (Majelis Permusyawaratan Rakyat, People’s Consultative Assembly). Its deliberations were widely reported and their course greatly influenced by civil society bodies outside the MPR. The debates in the MPR were not limited in any significant way, and touched on every significant aspect of the political life of the country – from the roles of the President, the legislature, the courts and the military, to the status of human rights, the place of Islamic law, and the grant of sweeping powers to local governments. For example, the exclusion of the military from the legislature was done by constitutional amendment to the effect that all members of the legislature had to be elected (art 2 of the 1945 Constitution, as amended). From this flowed a range of laws that sent the military back to the barracks. As might be expected, this issue was fiercely contested during the second amendment session in 2000, and compromises initially agreed. In the fourth amendment session in 2002, however, consensus was reached to formally end the practice of appointing members, thus excluding the military totally from the law-making 12

See, for example, Crouch (Ch 3); Williams; Dziedzic and Saunders; Harding, all this volume.

Myanmar, Reform and the Indonesia Model 355 process (Butt and Lindsey 2012: 19–24, 58–61). Largely because of these open and contested debates, the amended Constitution – which is far from perfect – was quickly accepted as legitimate and has generally functioned well. This is also true, for all their shortcomings, of many of the new institutions it created, in particular the influential Constitutional Court. In Myanmar the process of reform has been much slower. More than three years have already passed since it began in 2011, and only limited progress has been made, with the form a future democratic Myanmar might take still unclear. The process of creating a new Constitution began with the National Convention in 1993 but was tightly controlled by the SLORC/SPDC regimes. Little real open debate was allowed and the referendum that approved it in 2008 is widely seen as illegitimate. The Constitutional Review Committee announced by President Thein Sein in 2013 has made only very limited recommendations for possible reform and it is widely regarded as having been a futile exercise. Finally, a decisive part of the political bargain struck in Indonesia early in the transition process was the decision to transfer authority over all but foreign affairs, defence, security, judicial affairs, national monetary and financial affairs and religion (art 10(3), 1945 Constitution, as amended) from the national government to the provincial, and later to district and sub-district, governments – along with a majority share of local revenues (Butt and Lindsey 2012: Ch 6). This ‘big bang’ devolution is often described as the largest decentralisation ever undertaken anywhere (Butt and Lindsey 2012: 162). Contradictions between local and central government laws continue to cause real difficulties and are often very controversial, while the capacity of local governments to undertake the tasks given to them is still too low. Decentralisation has, nonetheless, been effective in maintaining and, indeed, in many cases, strengthening the commitment to the Indonesian national project of many remoter regions dominated by ethnic and religious minorities. For all its problems, and despite the opposition it has faced, this de facto ‘federalism’ has, as intended, helped hold the country together and build national support for the new democratic model. This has certainly not happened yet in Myanmar, where the conflicts with ethnic minorities – particularly in Kachin State – that have marked Myanmar’s history since independence continues. Likewise, many state and regional governments in Myanmar seem to exist largely on paper, despite much talk of devolution. It is true that Indonesia and Myanmar do share some similarities but the differences between them are also great. There is nonetheless much that Myanmar might learn from Indonesia’s experience of difficult but ultimately successful transition to what seems to be a stable democratic system. The importance of reconfiguring relations between the centre and the periphery through an open process of constitutional change that involves civil society must surely be one of the most valuable lessons. Finding a similar solution that can be used to build ethnic reconciliation with Myanmar’s long alienated and resistant ethnic minorities will also be essential if that country is ever to achieve the genuinely more open, liberal, democratic, prosperous and less unjust system that Wirajuda called for that day in 2008.

REFERENCES Adamrah, Mustaqim (2011) ‘Myanmar Gets Support to Lead ASEAN’ The Jakarta Post, 1 November, www.thejakartapost.com/news/2011/11/01/myanmar-gets-support-lead-asean.html.

356 Tim Lindsey Antara (20 March 2006) ‘RI-Myanmar Joint Commission to Hold First Meeting in Bali’, www. burmanet.org/news/2006/03/20/antara-indonesia-ri-myanmar-joint-commission-to-hold-firstin-bali/. Boston Consulting Group (2013) ‘Indonesia’s Rising Middle-Class and Affluent Consumers: Asia’s Next Big Opportunity’ BCG Perspectives, March, www.bcgperspectives.com/content/articles/ center_consumer_customer_insight_consumer_products_indonesias_rising_middle_class_ affluent_consumers/. Budianto, Lilian and Khalik, Abdul (2009) ‘SBY Urged to Ask Myanmar to Speed up Democratization’ The Jakarta Post, 16 March, www.thejakartapost.com/news/2009/09/16/sby-urged-ask-myanmarspeed-democratization.html. Butt, Simon and Lindsey, Tim (2012) The Indonesian Constitution: a Contextual Analysis (Oxford, Hart Publishing). Cheesman, Nick, and Kyaw Min San (2013) ‘Not Just Defending; Advocating for Law in Myanmar’ 31(3) Wisconsin Journal of International Law, 702–733. CIA (2014) World Factbook – East and Southeast Asia, www.cia.gov/library/publications/theworld-factbook/geos/bm.html. Crouch, Melissa (2013) ‘Asian Legal Transplants and Rule of Law Reform: National Human Rights Commission in Myanmar and Indonesia’ 5(2) Hague Journal on Rule of Law 146. DVB (2014) ‘Burmese Military Seeks Closer Ties with Indonesia’, http://english.dvb.no/news/ burmese-military-seeks-stronger-ties-with-indonesia-myanmar/37384. Faizal, Elly (2013) ‘Myanmar, RI to Promote, Enhance Ties, Cooperation’ The Jakarta Post, 1 May, www.thejakartapost.com/news/2013/01/05/myanmar-ri-promote-enhance-ties-cooperation. html. Hefner, Robert (2000) Civil Islam: Muslims and Democratisation in Indonesia (Princeton, NJ, Princeton University Press). Huxley, Andrew (2001), ‘Positivists and Buddhists: The Rise and Fall of Anglo-Burmese Ecclesiastical Law’ 143 Law and Social Inquiry 113–43. Kuhn, Anthony (2013), ‘As Myanmar Reforms, Indonesia Offers Some Lessons’, NPR Parallels, www.npr.org/blogs/parallels/2013/05/21/185815047/as-myanmar-reforms-indonesia-offerssome-lessons. Lindsey, Tim (2012) Islam, Law and the State in Southeast Asia, Volume I: Indonesia (London, IB Tauris). Lindsey, Tim and Crouch, Melissa (2013), ‘Indonesia Cause Lawyers: A House Divided’ 31(3) Wisconsin Journal of International Law 619–44. Mietzner, M (2009) Military Politics, Islam, and the State in Indonesia: From Turbulent Transition to Democratic Consolidation (Singapore: Institute of Southeast Asian Studies). President Post, The (2013) ‘The Third Meeting of the Joint Commission of Indonesia-Myanmar’ The President Post, 13 June, www.thepresidentpost.com/?p=29222. Rieffel, Lex (2010) ‘The Indonesian Angle’ in Li Chenyang and Wilhelm Hofmeister (eds), Myanmar: Prospect for Change (Singapore, Select Publishing and Konrad-Adenauer-Stiftung; Kunming, Yunnan University Press). Selth, Andrew (2004) ‘Burma’s Muslims and the War on Terror’ 27(2) Studies in Conflict and Terrorism. Shasha, Deng (2011) ‘Myanmar, Indonesia Hold Joint Commission Meeting in Yangon’, Xinhuanet, 28 December, news.xinhaunet.com/english/world/2011-12/28/c_131331973.htm. Smith, Martin (1991) Burma: Insurgency and the Politics of Ethnicity (London, Zed Books). Snaing, Yen (2014) ‘Sixth Unity Journal Stafer Detained for Questioning’, The Irrawaddy, 5 February, http://www.irrawaddy.org/burma/sixth-unity-journal-staffer-detained-questioning. html. South, Ashley (2008) Civil Society in Burma: The Development of Democracy Amid Conflict (Washington, DC, East-West Centre and Singapore, Institute of Southeast Asian Studies).

Myanmar, Reform and the Indonesia Model 357 Sundhaussen, Ulf (1995) ‘Indonesia’s New Order: A Model for Myanmar?’ XXXV(8) Asian Survey 768. Turnell, Sean (2009) Fiery Dragons: Banks, Moneylenders and Microfinance in Burma (Denmark, NIAS Press). United Nations (2010) Demographic Yearbook – Table 3: Population by Sex, Rate of Population Increase, Surface Area and Density (pdf) (United Nations Statistics Division), http://unstats. un.org/unsd/demographic/products/dyb/dyb2.htm. —— (2012) World Population Prospects – The 2012 Revision: Highlights and Advance Tables (The Department of Economic and Social Affairs of the United Nations), http://esa.un.org/unpd/ wpp/Documentation/pdf/WPP2012_HIGHLIGHTS.pdf. Winarti, Agnes (2013) ‘Myanmar, RI Reaffirm to $1bn in Trade’, The Jakarta Post, 13 June, www. thejakartapost.com/news/2013/06/13/myanar-ri-reaffir-1b-trade.html.

19 The Regional Context of Myanmar’s Democratic Transition: What Role for ASEAN’s New Institutions? CATHERINE SHANAHAN RENSHAW

A

S MYANMAR WAS beginning its uncertain transition to democracy, the Association of Southeast Asian Nations (ASEAN) was undergoing a transformation of its own.1 This culminated on 28 November 2007 in the signing of the ASEAN Charter by the Heads of State of the Association’s 10 members. The Charter confirms ASEAN’s status as an intergovernmental organisation with legal personality (s 3), and commits the Association to a range of ambitious goals. These include the creation of a single regional market and production base; narrowing the development gap within ASEAN; strengthening democracy; enhancing good governance and the rule of law; and promoting and protecting human rights and fundamental freedoms (s 1(5)–(7)). The Charter obliges member states to take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of the Charter and comply with the conditions of membership (s 5(2)). The Charter also provides, under section 14, for the creation of ‘an ASEAN Human Rights Body’. This body was eventually established on 23 October 2009, as the ASEAN Intergovernmental Commission on Human Rights (AICHR). AICHR’s Terms of Reference (TOR) provide that is it to be guided by principles that include: ‘adherence to the rule of law, good governance, the principles of democracy and constitutional government’ (TOR, s 2.1(d)), and ‘respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice’ (TOR, s 2.1(e)). On 18 November 2012 the ASEAN Human Rights Declaration (AHRD) was adopted by ASEAN Heads of State. Sections 6 and 10 of the AHRD provide that ASEAN Member States affirm all the civil and political rights, and all the economic, social and cultural rights, in the Universal Declaration of Human Rights, as well as the specific rights listed in the AHRD. Among these specific rights is the right of political participation, and the right of every citizen ‘to vote in periodic and genuine elections, which should be by 1 The ASEAN Human Rights Declaration, 18 November 2012 (AHRD). The Association of Southeast Asian Nations (ASEAN) was formed in 1967. Its members are Brunei Darussalam; the Kingdom of Cambodia; the Republic of Indonesia; the Lao People’s Democratic Republic; Malaysia; the Republic of the Union of Myanmar; the Republic of the Philippines; the Republic of Singapore; the Kingdom of Thailand; and the Socialist Republic of Vietnam.

360 Catherine Shanahan Renshaw universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors, in accordance with national law’ (AHRD, s 25). These are, in some regards, remarkable developments. Southeast Asia is a region renowned for its aversion to ‘legalisation’2 (Kahler 2000, cf Alvarez 2007); resistance to international human rights law; adherence to principles of sovereignty; non-interference in the political affairs of member states; and dedication to the so-called ‘ASEAN way’ of decision making by consensus (Emmerson 2008; Davidson 2009). Historically, these characteristics have underpinned what many regard as the limitations of Southeast Asian regionalism, manifest in the absence of deep economic integration, the persistence of bilateralism and the non-use of regional dispute-resolution mechanisms, such as the ASEAN High Council (Ramcharan 2000; Ewing-Chow 2008; Emmerson 2008). Until 2007, ASEAN’s principal plaudits came from the fact that, despite the weakness of its institutional architecture, and the existence of potential conflicts over land and maritime boundaries, ASEAN has largely managed to maintain regional peace throughout the four decades of its existence. ASEAN’s new institutions possess structural limitations that suggest continuing ambivalence on the part of member states about deepening regional integration. First, both the Charter and AICHR continue to observe consultation and consensus-based decision-making processes. This means that the Association has limited ability to act in the face of strong resistance by a single member. Second, neither the ASEAN Summit (ASEAN’s supreme decision-making body) nor AICHR possess coercive powers, such as provisions to suspend or expel members for non-compliance or breach of the Charter. Third, AICHR is formally described as an ‘intergovernmental institution’, its mandate is ‘consultative’ and its commissioners are ‘accountable to the appointing government’ (TOR, s 3, 5.2). The Commission is not constituted as an independent body mandated to perform impartial oversight of the actions of governments in the region. Fourth, the ASEAN Declaration makes clear that its purpose is to ‘establish a framework for human rights cooperation in the region and to contribute to the ASEAN community building process’ (AHRD, Preamble). The Declaration is not promoted as a means for holding individual ASEAN states accountable at the regional level for breaches of human rights. There is also considerable uncertainty about ‘democracy’ as a lodestar for the new ASEAN, given the region’s political diversity. The Association’s 10 members include Brunei Darussalam, which is an absolute sultanate, the communist states of Laos and Vietnam, and Myanmar, which is described in the 2008 Constitution as a ‘genuine disciplined multi-party democracy’ (s 6(d)). In Malaysia and Singapore the same party has won every election since the countries gained independence from Britain after the Second World War. Cambodia’s 2013 elections were won by Prime Minister Hun Sen, who has held power in Cambodia since 1985. The Philippines, Thailand and Indonesia maintain 2 In 2000 the journal International Organisation dedicated an entire issue to the subject of the legalisation of world politics. In the lead article, the editors of the issue defined ‘legalisation’ as consisting of three elements: obligation (a quality of compulsion), precision (clarity in defining the conduct that is required, authorised or proscribed) and delegation (interpretation, application and implementation by third parties) (Abbott, Keohane, Moravcsik, Slaughter and Snidal 2000). This is, largely, the definition adopted by Kahler in his article on legalisation in the Asia-Pacific region (Kahler 2000). Alvarez (2007) challenges this conception of legalisation (at least as it applies to international law). Alvarez argues that this definition is a ‘narrow, legalistic concept of legalisation’ that is outdated. Alvarez points to soft law, for example, which takes place in the absence of express, delegated, law-making power (Alvarez 2007: 26).

The Regional Context of Myanmar’s Democratic Transition 361 pluriform multi-party systems. Yet, in 2006 and again in 2014, Thailand’s democracy was punctuated by a military coup d’etat. Because of these limitations and uncertainties, there is a high degree of scepticism about the depth of ASEAN’s commitment to promoting democracy in Southeast Asia. Dosch writes, for example, that ‘An organization that comprises mainly soft authoritarian regimes and governments cannot be expected to promote democracy’ (Dosch 2008: 529) and Emmerson concurs: ‘Southeast Asian regionalism in the evangelical service of liberal democracy is political science-fiction’ (Emmerson 2008: 56). Jones cautions against ASEAN adopting a regional agenda for democratic transformation, arguing that ASEAN should maintain its historically limited, conservative intergovernmental project for maintaining regional order, or risk unravelling the Association’s ‘proven practical utility’ in maintaining peace and security in the region (Jones 2008: 277). Is this scepticism justified? Or does the attention being paid to democracy at the regional level have the potential to positively affect the processes of democratic transition within Myanmar? These are the central questions with which this chapter is concerned. The premise of this chapter is that among international organisations, regional organisations are unique and potentially powerful actors. This is because, in general, regional organisations operate with smaller numbers and have higher levels of interaction than global organisations, in a context where there is shared history, geographic proximity and common security and economic interests amongst members. In many cases, these commonalities foster the construction of binding agreements and the effective monitoring and enforcement of these agreements. In terms of democratisation, regional organisations are often able to employ leverage, both real and reputational, to modify the behaviour of individual states. As Hurrell argues (2007: 131): It is easier to negotiate deep integration and the sorts of profoundly intrusive rules needed to manage globalization at the regional rather than the global level, given that values and societal consensus are likely to be higher, and the political problems of governance beyond the state more manageable at that level.

ASEAN is commonly cited as an example that contradicts the general theory about the effectiveness of regional organisations. The reasons for this have been well traversed by many scholars and it is unnecessary to rehearse them again here (Acharya 1991; Haacke 1999; Funston 2000; Haacke 2006; Kuhonta 2006; Emmerson 2008; Acharya 2009). What is relevant to the ideas explored in this chapter is recognition by the states of Southeast Asia that the Cold War world into which ASEAN was born no longer exists, and that the Association must either evolve or become irrelevant (Acharya 2009). ASEAN’s attention to an inchoate idea of ‘democracy’ is part of this evolution. The purpose of this chapter is to assess what this might mean for Myanmar, which, like ASEAN, stands on the cusp of a new era. The scope of this chapter is limited in two respects. First, my focus is on political reform within Myanmar. It is, of course, artificial to isolate political reform from interrelated issues, such as the treatment of racial minorities, religious freedom and economic development. Nonetheless, there is some merit in focusing on democracy. A ‘minimal’ level of democracy has come to be seen as a basic human right, a requirement of justice, and a prerequisite for peace and respect for many other human rights (Buchanan 2004). A study of the Myanmar/ASEAN dialectic on the subject of democracy should tell us much about the possibilities or limitations of other areas of regional engagement.

362 Catherine Shanahan Renshaw Second, although the focus of this chapter is on Myanmar’s relationship with ASEAN, the broader geographical framework should be borne in mind. In 1948 Burma’s Prime Minister U Nu famously said: ‘Take a glance at our geographical position: Thailand in the East, China in the North, India in the West, and stretching Southward, Malaya, Singapore and so on. We are hemmed in like a tender gourd among the cactus’ (Steinberg 1993: 9). Myanmar’s sense of its own geostrategic vulnerability, which in the past has led to the prioritisation of security, remains an important factor. We should not conclude from the focus on ASEAN that other states and actors are irrelevant to prospects for Myanmar’s democratisation. Both Myanmar’s rapprochement with the West and its enduring economic ties with China will, to some degree, influence the course of Myanmar’s political development. Finally, the arguments in this chapter are based on the understanding that democracy in Myanmar is extremely fragile. Of the possible trajectories for Myanmar’s democratic evolution, it is possible to imagine (at least) three paths. The first is that Myanmar’s rulers will continue to make incremental changes (to the Constitution, to voting procedures, to civil and political liberties) that lead, ultimately, to a stable and reasonably pluralist democracy. This is what is promised by the current government of Myanmar. For example, an editorial in the New Light of Myanmar (NLM) on 4 January 2012 contrasted the ‘violent conflicts, protests and bloodshed’ that have marked other country’s transitions to democracy, with Myanmar’s ‘rapid, peaceful transition with mutual understanding and trust and negotiations as directed by its former rulers’. The editorial asked: Can there be a more efficient, correct way? Hence, the Myanmar government can daringly disclose that there is no way to deviate from its democratic transition. The President and other responsible leaders have reassured the international community that they will never turn back from the country’s changes and reforms. (NLM, 4 January 2012)3

The second possible path is one where Myanmar’s nascent quasi-democracy, underpinned by the 2008 Constitution, endures for a lengthy period of time, entrenching the role of the military in politics. This is what happened in Indonesia, in the case of the democratically-elected Soeharto (Pabottingi 1995). The third possible path is a reassertion of rule by the military. In 2011 civil society leader Nay Win Maung maintained, ‘Thein Sein means change, but it’s just as likely the situation ends in a military coup’ (Larkin 2012). Scholars describe two principal dynamics that can induce the military to reassert itself in the wake of democratic transition. The first occurs when the military feels that the new government’s leaders and institutions are too weak or disorganised to protect the state, and steps in to protect the stability and unity of the nation. The second is where attempts to establish civilian supremacy threaten the military, either by decreasing the military budget or by prosecuting members of the military for crimes committed during past periods of military rule (Mainwaring 1992; Sukatipan 1995; Power and Gasiorowski 1997; Pevehouse 2005). Pevehouse writes that a ‘delicate balance’ is required, between ‘controlling a post-authoritarian military force while simultaneously holding their loyalty to the new regime’ (Pevehouse 2005: 31). 3 The government of President Thein Sein has been reluctant to link the violence that broke out in Rakhine State in June 2012 to the process of democratisation. In August 2012 President Thein Sein established a commission to investigate the violence (President Office Notification No 58/2012, 17 August 2012). The commission issued a report in April 2013. That report attributes violence to long-standing inter-racial tensions between Bengalis and citizens of Rakhine State (Republic of the Union of Myanmar 2013: 8).

The Regional Context of Myanmar’s Democratic Transition 363 These are the three scenarios that we should have in mind when we consider the potential for ASEAN to influence the course of Myanmar’s democratisation. Can ASEAN reduce the uncertainties of the transition period by guaranteeing the interests of elites? Can ASEAN provide rewards for continuing democratic reform? Does ASEAN represent democratic norms that leaders in Myanmar can credibly reference, or democratic norms that civil society within Myanmar can use to hold Myanmar’s leaders to account?

REGIONALISM AND INSTITUTIONS

Regional organisations are thought to be relevant to domestic processes of democratisation in at least two (sometimes overlapping) ways. The first is where, as in the case of Europe and, to a lesser extent, the Americas, the region possesses organisations that set democracy as a condition of membership, and the desirability of membership provides an incentive for reform (Pevehouse 2005). The second occurs through processes of ‘socialisation’, where the norms and values promoted by a regional organisation are transmitted to a member state through ‘social influence or persuasion’, altering (and eventually internalising) beliefs about what is appropriate behaviour or an appropriate system of government (Finnemore and Sikkink 1998; Schimmelfennig 2002; Slaughter 2004; Kelley 2004; Goodman and Jinks 2004). There is also a third, and more general, way in which regional geography is relevant to democratic transition. This is when a state is located within a geographic zone that is experiencing rapid revolutionary political change and becomes swept up in the ‘contagion’ effect of democracy (Doorenspleet 2004; Elkins and Simmons 2005; Leeson and Dean 2009). None of these theories sits easily with the case of ASEAN. First, democracy has never been a condition of membership in ASEAN. In the founding document of the Association of Southeast Asian Nations, the 1967 Bangkok Declaration, there are no references to ‘democracy’. The principal aims of the Association are listed as being: ‘to accelerate the economic growth, social progress and cultural development in the region’ and ‘to promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter’ (ASEAN Bangkok Declaration, ss 1 and 2). Myanmar was admitted to ASEAN in 1997, despite being under the rule of the State Law and Order Restoration Council, which had ignored the results of the 1990 elections. ASEAN’s decision to defer the admission of Cambodia, which had been scheduled to take place in 1997, stands as an exception to the general principle that membership in ASEAN is not conditional on the domestic politics of states (Duxbury 2011). Cambodia was to have been admitted in 1997, together with Myanmar and Laos. Instead, ASEAN deferred Cambodia’s admission following the coup d’etat of Hun Sen, which took place that year. Cambodia was not admitted until 1999, following the holding of democratic elections in 1998. ASEAN’s statement on the deferral of Cambodia’s admission reaffirmed ‘the commitment to the principle of non-interference in the internal affairs of other states’ but that ‘in the light of unfortunate circumstances which have resulted from the use of force, the wisest course of action is to delay the admission of Cambodia into ASEAN until a later date’ (ASEAN 1997). Second, in terms of socialisation, the regional effects of democracy operate most strongly where there is a high democratic density amongst members of a regional organisation

364 Catherine Shanahan Renshaw (Pevehouse 2005; Emmerson 2008). Arguably, of ASEAN states, only Indonesia currently possesses a political system and processes for voting that substantially meet international norms of democracy. Some ASEAN members, such as Vietnam, Laos and Brunei, do not aspire to political pluralism. In Vietnam and Laos, political parties other than the Communist Party are not permitted to stand for election, although independent candidates and self-nominees (either belonging to the party or not) are permitted to stand. In both countries, the Communist Party maintains a super-majority in the National Assembly and its members hold all central decision-making roles. The press is governmentcontrolled and rights of assembly and association are limited. In Cambodia, from the time of the 1998 elections, the Cambodian People’s Party ruled by Hun Sen has used ‘coercion, patronage, media control and other means to deny formally legal opposition parties any real chance of competing for power’ (McCargo 2005: 106). Democracy in the Philippines is constrained by serious impediments to inclusiveness and participation, such as high levels of poverty, which militate against political participation, particularly in rural areas; the continuing influence of the military and business elites in shaping government policy; corruption; and absence of the rule of law, which undermines responsible government. In Malaysia and Singapore, competitive multi-party politics is undermined by press censorship and laws that restrict the rights of opposition political parties to associate, assemble and communicate. The use of these laws – in certain cases, to arrest and charge opposition leaders – has entrenched single-party dominance in both states since independence from Britain in 1957 (Means 1996; Renshaw, Byrnes and Durbach 2011). Other pervasive strategies for the consolidation of power include the exclusion from business enterprises and civil service opportunities of those known not to support the ruling party, and the perpetuation of a climate of fear through the use of informants (Kuppuswamy 2008; Lim 2011). Singapore and Malaysia have been characterised as ‘semiauthoritarian’ states where free and fair elections do not occur. In Myanmar’s closest ASEAN neighbour, Thailand, democracy unravelled in 2006 and 2014. Thaksin Shinawatra, elected to power in 2001 under Thailand’s 1997 ‘People’s Constitution’, and re-elected in 2005, introduced a raft of policy reforms which challenged, among other things, the continuing influence and power of three of Thailand’s key (unelected) institutions: the military, the king and the senior bureaucracy (Askew 2010). In 2006 Shinawatra was unseated by a military coup. Thaksin’s sister, Yingluck, lost power in 2014, after the Constitutional Court found her guilty of abuse of power and the military assumed control of government. Some observers have argued that ASEAN stands as an example of socialisation towards anti-democratic norms: it is ‘a cozy club of mainly authoritarian leaders’ (New York Times, 2 August 1997). Third, while theories of democratic contagion have helped to explain the temporal and spatial clustering of third-wave democratic transitions in post-communist Eastern Europe (1989–2003) or fourth-wave uprisings in the ‘Arab Spring’ (2008–), there has been no strong evidence of a similar pattern of democratic diffusion amongst Myanmar’s neighbours (Slater 2008). To the west of Myanmar, the most one could point to would be Malaysia’s 2008 and 2013 elections, which were preceded by widespread protests and demands for electoral reform, and which resulted in reduced majorities for the coalition that has ruled Malaysia since independence. In elections held in 2011, the fortunes of Singapore’s ruling People’s Action Party also faltered. To Myanmar’s east, one might point to the experience of Bangladesh. Bangladesh’s history of British colonisation was followed by the failure of democracy and long periods of military rule. This in turn

The Regional Context of Myanmar’s Democratic Transition 365 ended in liberal reform by a military-backed government, and, finally, to competitive elections under a new Constitution in 2008. Myanmar’s media reported extensively on events in Bangladesh. There was also significant reporting on Indonesia’s transition from authoritarianism. The New Light of Myanmar has praised economic and political developments in Indonesia, and declared that Indonesia and Burma were ‘two nations with common identity’ (The Irrawaddy, December 1998). The New Light of Myanmar, however, published almost nothing about the tumultuous overthrow of President Soeharto in 1997, and his resignation in 1998. Overall, the evidence for a ‘neighbourhood effect’ as a direct causal element of Myanmar’s democratic transformation is very weak. Indeed, one might even argue that the perceived chaos of democracy in Thailand, with its multiple coup d’etats and the prosecution of the country’s former leaders for corruption, might, in fact, have swayed Myanmar’s generals away from democracy (Sukatipan 1995). Divergent practices of governance, and the democratic deficits that exist within all ASEAN states, sufficiently explain the absence, until now, of regional effects of democratisation. The question is whether ASEAN’s new institutions augur change. WHAT, IF ANYTHING, DOES THE ASEAN CHARTER CHANGE?

‘Non-Democratic Conduct’ and the ASEAN Charter Early drafts of the Charter, prepared by the Eminent Persons Group, included provisions for sanctions – including expulsion – for members who violate the Charter (EPG 2006).4 The Eminent Persons Group also recommended that ASEAN relax its requirement of decision making by consensus, and that ASEAN adopt as one of its principles ‘rejection of unconstitutional and undemocratic change of government’ (EPG 2006: 3). None of these suggestions was adopted in the final draft of the Charter. Arguably, according to the stated purposes of the Charter, non-democratic conduct by leaders of a member state would constitute a breach of the Charter. For example, the Charter lists as one of the ‘purposes’ of ASEAN ‘To ensure that the peoples and Member States of ASEAN live in peace with the world at large in a just, democratic and harmonious environment’ (s 1(4)). Another principle of ASEAN is ‘adherence to the rule of law, good governance, the principles of democracy and constitutional government’ (s 2(h)). All member states are required under the Charter to take all necessary measures to implement its provisions (s 5). It is unclear how ‘non-democratic conduct’ would be defined. The word ‘democracy’ is not prominent in the ASEAN lexicon. It was not until 2003 that Indonesia proposed the creation of an ‘ASEAN Security Community’ (ASC), with ‘political development’ as one of its goals. Political development was defined by Indonesia as ‘people’s participation, particularly through the conduct of general elections’; ‘good governance’; the strengthening of ‘judicial institutions and legal reforms’; and the promotion of ‘human rights and obligations through the establishment of the ASEAN Commission on Human Rights’ (Sukma 2008). Indonesia’s original proposal was unsuccessful.5 Ultimately, however, ASEAN adopted the ASC Plan of Action, which states that: 4 The Eminent Persons’ Group (EPG) was formed in 2005 with a mandate to provide ASEAN with policy guidelines on the drafting of the ASEAN Charter. Each of the 10 ASEAN states appointed one person to the EPG. 5 Wain (2004) suggests that Indonesia failed to convince ASEAN members to endorse its proposal because ASEAN members were suspicious that it was an attempt by Indonesia to assert itself as a regional hegemon.

366 Catherine Shanahan Renshaw . . . Member Countries shall promote political development in support of ASEAN Leaders’ shared vision and common values to achieve peace, stability, democracy and prosperity in the region. This is the highest political commitment that would serve as the basis for ASEAN political cooperation.

It goes on to assert that members should ‘not condone unconstitutional and undemocratic changes of government . . .’, which suggests that a commitment to democracy entails (at a minimum) that ASEAN should regard coup d’etats as a breach of the membership obligations of the Charter. ASEAN’s decision to defer Cambodia’s admission following the coup d’etat of Hun Sen arguably provides a precedent for this interpretation. But what flows from a finding that there is a breach of the Charter is unclear. The Charter provides that in the case of a ‘serious breach’, the matter shall be referred to the ASEAN Summit for a decision (s 20). The Summit is comprised of the Heads of Government of member states. The powers of the ASEAN Summit are broad, and include the power to deliberate, provide policy guidance and take decisions on key issues pertaining to the realisation of the objectives of ASEAN and important matters of interest to member states, and the power to address emergency situations affecting ASEAN by taking ‘appropriate actions’ (s 7(2)(b) and (d)). Because ‘democracy’ is one of the objectives of ASEAN, it would be possible to argue that a threat to democracy within a member was ‘an important matter of interest to Member States’ on a number of grounds. One of these might be that the absence of democracy leads to oppression and the abrogation of civil and political rights, a fact of concern to all states under principles of the universality of human rights, which ASEAN states affirm in both the TOR of the AICHR (s 2.2) and in the AHRD (s 1). Another might be that the absence of democracy in one state directly affects other members in practical ways. For example, it undermines the reputation of the Association as a whole, and it has the potential to cause problems in neighbouring states, such as the influx of refugees. Concern about reputation led ASEAN to convince Myanmar to renounce its scheduled 2006–07 chairmanship of ASEAN. The ASEAN Inter-Parliamentary Caucus on Myanmar, and the European Union and the United States, all publicly voiced their view that Myanmar should be prevented from assuming the chairmanship. Although Laos and Cambodia provided some muted support for Myanmar, all ASEAN states were largely in agreement that irrevocable damage would be done to the prestige and credibility of the Association if Myanmar took the Chair. These views were made clear to Myanmar in the lead-up to, and at, the 2005 ASEAN Foreign Ministers’ meeting in Vientiane, Laos. The official ASEAN statement issued at that meeting announced that Myanmar had relinquished the Chair because it wanted to focus its attention on its ongoing national reconciliation and democratisation process in what was a critical year for the country. The statement expressed ASEAN’s ‘sincere appreciation’ to Myanmar’s government ‘for not allowing its national preoccupation to affect ASEAN’s solidarity and cohesiveness’ and assured Myanmar that once ‘it is ready to take its turn to be the ASEAN Chair, it can do so’ (ASEAN 2005). The spill-over effects of Myanmar’s non-democratic practices have been most sorely felt in Thailand, which shares a 2,400 kilometre border with Myanmar. Recent decades have seen recurrent clashes along the Thai–Myanmar border, large numbers of political

The Regional Context of Myanmar’s Democratic Transition 367 and ethnic minority refugees fleeing into Thailand from Myanmar, and a largely unchecked flow of drugs being trafficked from Myanmar into Thailand (Ganesan 2006). From 1988 onwards, Thailand became the theatre of choice for Myanmar’s dissidents attempting to draw the world’s attention to their plight (Katanyuu 2006). One could argue that ASEAN must now regard the overthrow of democratically elected governments as a breach of the Charter. Nonetheless, the consensus rule would make it problematic to take action on a breach. The Charter provides that where consensus cannot be achieved, then the ASEAN Summit may decide how a specific decision can be made. Section 20(2) opens the way for majority decisions or decisions where something less than full consensus might exist (an ‘ASEAN minus X’ formula). The obvious difficulty is that a consensus-based decision would be required on the issue of whether or not a nonconsensus-based decision should be allowed, and there is no certainty that a recalcitrant state would permit a voting procedure that would be to its detriment. To date, ASEAN’s most notable statement about a member’s violation of human rights occurred in relation to Myanmar’s ‘Saffron Revolution’ in September 2007. In the wake of the popular uprising, which was violently suppressed by Myanmar’s government, ASEAN’s Foreign Ministers gathered in New York for the UN General Assembly. There they had what Singapore’s Foreign Minister George Yeo described as a ‘full and frank discussion on the situation in Myanmar’ (Straits Times, 2–3 October 2007). Afterwards, the Foreign Ministers issued a statement expressing their ‘revulsion’ over reports that demonstrations in Myanmar were being suppressed by violent force and that there had been a number of fatalities. The statement, delivered by Singapore’s Foreign Minister George Yeo, indicated that Ministers were ‘appalled’ at reports of automatic weapons being used against demonstrators, and demanded that Myanmar’s government immediately desist from the use of violence. It strongly urged Myanmar to exercise utmost restraint and seek a political solution, resume its efforts at national reconciliation with all parties concerned, work towards a peaceful transition to democracy, and release all political detainees, including Daw Aung San Suu Kyi (ASEAN 2007). George Yeo discussed ASEAN’s September 2007 statement in an interview with The Straits Times the following month (Straits Times, 2–3 October 2007). Yeo described the meeting of ASEAN Foreign Ministers in New York in the hour before they were due to meet the UN Secretary General, and the common feeling amongst them that they had no choice but to express ASEAN’s condemnation of events in Myanmar. ‘If here at the UN we had no common response, how could we face the Secretary-General? Or what do we say to the other countries? We would have lost all credibility’ (Straits Times, 2–3 October 2007). Yeo explained that when he read out the statement, all the Foreign Ministers were with him (including Myanmar’s) ‘to show everyone that they associated themselves with the statement’. He referred to the gathering as a family meeting where we had to confront one member who had behaved badly. It was unpleasant but unavoidable. Whatever others may say, it remains for us that Myanmar is a member of the ASEAN family and, good or bad, we can’t avoid a certain association, a certain responsibility, a certain connection with the fate of that country. But we have very little leverage over the internal development there. What we have is moral influence as members of the ASEAN family. (Straits Times, 2–3 October 2007)

The strength of ASEAN’s September 2007 statement took many by surprise (Emmerson 2008). ASEAN’s traditional methods of ‘quiet persuasion’ in relation to Myanmar

368 Catherine Shanahan Renshaw appeared to have been replaced by strong public condemnation. Writing at the time of ASEAN’s denunciation of Myanmar, Emmerson wondered whether the statement might signal an unravelling of the ‘ASEAN Way’, and its foundational commitment to sovereignty, non-interference and consensus as the basis for decision making (Emmerson 2008). Emmerson’s hope was that: Even if Yeo’s statement had more to do with diplomatic damage control than with any principled commitment to democracy, it raised a question for ASEAN and suggested a hope for the future. The question was whether regionalism in Southeast Asia should remain indifferent to democracy. (Emmerson 2008)

Notably, the ‘consensus rule’ did not prevent ASEAN from issuing this statement. Myanmar’s Future and the ASEAN Charter Let us return to the three possible scenarios for Myanmar’s future political development, outlined at the beginning of this chapter: gradual democratisation; entrenched quasidemocracy; or resumption of power by the military. In relation to the third and least desirable of these paths, the Charter assumes (potential) relevance. Arguably, ASEAN would be required under the Charter to condemn any military action to overthrow the government and could, through a decision of the ASEAN Summit, by consensus or by other means agreed to by all states, suspend membership and implement economic sanctions against a particular state.6 It should be noted that ASEAN took none of these measures after the 2014 coup d’etat in Thailand. In any regard, the crucial question is what effect this would have in the case of Myanmar. Pevehouse (2005) cites two examples in making his case for the importance of regional organisations in encouraging and preserving democracy in member states. The first example is the case of Guatemala after the 1993 self-coup of Jorge Serrano. Pevehouse argues that the Organisation of American States put considerable pressure on Serrano through protests and the threat of sanctions, which made the retention of power by Serrano unviable. Serrano was ultimately forced from office by the military, which reinstalled a civilian President. The second example is the case of the European Union and Greece. In 1967 the European Union suspended Greece’s Association Agreement with the Union after the overthrow of the Greek government by a military junta. Six years later, Greece transitioned to democracy. In both examples, Pevehouse accords the relevant regional organisation a central role in the restoration of democracy. However, other examples that are equally salient but less serviceable to Pevehouse’s theory also exist. The Southern African Development Community refused to condemn Robert Mugabe’s decades-long hold on power in Zimbabwe. The League of Arab States suspended Syria’s membership over the Syrian regime’s violence against protestors in 2011, despite a provision in the Charter of the League of Arab States that provides ‘member states shall respect the systems of government established in the other member states and regard them as exclusive concerns of those states’ (s VIII). The suspension, however, made no discernible difference to the behaviour of the Syrian government.

6

ASEAN Charter (s 20(2)).

The Regional Context of Myanmar’s Democratic Transition 369 It is impossible to predict how a coup leader in Myanmar would respond to suspension from ASEAN. The policy of isolation implemented by the European Union and the United States is regarded by many scholars as having been ineffective at best and highly counter-productive at worst (Holliday 2011; Pedersen 2011). Suspension from ASEAN would no doubt have a ‘shaming’ effect, exacerbated because condemnation emanates from Myanmar’s own friends and neighbours – the ‘ASEAN family’. But historically Myanmar’s generals have been highly resistant to shaming. ‘Shaming’ is one aspect of a broader theory of socialisation in international relations. From their different perspectives, historians, sociologists, international relations theorists and international lawyers have observed a phenomenon whereby decision makers align their country’s policies with those of geographically, historically, politically and culturally proximate nations (Goodman and Jinks 2004). In the past decade scholars have sought to specify the precise processes through which this occurs. Some have attempted to translate the insights of individual-level social psychology to the state level, suggesting that states identify with reference groups and face cognitive and social pressures to conform with their peers, in the same way that individuals do. These scholars argue that states face internal pressures to conform, which include social-psychological costs of non-conformity, such as anxiety, regret and guilt. These arise when a state’s behaviour is inconsistent with the self-concept endorsed by the reference group. Social pressures include (1) the imposition of social-psychological costs through shaming or shunning; and (2) the conferral of social-psychological benefits through ‘back-patting’ and other displays of public approval. In short, the idea is that actors hoard social legitimacy and social status, and they minimise social disapproval. One consequence is that actors seek reliable models of appropriate behaviour, and then ‘mimic’ the behaviour of these models (Scott 1995; Petty et al 1997; Risse, Ropp and Sikkink 1999; Baron et al 1996). Goodman and Jinks (2004) describe this latter process as ‘acculturation’. The Charter is a new institution and establishes the framework for more frequent, structured and rigorous engagement between government representatives of member states. For example, meetings of the ASEAN Summit and the ASEAN Coordinating Council, the latter comprising ASEAN Foreign Ministers, are now biannual (ASEAN Charter, ss 7(3)(a) and 8(1)). The Charter requires ASEAN member countries to send permanent representatives with the rank of ambassador to ASEAN to be based at the Secretariat in Jakarta in order to link the ASEAN Secretariat and the various ministerial bodies (ASEAN Charter, s 12). It also requires member states to establish National Secretariats to coordinate the implementation of ASEAN decisions at the national level, and it creates ‘Community Councils’ to coordinate economic, political-security and socio-cultural engagement (ss 9, 13). Innovations such as these signal more intense interaction and greater cohesion between government representatives and officials in ASEAN countries. According to theories of socialisation, the result of this should be increased propensity for social learning amongst members, the elaboration of group norms, the recalibration of the interests of members in line with those norms, and a decreased willingness on the part of members to contravene these norms. Even before the Charter took effect, Myanmar’s relationship with ASEAN constituted its most important and sustained multilateral engagement. Bilateral relations with China, India and Bangladesh, though of consequence economically and for Myanmar’s security, did not generate the web of institutional and diplomatic linkages spawned by

370 Catherine Shanahan Renshaw Myanmar’s ASEAN membership. In October 1996, even before it became a member of ASEAN, Myanmar had formed a ‘Steering Committee on ASEAN Affairs’ under the Department of Foreign Affairs. After assuming membership, Myanmar participated in most activities at various institutional levels as required by ASEAN, including summits, ministerial meetings and officials’ meetings. Myanmar’s government representatives were active in ‘first track’ diplomacy (between government officials) and ‘second track’ engagement (between ‘think tanks’ such as the Myanmar Institute of Strategic and International Studies) and its regional counterparts. Within each of Myanmar’s Ministries is an ‘ASEAN Unit’ to coordinate ASEANrelated activities and to liaise with other ministries on ASEAN matters. Kyaw Tint Swe and Aung Htoo (1998) have written that ‘These units are backbones of the senior officials who participate in various ASEAN fora’. Indeed, ASEAN membership necessitated the establishment of scores of government committees and sub-committees to assist Myanmar’s ministers in the cooperation and coordination of work in areas such as the ASEAN Industrial Cooperation Schemes and the ASEAN Free Trade Area. Myanmar set up a National Committee on Informational and Culture; a National Committee on Science and Technology; a National Committee on Social Development; a National Commission for Environmental Affairs; a Central Committee of Drug Abuse and Control; and a Public Service Selection and Training Board, in order ‘to be in line with existing ASEAN committees’ (Kyaw Tint Swe and Aung Htoo 1998). The work of these units, committees and sub-committees was to coordinate with the relevant ASEAN committees and sub-committees. ‘Second track’ engagement between the region’s analysts, policy advisers, civil servants, academics and military officials led to participation in workshops, conferences and meetings between ASEAN bureaucrats and state representatives at different levels. Yet all of this engagement led to little positive socialisation of Myanmar’s leaders in the period 1997–2007. This is because socialisation amongst ASEAN states to date has been largely a negative socialisation, where norms such as sovereignty and noninterference are privileged, rather than a ‘positive’ socialisation towards norms of political reform within member states. It is unlikely that the inclusion of references to democracy in the ASEAN Charter, the AHRD and the TOR of the AICHR is sufficient by itself to change this. There is, however, one element of the theory of regional democratisation that might perhaps apply to the case of Myanmar and ASEAN. Political scientists and international relations theorists argue that democratic states pressure non-democratic states to become democracies, especially in regional organisations, as a way of boosting their own international status, distancing themselves from neighbours and augmenting their own legitimacy domestically (Pevehouse 2005). This explains why democracies, particularly new ones, reorient their foreign policy to adopt pro-democracy attitudes towards authoritarian members of the regional organisations to which they belong. In this regard, it is important to note the assertiveness of Indonesia as a norm leader. Indonesia’s behaviour and discourse increasingly indicates that democratic governance is desirable, proper and appropriate (Ambrosio 2008). Indonesia has been responsible for several regional pro-democracy regional initiatives. In 2008 Indonesia initiated the Bali Democracy Forum, an annual intergovernmental meeting focused on the development of democracy in the Asia Pacific region, with the objective of promoting political development through dialogue and cooperation, thereby strengthening adherence to

The Regional Context of Myanmar’s Democratic Transition 371 democratic values and the development of democratic institutions. In 2011, during its chairmanship of ASEAN, Indonesia convened the first meeting of ASEAN Electoral Management Bodies, under the slogan ‘Inspiring Credible ASEAN Electoral Management Bodies’. The Forum, opened by Indonesian President Susilo Bambang Yudhoyono, brought together both Electoral Management Bodies and elections-related civil society organisations. The Forum resulted in the Jakarta Declaration on the South East Asian Electoral Community, a nine-point agreement that includes improvement of people’s participation in the political, economic, social and cultural sectors; promotion of gender equality and the rights of the disabled; improvement of regulations about political parties and donations for political campaigns; and improvement of the technology used to support the election process. It is unsurprising that Indonesia, together with the Philippines, was responsible for lobbying for the inclusion of ideas such as democracy in the ASEAN Charter (Dosch 2008). Rizal Sukma, one of the most influential voices within Indonesia’s civil society sector, stated at the time of the Charter negotiations that ‘the inclusion of human rights and democratic principles in the charter is non-negotiable. Indonesia must fight for it because we will have no basis for protecting people’s rights if the principles are not included in the Charter’ (Sukma 2007). Indonesian Foreign Ministry Director General for ASEAN Affairs, Dian Triansyah Djani, confirmed this position by stressing that Indonesia continued to insist on the inclusion of sections on human rights and democratic values in the ASEAN Charter (Sukma 2007). One of the parliamentary committees, Komisi I, opposed Indonesia’s ratification of the Charter altogether. Komisi I argued that lack of clarity on the issue of the mandate and powers of the human rights body, as well as ‘budgeting, the decision-making processes and mechanism, the brutality of the Myanmar junta, ASEAN integration, and the idea of ASEAN as a people-centric movement’ (Susilo 2009: 65) meant that the Charter should be rejected. Others argued that enshrining the principle of non-interference in the Charter might actually make it harder for ASEAN states to criticise members on grounds of violation of human rights and fundamental freedoms (Anwar 2009). An editorial in The Jakarta Post in July 2008 described the Charter as a ‘betrayal’ of the Eminent Persons Group report, and argued that to ratify would be to ‘sell out on the values Indonesia stands for, including democracy, freedom and human rights’ (Khalik 2008). Because of its size and relative economic success, Indonesia is within ASEAN, and for Myanmar, a highly legitimate actor. Socialisation theories predict that states will adopt institutional models that have authority and legitimacy within their key reference group. Myanmar’s leaders structured their new Constitution to allot certain seats to military officers (as did the Indonesian Constitution prior to the post-Suharto amendments), and establish a Constitutional Tribunal (Indonesia established a Constitutional Court in 2001) and a National Human Rights Institution (similar to that set up by Indonesia and the other three ‘most progressive’ ASEAN states, the Philippines, Malaysia and Thailand). What of the ASEAN Intergovernmental Commission on Human Rights? To date AICHR has been, in the words of the Indonesian representative to the Commission, Rafendi Djamin, in an ‘institution building’ phase (Djamin 2012). The first set of appointments to AICHR were conservative: most of the human rights commissioners were former career diplomats or former bureaucrats. Notable exceptions were the appointments made by Indonesia and Thailand, which were, respectively, a civil society representative (Rafendi

372 Catherine Shanahan Renshaw Djamin) and an academic and former Human Rights Commissioner (Sriphapa). But in general, the calibre of appointments adds to the perception that AICHR is not constituted with the will or capacity to challenge states on human rights issues, particularly on issues that concern the means by which governments of the region attain power and the methods by which they hold on to it. Rafendi Djamin has already spoken of the ‘flaws’ in AICHR, of his concern to make AICHR ‘more effective and credible’, and the difficulties he has encountered: ‘Until now, AICHR has never [held a] conference. Why? I cannot impose on AICHR members to meet the media [and will] leave it for others to judge’ (Rojanaphruk 2011). AICHR possesses no power to investigate individual complaints or country-specific situations. Nonetheless, the commissioners have the power to undertake independent and potentially significant inquiries to ‘obtain information from ASEAN Member States on the promotion and protection of human rights’ to perform any tasks assigned to them by the ASEAN Foreign Ministers meeting (s 4.12, 4.14). Tan argues that ‘AICHR ought to be bold in carrying out its mandate and act decisively and creatively in interpreting the TOR and executing the Blueprints’ (Tan 2011: 179). In terms of Myanmar’s democratic transition, it is, however, impossible to imagine that the commissioners of AICHR would, in the present circumstances, decide to use their mandate to initiate discourse about the meaning and value of democracy, or begin a process of deliberation at the regional and state levels about how to implement principles of equality and justice in circumstances of economic uncertainty and political insecurity. AICHR has selected two ‘thematic issues’ to work on, namely corporate social responsibility and the rights of migrant workers. Notably, these are not issues that challenge state sovereignty. CONCLUSION

ASEAN leaders are wont to characterise the Association as a ‘family’. The trope is in some ways a useful descriptor of relations between Myanmar and the regional organisation. For ASEAN, the potential value of having Myanmar within the family has always been very clear, because of Myanmar’s location within the region, its geostrategic importance and its rich natural resources. But since joining ASEAN in 1997, Myanmar has been ASEAN’s errant adolescent child: wayward, obstinate, immune to parental influence or censure, and something of a blight on the reputation of the family. Having little economic leverage over Myanmar, ASEAN has attempted to use the ‘moral influence’ of its relationship to persuade Myanmar’s leaders to govern with decency. Individually and as an association, ASEAN members have at different times cajoled, encouraged and supported Myanmar to become less overtly authoritarian. At times, pressure on ASEAN from the EU and the US has forced ASEAN to explicitly condemn Myanmar. But it is difficult to discern any real moral condemnation of Myanmar on the part of ASEAN, apart from the Association’s outburst of opprobrium after the suppression of the Saffron Revolution. What ASEAN country has not struggled to resolve issues of historical authoritarianism, the role of the military within the state, the reconciliation of restless ethnic minorities, and the management of development and democracy (Chalermpalanupap 1999)? The lesson learnt by ASEAN nations is that the source of liberalisation and democratisation is indigenous, and that external pressure is at best irrelevant and at worst counter-productive. There has never been any real doubt

The Regional Context of Myanmar’s Democratic Transition 373 on the part of ASEAN that Myanmar should remain part of the family, and that – in its own time – it would grow into ‘responsible adulthood’. This is because of ASEAN’s belief that Myanmar ‘would rather remain a part of the ASEAN family than be by itself a buffer state sandwiched between two rising powers’ (Yeo 2007). ASEAN’s new institutional architecture does not greatly change the status quo in relation to Myanmar. I return to the questions with which I began this chapter. Can ASEAN reduce the uncertainties of the transition period, by guaranteeing the interests of elites? Can ASEAN provide rewards for continuing democratic reform? Does ASEAN represent democratic norms that leaders in Myanmar can credibly reference? Or democratic norms that civil society within Myanmar can use to hold Myanmar’s leaders to account? There are negative answers to most of these questions. The potential for ASEAN’s new institutions to influence the course of Myanmar’s democratisation is limited because of the low levels of democracy amongst ASEAN’s members; the fact that the Association has not made democracy a condition of membership; and Myanmar’s lack of economic and security dependence on ASEAN because of its relationship with China (and to a lesser extent India). Awarding Myanmar the chairmanship of ASEAN for 2014 does provide an incentive for Myanmar not to back-track on political reform. How strong this incentive is remains to be seen. The ASEAN Charter is ambiguous about democracy, largely because of ongoing ambivalence amongst elites in Southeast Asia about the value of Western-style multiparty political systems in the Southeast Asian context. There is little consensus in the region about what democracy is, or what ASEAN’s role should be in promoting it. Thus on the one hand, the Charter repeats and reinforces principles of non-interference and state sovereignty; on the other hand, it supports democracy, transparency and human rights, ideas that to an extent abrogate those same principles. The net effect is incoherence. ASEAN does not represent democratic norms that leaders in Myanmar can credibly reference, or democratic norms that civil society within Myanmar can use to hold Myanmar’s leaders to account.

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INTERNATIONAL TREATIES AND DECLARATIONS ASEAN Human Rights Declaration (2008) Bangkok Declaration (1967) Charter of the Association of Southeast Asian Nations (2008) Charter of the United Nations (1945)

LAWS The Constitution of the Republic of the Union of Myanmar 2008 Constitution of the Kingdom of Thailand B.E. 2540 (1997)

20 Law and Development in its Burmese Moment: Legal Reform in an Emerging Democracy ANDREW HARDING

‘We wanted justice; we got the rule of law.’1

T

HE CHAPTER IS a reflection on Myanmar’s legal reforms at the beginning of what will probably be a brief but significant moment, which I call the ‘Burmese moment’ in law and development.2 This ‘moment’ is seen here as an interregnum beginning with the start of the reform process in Myanmar in 2011, and ending with the important juncture of 2015, when general elections are due. This interregnum is, at the same time, both a critical moment for decisions by Myanmar’s leaders and, in another sense, a critical and reflective moment for law and development.3 This chapter reflects on this moment (in both senses), drawing on discussions at a workshop on ‘Directions and Determinants in Myanmar’s Legal Reform Process’ held at the Centre for Asian Legal Studies (CALS) of the National University of Singapore in October 2012. Myanmar is in great need of, and is receiving, a good deal of international assistance but the approach taken by, and the emphasis within, these law and development initiatives represents a signal test for law and development itself. After half a century of law and development, what have we learned that is useful? In what ways can we, or should we, assist Myanmar in its time of need, seeing its broad range of issues? The chapter attempts to frame the issues in terms of both Myanmar’s laws and legal system (Kyaw Hla Win 2012) and the history and trajectory of law and development. This time, without fail, I argue, we have to get law and development right.

1 This statement, attributed to Barbel Bohley, an East German dissident at the time of Germany’s reunification in the early 1990s, was introduced by Martin Krygier at the 2012 workshop. I would like to thank all the workshop participants. I would also like to thank Nick Cheesman, Melissa Crouch, Connie Carter and Martin Krygier for their comments on an earlier version of this chapter. 2 In this chapter I generally use ‘Myanmar’ as the current official name of the country but in using the term ‘Burmese moment’ I am addressing issues going beyond the ‘Myanmar’ period (1990–date) and recognising the resonance of ‘Burma’ in the international and diasporic communities, looking, as it were, beyond ‘Myanmar’ in chronological, geographical and political senses. 3 For a brief overview of the origins and evolution of the notion of ‘law and development’ as a field of practice and research, see Trubek (2001).

378 Andrew Harding Law and development, as a collaborative exercise (in the spirit of what the Millennium Development Goals refer to as ‘global partnerships for development’)4 between Myanmar and the international community, will hopefully provide some answers to a host of difficult and urgent questions as Myanmar moves from military authoritarianism to democracy, and from being comparatively under-developed to exhibiting economic dynamism. Law and development is supposedly designed to answer such questions uniquely well; yet scepticism remains as to its efficacy and even its underlying purposes (Nader 2007; Gardner 1980).5 By an extreme irony of history, the coup that brought General Ne Win to power in 1962 marked both Myanmar’s closing to the world (Williams 2008–09: 1665ff) and, outside Myanmar, the beginning of the law and development movement (Trubek 2001, 2011; Trubek and Santos 2006). Half a century later, two previously diverging forces – Myanmar’s politics and the general aspiration towards international development – find themselves suddenly in an unexpected embrace. It is as though two sworn enemies find themselves shipwrecked together on a desert island, compelled by both chastening circumstance and the possibility of mutual salvation to become collaborators intent on achieving remarkable things. The very special nature of this ‘moment’ and the unique scholarly enterprise reported here is worthy of being recorded. What happens in this moment may well determine definitively the future direction and fate of legal reform in law and development’s latest project, the opening of Myanmar (Pedersen 2012; Kyaw Min San 2012). It is a moment of planning and reform for Myanmar’s leaders and a test of the ability of law and development to move swiftly and surely to seize this ‘moment’, while being sufficiently modest and self-critical to know that it does not have all the answers that are required. Law and development has much to teach Myanmar, a comparative novice in terms of many of the daunting problems it now faces, but law and development also can learn much from its engagement with Myanmar. Law and development has indeed been through many ‘moments’, as the guardians of its history and theory call them (Newton 2008; Trubek 2001; Rittich 2006). These moments display sequence: in effect they spell a particular trajectory of thought and experience. However, the Burmese moment discussed here is not necessarily to be seen as part of any chronological sequence. It is a uniquely ‘Burmese moment’, in which law and development focuses not on forming and implementing any global theory but on assisting in finding practical solutions for a country that has, until now, proceeded completely outside the fold of law and development (Tamanaha 1995). This, I argue, is the moment in which we realise that law and development is not ultimately about these ‘moments’ at all: it is situational, not chronological. The chapter proceeds to look at various areas of contemporary discussion about law and development in Myanmar in a sequence through constitutionalism, the rule of law, law and economic development, lawyers, legal education, and human rights, with a view to outlining the important legal issues and problems facing Myanmar. I proceed here on the basis that a record of how the moment seemed to those who were in it will be useful for those planning to engage in 4 For the MDGs, see www.undp.org/content/undp/en/home/mdgoverview/. 2015 marks the end of the MDG period as well as a critical point in Myanmar’s development. 5 Nader’s argument against the law and development movement is flawed by the fact that most legal technical assistance is requested, and is increasingly being requested, by governments of developing countries rather than being imposed externally. Her critique is, however, worth bearing in mind when addressing issues such as the efficacy of projects and the ethical position from which they are undertaken.

Law and Development in its Burmese Moment 379 law and development or legal reform projects in Myanmar or elsewhere in the near future. I begin by sketching the background to Myanmar’s situation in 2013, and then outline the October 2012 workshop and the discussion that took place. In the course of doing this I will raise many questions. These outline the magnitude of the undertaking Myanmar’s leaders and advisers now face, as well as the paucity of our own knowledge, comparatively, of this sadly and unjustly neglected, yet beautiful and fascinating, country. Indeed it is my entire point in this chapter to stress the need to engage in these activities before decisions are taken – collaboratively – as to which directions should be taken. I have been very reliant on the wisdom of the contributors to the workshop, who came from several disciplines and with many different concerns and perspectives.6 The uniqueness of the workshop experience lay in the interaction of so many impressive scholars and practitioners who had in common an interest in Myanmar originating long before the country became a fashionable object of study and international attention, as well as a deep concern for its future well-being. These contributors will be mentioned in the appropriate context and I hope to do justice to individual contributions as far as possible. The opinions stated here are supported by reference to the written record of the workshop on file with the author (CALS 2012). My method in undertaking this chapter is to attempt to synthesise, organise and comment on the discussion that took place from a law and development perspective. MYANMAR IN ITS MOMENT OF HISTORY: BACKGROUND TO THE PRESENT SITUATION

Myanmar’s long history of military, authoritarian government from 1962 to 2010 was one of striking under-development. This was ameliorated only to a certain extent by the embracing of market forces – subject to international sanctions (Ewing-Chow 2007) and some infrastructural improvements by the State Law and Order Restoration Council (SLORC)/State Peace and Development Council (SPDC) government of 1990–2010. Authoritarian government suppressed the democracy movement and the country remained largely closed to the outside world, as it had been since 1962, when it turned along the ‘Burmese path to socialism’.7 This history has now become familiar but it is worth reminding ourselves how matters got to the critical ‘moment’ of 2011–15. In August 2010 the government announced the holding of elections, which duly took place in November 2010. The election resulted in the appointment of U Thein Sein as President in the first civilian government since 1962. The 2008 Constitution had been in process in various ways for most of the period of the SLORC/SPDC government before it was finally passed in 2008 and brought into effect in 2011 (see Williams, this volume). During 2010 commentators were largely sceptical about the notion that holding elections in itself represented anything like a sincere attempt to move the country towards democracy. Constitutional restrictions had appeared to be designed specifically to prevent Aung San Suu Kyi from participating, as well as her party, the NLD, which refused 6 I have also relied on the work of two NUS doctoral candidates, Sumithra Dhanarajan and Gabriela Marti, who clearly, faithfully and intelligently recorded and presented the workshop discussions. 7 For a practical discussion of this ideology and its contemporary economic consequences, see Tin Htut Oo (2012).

380 Andrew Harding to lend to the elections the legitimacy of its participation. Aung San Suu Kyi herself was kept under house arrest throughout the campaign. The parties actually participating, the Union Solidarity and Development Party (USDP) and several much smaller parties, were in effect sponsored by the military regime; indeed the USDP is in reality the former social organisation of the military. Despite this, signs emerged that real change might be possible. Aung San Suu Kyi was released from house arrest after 15 years, and was persuaded by the President to agree to participate in by-elections in April 2012. These were prompted by a need to fill parliamentary positions vacated by those MPs forming the government. The NLD won almost all the seats in the by-election,8 changing the nature of politics and Parliament overnight (Taylor 2012). The US Secretary of State, and the British Foreign Secretary, in a development apparently designed to nudge the country towards democracy and openness, visited Naypyidaw (December 2011 and January 2012, respectively). Aung San Suu Kyi herself embarked on foreign visits to Thailand and then to Europe, her trip culminating with the notable occasions on which she addressed the British Parliament in Westminster Hall and accepted her Nobel Peace Prize. Trade sanctions accordingly began to be progressively reduced by Western governments in response to the progress of the reforms. The government, yielding to local environmental concerns, halted a Chinese dam project threatening the Irrawaddy River (Harvey 2011). This was seen as very significant in terms of relations with China and the West, as well as responsiveness to public opinion and environmental concerns. A new Law on Peaceful Assembly and Procession 2011 liberalised the position with regard to protests. Efforts were made to end the conflicts with ethnic minorities in the country’s peripheral areas (see Farrelly, this volume); stability in these areas is a critical issue for development and international relations. Some prisoners were released in October 2011, and in January 2012, following the British Foreign Secretary’s visit, large numbers of political prisoners were released. A law allowing trade unions and strikes was passed, the Labour Organisation Law 2011. Special Economic Zones were announced following the passing of the Dawei Special Economic Zone Law 2011, and the Myanmar Special Economic Zone Law 2011, in an attempt to replicate China’s economic growth strategy of the 1980s. In November 2012, following a tortuous 10-month legislative process, a new Foreign Investment Law 2012 was passed. 9 It began to look as though the reform process could not be reversed. The international community, at least, has clearly felt it appropriate to renew its interest in Myanmar. While the US government has included Myanmar in its recent ‘pivot’ towards Asia, China and India are also re-evaluating their stances towards their neighbour. ASEAN has always been engaged with Myanmar, both collectively and on an individual member-state basis. ASEAN can play an important role in assisting the integration of Myanmar with the rest of ASEAN, as it prepares to take on the chair of ASEAN in 2014 (see Renshaw, this volume), with the finalisation of the ASEAN Free Trade Area also in prospect for 2015, as well as crucial national elections in Myanmar itself. ASEAN also, as the workshop participants were reminded by Pavin Chachavalpongpun, plays a critical role in the legitimation of the reform process in Myanmar, and Myanmar’s chairing of ASEAN in 2014 will be a critical experience for its government. 8 9

They won 43/44 seats but did not contest the remaining seat. Foreign Investment Law 2012. See further, Tun Shin (2013, 8ff).

Law and Development in its Burmese Moment 381 DIRECTIONS AND DETERMINANTS IN REFORM WORKSHOP

The workshop was designed to provide a platform for CALS’ research programme investigating the directions and determinants of Myanmar’s legal reform process, and for its future efforts in capacity building (CALS 2012). It was agreed that an ethical position in relation to Myanmar research was vital. Coming from privileged environments and with relevant opportunities and expertise, participants felt they should not define their role as simply pursuing research, adding value speculatively to the reform process and our longer-term understanding of law in Myanmar. They should also attempt to fulfil the real needs that require to be met in the shorter term. They were well placed to do so. In this way, the research was seen as intimately related to capacity building, contributing to its design and effectiveness and assisting the law and development community and Myanmar lawyers and others in rebuilding the law in Myanmar. The workshop participants broadly agreed that in a real sense in Myanmar ‘everything needs fixing’10 and that objectively establishing priorities was almost impossible in this situation, the issues being interdependent to a high degree. The focus should therefore be on doing what one can do best and what others are not doing. The ‘rush to Yangon’ brought to Myanmar many international organisations, national development agencies of Western states, international NGOs, diasporic NGOs and activists, academic institutions, and law firms, among many others working in a law and development or analogous mode. There was no method of ascertaining who was doing what, with the attendant risks of unhelpful competition, overlapping and confusing messages, lack of coordination, and decision-making overload for the Myanmar authorities. One immediate lesson might be that in this situation it is necessary to scope international efforts as well as local situations. Some general issues seemed to return into the workshop discussion at several junctures. One obvious concern, as stated above, was the sheer lack of good legal information. To take an example, copies (usually cleanly rendered photocopies) of Volume VIII of the Burma Code, which contains the Penal Code and Criminal Procedure Code, are readily available in Yangon bookshops, as are copies of the Police Manual and a commentary and digests on the Penal Code. In order to get a good picture of criminal justice one would need all these sources, plus socio-legal research indicating how the police actually deal with, and even define, issues of criminality. The assumption of Myanmar lawyers seems to be that the codes are a common inheritance of former British colonies such as India, Bangladesh, Myanmar, Malaysia and Singapore, and therefore, at a doctrinal level, variations will likely be minimal.11 If so, then one should pay attention to the lived experience of the law, rather than accumulating cases.12 Indeed, the evidence of two areas (criminal law and company law) revealed that there was probably little in the way of legal learning to be acquired regarding Myanmar law, so that doctrinal development seems set to be a matter of Myanmar receiving doctrinal education in core 10 This phrase does not indicate that everything is lacking or missing. Indeed, it increasingly appears that the essential elements, as far as concerns the law (but also in other areas), are already present, albeit requiring rapid improvement. 11 A project by five NUS criminal law professors at CALS seeks to write an English commentary on the Penal Code, with suggestions for reform. It is accepted that case law needs researching, and that some issues will be common to all criminal law systems, while others may depend on local conditions or values. 12 See below, however, for a contrary view expressed by Daniel Puchniak.

382 Andrew Harding common law areas, with lawyers from Singapore and other common law countries being in the forefront. At any rate, the general strategy, it was concluded, should be to focus on legal research in the areas discussed in more detail below, combining pure information-gathering with what Dean Professor Simon Chesterman in his welcome address called ‘modesty about what could be achieved and the time within which change could be brought about’. This was reflected in a theme that recurred – the need to undertake ‘modest and helpful’ socio-legal research and capacity building. Yet another discussion that was addressed several times concerned the relative importance of skills and knowledge of beneficiary participants in the context of capacity building. Although some stressed skills as critical at this point in the process of reform, others stressed knowledge. The consensus seemed to be that both were important. As Marcus Brand attempted by way of synthesis, what was needed was ‘skills in using the knowledge acquired’. Victor Ramraj made an interesting point here: we should not assume that formal, Western-style, legal education is appropriate in Myanmar, at least with regard to skills. After all, lawyers and law workers are probably at this juncture quite adept in finding ways through the maze of formal and informal rules and systems. This is an example of the need for modesty that Dean Chesterman referred to, and it impacts heavily on how legal education should be reformed. The question then remains where the relevant knowledge is to come from, as discussed below. Meanwhile efforts are being made to develop clinical legal education using ideas from Asian and European countries. In what follows, I have divided the discussion into four roughly defined areas. Two things need to be noted. Some important themes, such as citizenship and environmental damage, essentially cut across these boundaries; and the contingency of rule of law/constitutionalism seemed to lie at the root of all the other issues. The related issue of transitional justice (Deighton and Garkawe 2000) is, of course, always an issue in transition processes, and this too, recurred several times. As Dr Tin Maung Maung Than said: ‘There are certain red lines in Myanmar for the military. Transitional justice is one of the red lines’. As has happened in Indonesia (a fruitful country for comparisons, it was repeatedly found as the discussion unfolded: see Lindsey, this volume), things might change, but the conclusion was that research was not presently possible regarding transitional justice, important as it ultimately must be.

THE CONSTITUTION: FLEXIBLE, RIGID OR CULTURAL?

Myanmar’s Constitution 2008 was the foundation of the reform process and was frequently referred to at the workshop, although from different perspectives. Initially, it was seen that the process for amending the Constitution was critical and much was made of the Constitution’s rigidity. ‘The Constitution’, said Bridget Welsh, ‘is a very constraining document’. The amendment process requires a 75 per cent majority in both Upper and Lower Houses of the Union Parliament, and 25 per cent of the members of each House are appointed by the military, effectively giving the military a veto over such amendments (see Williams, this volume). Aung San Suu Kyi herself has often mentioned constitutional change as an important issue, and, at the time of writing (December 2013), the Union Parliament has embarked on a review of the Constitution by establishing a commission to look into the matter.

Law and Development in its Burmese Moment 383 Inputs have been sought by report by 31 January 2014. 13 This raises a dilemma familiar in transitional law and development contexts. Does a rigid Constitution ensure there will be no backsliding from agreed principles in the early years of transition? Or does it, on the contrary, simply prevent the kind of rapid adjustment that is sometimes necessary in a fast-moving situation where power structures or normative considerations may change? In Indonesia, this issue was handled in a series of constitutional amendments from 1999 to 2002, a period in which the requirements, and especially the changing role of the military, looked quite different at the end of it compared to the beginning, such was the rapidity of change, both in the formal law and the conception of constitutionalism (Lindsey 2009). From the vantage point of late 2013 it looks as though this precise issue could soon be visited on Myanmar. While the rigidity of the Constitution might seem to be a large obstacle, it could also ensure that any changes carry a broad consensus. This of course remains to be seen; so far the process of change has evidenced both consensus and the lack of it. Compare, for example, the tortuous passing of the Foreign Investment Law 2012 with the smooth entrance of the NLD into the political system in April 2012, which surprised observers by its lack of opponents on either side of the political spectrum. Constitutional reform has now been placed firmly on the map as a political issue. It appears the military are not necessarily against an amendment that would enable Aung San Suu Kyi to stand for the presidency at the next elections (Reuters 2013). In addition there was extensive discussion in the workshop about other substantive issues of constitutional change: the role of the military; the electoral process; central– local constitutional and fiscal relations; ethnic minorities and federalism; the development and role of public administration; parliamentary oversight; the presidency; and the Constitutional Tribunal and the resignation of its entire bench of judges when facing impeachment in Parliament (Nardi 2010, 2012; Marti 2013). The impeachment, discussed by Dominic Nardi, was variously interpreted as laudable for its assertion of parliamentary independence and opportunity for a fresh start with the judiciary; and disastrous for its lack of understanding of the need for independence of the judiciary, irrespective of the merits of its decisions. Here is one of the characteristic ironies in rapid constitutional reform processes: bodies created to act as checks and balances on the exercise of power may come into unhelpful conflict with each other over the extent of their respective jurisdictions or status.14 In this instance, the Constitutional Tribunal had decided only three substantively important cases prior to its demolition. Despite initial scepticism about the Constitutional Tribunal, it was able and willing to strike down laws and executive actions. All three cases heard involved it declaring some executive or legislative act unconstitutional. Both Parliament and the executive seemed initially to accept the Constitutional Tribunal decisions as binding. Despite the impeachment of the judges by Parliament it is perhaps significant that it was seen as proper to remove the members of the Constitutional Tribunal rather than the Constitutional Tribunal itself. Post-impeachment, the issue is whether the reconstituted Constitutional Tribunal as an institution can recover some of its authority and legitimacy. More broadly, we should, it 13 The review was actually proposed by two USDP members who are former generals. The issue of constitutional rigidity is, of course, in practice determined by the rigidity of politics, and Myanmar seems to be entering a more flexible phase than many anticipated. 14 See, for example, the conflict in Indonesia between the Supreme Court and the Judicial Commission: Butt (2007).

384 Andrew Harding was concluded, now learn as much as we can about how the 2008 Constitution was drafted to really understand it. This is critical both for its historical value but also in order to inform future discussions on the Constitution. Another ‘Burmese moment’ – a constitutional moment – seems to be nigh. The discussion of the Constitution’s relevance to the reform process led to emphasis on the need to develop a sense of constitutionalism. One telling statement, from Tin Maung Maung Than was that ‘the Constitution is not seen as something positive; however, it is referred to all the time’. It was pertinently asked, to what extent is there a popular conception of constitutionalism – a ‘constitution of the heart’, as Martin Krygier called it, or a ‘cultural constitution’, as indicated by Victor Ramraj? This issue was illustrated by Nick Cheesman in his presentation, in which he showed photographs of a land-rights protest movement whose banner mimicked the dictatorial graphic style of military government notices, while presenting the language of constitutionalism and the rule of law. ‘No trespassing on villagers’ farmlands. Police, do not cross this line’. Is this evidence of new rights consciousness in Myanmar? (Cheesman and Kyaw Min San, 2013). In line with this, it was stressed several times in the context of discussions about human rights (especially minority rights and land-grab protests), and also the legal system more generally, that the people’s understanding or perception of law in Myanmar is a critical issue – one about which we know very little and need to know more. The problem was stated in this way: where law has been an instrument of oppression over many years, and citizens have been used to viewing law negatively as something to be avoided, how can law act as a force for desirable change? If we add to this Myint Zan’s linkage of the avoidance of law with a Buddhist culture (Huxley 1996; Engel and Engel 2010), we see that this issue is likely to be an obstacle to the development of constitutionalism in practice. Undoubtedly trust needs to be established in the institutions being reformed but it seems that they are at least seen as relevant. Perhaps here lies an answer: that the formal Constitution can be both implemented and changed as experience develops and practical issues arise. This is the essence of constitutionalism as experienced in different ways in different societies, and accordingly in a situation of rapid development the consensus was that a flexible, rather than a rigid, Constitution is preferable. In this context, Marcus Brand offered useful thoughts about a research agenda. A Constitution is thought of as a constraint on power and institutions but it must also be enabling. In Myanmar, the Constitution has become a central element, despite its rather unpromising beginnings. Issues for research should be: What is the role of the Constitution? How do we look at the Constitution, in its constraining and enabling nature? What is the potential space in which a ‘sense of constitutionalism’ can emerge? Responding to this, Bridget Welsh supplemented this view by painting the Constitution (despite her objection to its rigidity) as a potentially stabilising force. Constitutional power, it was noted by Eugene Quah, is in the process of being shared among the Union, regions, states and ethnic self-administered areas. At this level, the separation of powers is not a mirage. Our knowledge of this aspect is, however, currently very limited and needs addressing. How Myanmar stays together has been the perennial conundrum of the country since independence (Taylor 2009). It is fundamental to constitutional development and to legitimation (Diller 1993). Political scientists and international relations scholars also indicated a need for research into the political process, especially into Parliament and the changes it is under-

Law and Development in its Burmese Moment 385 going. Alistair Cook, for example, suggested that the working of parliamentary committees and the efficacy of parliamentary oversight would be a useful addition. Given the creation of a Rule of Law Parliamentary Committee headed by Aung San Suu Kyi, this has added force in connection with legal development, and it is to the rule of law that I now turn. RULE OF LAW ISSUES: POSITIVE COMMON LAW AND LAW AS PRACTICE

It is only a few years since a judge in California, Chaney J, in the famous Unocal case, faced with contradictory views as to the real nature of law in Burma, held that there was no effective rule of law and that it was ‘questionable whether an intact body of law survived the socialist regime of the 1960s and 1970s . . . [and] whether Burma has a functioning judiciary actively interpreting statutes and establishing decisional law’ (Huxley 2004, 2008) The law of Burma, she concluded, was ‘radically indeterminate’. There was, however, some credible evidence presented in this case to the effect that there was, even after the early 1960s, a functioning legal system; and even that this system belongs to the common law family. Experience in Myanmar in pursuit of the research discussed here appears to indicate, at least to me, that Chaney J’s view was either overstated or is no longer quite true. So is Myanmar to be classified as having a common law system (Southalan 2006)? Like many systems with a British colonial heritage, the common law does exist as general law, as is evidenced by every single page of the Burma Code and the digests of case law from 1872 to date. The issue is really how it actually applies. One would expect in a common law system that the substantive law is recognisable by one trained in the common law; that there exists an independent judiciary; and that the doctrine of precedent applies. None of these conditions is unambiguously inapplicable, and the first seems highly applicable. This debate about legal families seems unlikely to produce any helpful conclusion, however, as against researching particular areas of law with some care. The modesty encouraged by Dean Chesterman seems to require that we show respect for what is already there. Repeatedly we find that what is alleged to be lacking is actually present and improving, albeit not to a high degree of development. Marcus Brand described looking through Burma’s written laws as akin to a tour of a museum. The Burma Code is available in 13 volumes15 and establishes the main pillars of the legal system of Burma. If it is a museum, it is clearly an Indian museum, because these laws bear more than a family resemblance to those of India as they were at the point of Burma’s independence. Some provisions even (notoriously) refer to sums of money in rupees rather than kyat. Of course, many statutes have been passed since independence in 1948 but the museum of the Burma Code is still representative in almost all respects of the law as it is now, or at least its framework, with the exception of the statutes passed in the flurry of legislative activity after November 2010. Most major laws are of mid- or late-nineteenth- or early-twentieth-century vintage. Perhaps these museum pieces, somewhat ancient but nonetheless useful, need only dusting off – or is this the time to think more ambitiously?

15

See www.burmalibrary.org/show.php?cat=1713 for details.

386 Andrew Harding The traditional legal system of Burma was sophisticated, complex and professionally applied (Huxley 2001). It was also based on Burmese Buddhist traditions (Huxley 1997). The abolition of the monarchy by the British with the dethroning of King Thibaw in 1885 took with it the entire apparatus of traditional Burmese law, except for Burmese Buddhist customary law, which was enfolded, by way of formal legal pluralism (Furnivall 1948), within the common law system introduced into Burma, along with the customary laws of the various non-Burman ethnic groups (Maung Maung 1963; E Maung 1970). Burma was incorporated as a province of British India and the AngloIndian Codes, covering most of the substantive law apart from personal law, were applied to it. When Burma became independent it did not reintroduce the traditional system, just as it did not reintroduce the monarchy. Indeed its laws were simply those of British India; they were collected in the Burma Code and are still in force. The problem for legal reformers was well stated by Daniel Puchniak, who expressed shock that there had only been two or three cases on directors’ duties in the last 50 years (see also Tun, this volume). His question (which we could probably ask in any area of law) was, therefore, ‘This may be the formal law. But are there practical ways to work out economic rights? Is there private legal ordering taking place?’ Puchniak’s question (resonating with Victor Ramraj’s about legal education) will be asked by many others in the future as exchanges in legal education develop. There is, he maintained, a legal vacuum. Teaching company law could entail potentially anything, because anything could fill the vacuum that the apparent absence in practice of formal law seems to have created. There is, of course, as we have seen, the Companies Act itself but one is left with the question: in corporate practice, if parts of the Companies Act are a dead letter, what is it that does apply? The answer provided by Nick Cheesman is that, in practice, given the nationalisation policy of 1962–88, various rules, regulations and directives apply. Paradoxically, it appears that much litigation is, in fact, going on, so perhaps this law is not such a dead letter as it might appear. Perhaps what we see is actually a kind of living museum. According to Myint Zan there is a link between the decline in judicial independence and the absence of apex court judgments in English since 1969 (Myint Zan 2000a, 2000c). The well-known jurist Dr Maung Maung, previously a defender of judicial independence when he became Chief Justice under Ne Win, effectively abolished (or at least attempted or purported to abolish, sed quaere?) the doctrine of precedent, substituting it with government policy as the guide to resolving legal issues (Myint Zan 2000b; Cheesman 2011). Myint Zan was definitive that during the period from the 1962 coup until today, the rule of law had not existed (Nang Mo Kham Hom 2000; Huxley 1988– 89). He was, however, willing to concede that this did not mean there was no legal system or even that it was totally ineffective (Cheesman 2011). When General Ne Win, by a decree of 30 March 1962, announced the abolition of the Supreme and High Courts of Burma and the termination of the tenures of both Supreme and High Court justices, there was very little coverage in the international media or the academic and professional community outside Burma (Cheesman 2011). Similarly, when on 13 November 1988 five out of six Supreme Court judges were ‘permitted to retire’ by the SPDC, there was a palpable lack of interest on the part of the international community. He compared these occurrences to the great interest shown by the international media in the constitutional crisis in Malaysia in 1988, when Malaysia’s Lord President and three other judges were removed from office (Harding 1990; Marti 2013).

Law and Development in its Burmese Moment 387 In this situation, discussion of almost every issue raised at the workshop was, not surprisingly, compelled to encompass in some way a discussion of the rule of law (Carothers 1998; New Perimeter et al 2013). In line with the discussion of constitutionalism it was interesting to see a heavy emphasis here on ‘legal consciousness’ rather than the conventional list of rule of law prescriptions. This was consistent with Martin Krygier’s call for an ‘ethnographic approach’ (outlined in more detail below). As the International Bar Association’s report (2012) puts it, ‘formal changes to Myanmar’s laws and institutions will do little in themselves to improve the daily lives of the country’s population, but they are an essential precondition to the success of current reforms’. In spite of the ubiquity of rule of law activity and discussion, there is perhaps scope in Myanmar for some originality in rule of law thinking and research in a society where law has been the object of avoidance and distrust. Myanmar lawyer Kyaw Min San talked of the issue of trust: why should people trust or rely on the rule of law? Such a transition in public consciousness seems unlikely to occur except over a generation or more. In this context Nick Cheesman’s examination of the Letpadaung mine protest issue was instructive. The language of law, the lesson is, can be a language of power in the public domain. Claims of the kind discussed by Cheesman, using the language of law-as-justice rather than the language of legality, highlight the issue in the quotation at the head of this chapter: the demand for real justice. The conclusion here was that we should get past what Marcus Brand called ‘the rule of law as a magic wand’. The issues of corruption and conflicts of interest were, of course, also raised. According to the latest Transparency International Index (2012), Myanmar at 172nd finds only four countries below it in the corruption perception ranking: Sudan, Afghanistan, North Korea and Somalia. Here is yet another issue for research and capacity building in the field of rule of law that will have an impact not just on governance, but also on foreign investment. Myanmar has an old anti-corruption law (the Prevention of Corruption Act of 1948), and a counter-corruption agency (the Bureau of Special Investigation). An important issue is how these operate post 2010. A new AntiCorruption Act was passed by Parliament in August 2013; it requires declaration of assets by holders of public office. Myanmar’s progressive engagement with ASEAN (Renshaw, this volume) is yet another issue highlighting the need for strengthening the legal framework and the rule of law. It was pointed out that the mechanisms of ASEAN, such as the ASEAN Senior Law Officials Meeting, are very important here. These provide not just a diplomatic incentive but also good platforms, resources and benchmarks for Myanmar as it reaches for the rule of law The fact is that numerous obstacles stand in the way of promoting rule of law reform in Myanmar. The epistemic community is small. There are capacity issues in terms of language and data collection. The legal community is also limited in its ability to contribute to the discussions and debates. This is partly due to the legal education system, in which materials and law exams are in English but neither academic staff nor students generally speak English very well, the legal system being conducted entirely in Burmese. By asking the question what the rule of law is for, or what its point is, Martin Krygier, as a legal theorist engaging in rule of law work in Myanmar, was able to shed light on how we might conceptualise the rule of law and how to obtain it in settings such as Myanmar. The argument is worth setting out in full (see also Krygier 2011), as it fits very well with the conception of law and development for which I argue.

388 Andrew Harding At the core of the rule of law is opposition to the arbitrary exercise of power. Such power can exist, and the rule of law can be weak, in situations that are quite different: (i) where a tyrant rules without law; (ii) where government rules by law but is not under the rule of law; (iii) where dysfunctional government is too weak to do anything useful but strong enough to cause problems; (iv) where there is civil war; and (v) where networks such as mafias are obstacles to any predictable outcome within the legal system. In terms of Krygier’s situations listed above it might be difficult to say which applies in Myanmar. Perhaps in some way they all do, or have done. The question posed is why these very different situations should all be thought to have the same cure. The rule of law is not a piece of technology, or else it is a technology of interaction rather than, say, production. To work it needs to be able to frame and to channel actions, and these will differ with contexts and cultures. The Bulgarians have a saying: ‘The law is like a door in the middle of the open field. You can go through it – but why bother?’ If we see the law as a form of social architecture, we can see that the architect would be a fool not to figure out whether a door will be used or not, and the reasons why, before deciding to build it. The argument is therefore a plea for the ethnographic understanding of context. This is applicable generally to the issues discussed here, not just to the rule of law. LAW AND ECONOMICS

Undoubtedly Myanmar has many great attributes for foreign investors, such as the resource wealth of the country and its low-cost labour; its geographical and strategic situation is also highly relevant. However, there is a lack of trust in foreign investors and the country’s ability to resist the deleterious effects of such investment. There seems, in fact, to be no very clear direction to economic policy other than a desire to open up economically to the outside world. It seems obvious that the law must play an increasing role in framing the conditions for foreign investment. Economist Sean Turnell drew attention to the fact that economic concerns are making the content of laws increasingly important. Accordingly there is a growing demand for good law. The original Foreign Investment Law, for example, was passed in 1988 but was not applied. Now, by contrast, the new Foreign Investment Law is really beginning to have impact. It was pushed back and forth between the Upper and the Lower Houses during 2012 and proved very controversial. The initial draft offered foreign investors a tax holiday and secure land tenure, and was quite liberal in terms of the sectors in which foreigners were allowed to invest. There was, however, a reaction from Myanmar’s existing enterprises. In the Lower House, the Law was described as unacceptable. The effect of the Law as amended by the House was that foreign investors would be precluded from investing in many areas and would only be allowed to own 49 per cent of a joint-venture enterprise. A threshold minimum investment of US$5 million would also be imposed. The Myanmar Investment Commission, established in 1994 with extraordinary powers and discretion, would also ensure strong state control over investment. However, the result was a reaction against this less liberal version of the Foreign Investment Law. Aung San Suu Kyi and the NLD pushed against the more restrictive elements of the draft, so that in its final version there were some relaxations. The foreign equity restriction for joint ventures went up from 49 to 50 per cent, and the investment threshold was removed.

Law and Development in its Burmese Moment 389 Another obvious area of activity in the context of law and economic development is the Special Economic Zones (SEZ) that Myanmar is setting up in conjunction with investors from surrounding countries. Laws have been passed to provide for these, and there are currently three SEZs in planning stages (see Turnell, this volume). Part of the purpose here is to tap into investment from these countries (China, India, Thailand) as well as Japan, but also to encourage the return of the diaspora workforce, especially the ethnic minorities, to Myanmar. It has constantly been expressed in Myanmar that foreign investment is desired but there are also fears about the possibly damaging effects of investment in terms of the ability to ensure benefits from the investment, while protecting the natural environment (Tee Tee Cho 1997) and avoiding wide-scale damage to local businesses. This is especially a concern given the imminent completion of the ASEAN Free Trade Area, and the relative inexperience and resources of Myanmar businesses to compete against ASEAN companies, including multinational corporations. The SEZs, as presented by Connie Carter, offer an important case study as to how these issues might be dealt with. An obvious model is China, which initially used six SEZs to galvanise its economy from the early 1980s. Myanmar is wedged between China and India (Thant Myint U 2012), each of which has developed its own method of implementing SEZs. The question then arises: what kind of model should Myanmar adopt? Or will it develop its own model? What role might be played here by corporate social responsibility (CSR)? Given the history of the Unocal case and human rights concerns (Dale 2011; Amnesty International 2012), not to mention many cases of land grabbing that have been widespread and urgently need addressing, CSR is clearly of particular importance in Myanmar. It potentially affects labour rights, the environment and the preservation of culture and heritage. Corporate players, stated Connie Carter, need to be required to go beyond their specific legal commitments in Myanmar, because the relevant law is currently weak. Two considerations apply here: on the positive side, CSR might be seen as promising in view of the fact that philanthropy is prominent and ‘society actually works without the government’ (Bridget Welsh). On the negative side, one can ask whether foreign corporations will really embrace CSR. With regard to the all-important, but also controversial, mining and extractive industries the government has committed to implementing the Extractive Industries Transparency Initiative (EITI), another form of ‘soft’ law. The SEZ laws are still in the process of being developed, and are clearly designed to provide special incentives with regard to taxation and other issues, so that foreign investors will invest in the SEZs. According to legal practitioner Peter Morley, risk assessment will encompass the prospects for political stability as well as legal risks, which are fundamental at this point to foreign investors’ decisions regarding investment in Myanmar. Here, rule of law concerns and constitutionalism arise yet again. First there are concerns as to the substance of the relevant laws in terms of the absence of wellconsidered provisions, for example those relating to contracts and intellectual property, which are presently quite rudimentary (Christie 2005). Second, the stability and reliability of these laws is of concern in a period of rapid legal change. Peter Morley raised a further interesting question that affects our view of law and development in Myanmar: how might the approach of Chinese investors differ from that of investors from other countries, notably Western countries? China invests in infrastructure (including roads, pipelines and schools), and deals rather less with corporate governance

390 Andrew Harding and human security issues. How Myanmar deals with Chinese investors and other investors based on their differing approaches will be interesting to see. It was observed that Myanmar is attempting to balance Western against Chinese investment. More generally, the question about the new laws is whose interests are being served, and how Myanmar and its people can benefit from the economic opening without dramatic negative effects. The present legal framework for foreign investment, still vague in some areas, gives the Myanmar Investment Commission very broad discretion in approving investments. How does all this look, one wonders, from the Myanmar government’s perspective? In self-perceptive mode, the commonest position expressed by officials is that Myanmar is an ‘innocent’ or even ‘virgin’ country, which either does not know how to work through the complexities of law and development, or else takes a naive view that having the right laws solves problems – our experience of law and development leads, of course, to other, more nuanced, conclusions. We should not, in any event, conclude that having good new laws is inherently always a good thing. Perhaps measures that release the natural abilities, concerns and enthusiasm of Myanmar’s people are a better approach in some areas than insisting on new laws benefitting foreign investors only. By way of conclusion to this section, although law and economics can be very technical, discussion at the workshop was, in fact, very much concerned not just with the relationship between law and economic development but also with the social implications of development. The discussion here stressed CSR and philanthropy, human rights, labour, land grabs and land law, philanthropy, microfinance, and environmental and cultural concerns. The definition of development assumed here is essentially extremely (but commendably) holistic. LAWYERS, LEGISLATION AND LEGAL EDUCATION

Everything discussed here leads to the obvious fact that for Myanmar to develop there have to be large numbers of people who are able to act with knowledge, skill and understanding. It is critical that capacity should be built within Myanmar to take on the enormous legal tasks of reform and running a reformed legal system. Lawyers will be a very important aspect of this but lawyers alone cannot achieve what is needed: civil society and international organisations need to help. It was a struggle to find possibilities to build on – but they were, in fact, forthcoming. For example, Bobbie Sta. Maria and Kyaw Min San spoke of the vibrancy of the legal profession (Cheesman and Kyaw Min San 2013). There are 8,300 Advocates entitled to plead in the higher courts and 39,700 Higher Grade Pleaders entitled to plead in the lower courts. These are larger numbers than most people would perhaps expect but smaller than the number needed to meet the rising demand for legal services. Indeed, many of these lawyers are not actually practising (New Perimeter, Perseus Strategies and JBIHR 2013: 35). The legal aid community is also vibrant. This is promising, in that building the rule of law in practice must depend on the development of a legal complex that is supportive, proactive, skilled and creative, and responsive to popular needs (Saffin 2012). The legal profession, although currently low in capacity (knowledge, skills and situational endowments), is high in enthusiasm to mould itself into a viable instrument to transform Myanmar. One example advanced by Bobbie Sta. Maria was intriguing. A group of lawyers in a provincial area had agreed between themselves that they would,

Law and Development in its Burmese Moment 391 under no circumstances, bribe a judge. This is a small beginning perhaps, but a significant one, and a good example of the rule of law being built from the ground up, rather than top down. We can add here the increased use of courts, and complaints to Members of Parliament and the Human Rights Commission, as evidence of a growing sense of the practical utility afforded by the law and the new institutions. In the last two years, Eugene Quah pointed out, things have moved on quickly in this area. In 2011 the President outlined a 10-point legislative agenda, including the protection of the rights of citizens in accordance with the Constitution. The Union Attorney General’s Office (UAGO), together with the various ministries, is in the process of reviewing all laws and legislation. The UAGO is setting up a Constitution section. Something similar is being done by the Pyithu Hluttaw’s Commission for Legal Affairs and Special Cases. Mechanisms under the current legal system are being used and a ‘grievance chain’ is emerging. Relevant here is the issue we may call the revival of the writs. As was indicated above, the common law prerogative writs are now enshrined in the Constitution, article 296 of which gives power to the Supreme Court to grant the remedies of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. More than 400 of these writ petitions have been presented since they were reintroduced under article 296 (see Crouch, this volume). The common law, it seems, lives on in Myanmar in some sense, despite half a century under a shroud. One problem with all this institutional development is the lack of transparency with regard to remits within the reform process. It is often not clear who is drafting the law, who should be consulted, and what information about the law-making process is going to be made available. There is confusion, even fear, about who is supposed to know or be involved in what. It was surprising to discover, for example, that draft laws are regarded as officially secret until they are presented in Parliament. Access even to information about parliamentary procedures is limited. This runs in parallel to the ‘privishing’ of information, so that many outside the institutions themselves are able to obtain privileged access to information. It seems important then to articulate a process of law making that will be more open and more effective. International pressure is clearly sometimes effective in the legislative process. An example is the International Labour Organization (ILO) addressing labour issues,16 such as forced labour (Layton 2000; Horsey 2011; McLean 2012) and trade unions (see Kyaw Soe Lwin, this volume). The ILO has teeth, in that privileges may depend on compliance with its strictures. Ratification of conventions is proceeding: the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC); the Genocide Convention; and Conventions on the Law of Armed Conflict. As a result of this, a Violence Against Women Law is being considered. An AntiDiscrimination Against Women Law may be introduced. A Child Law is also in the process of being reviewed. As with other states in Asia, and to reduce international pressure on human rights issues (Guyon 1991–92), the National Human Rights Commission was introduced in 2011. Kyaw Min San offered some optimism about the direction of the legal work being done in Myanmar. There is no formal, but rather an informal, legal aid system that is supported by the lawyers’ paid practice. Some lawyers have taken on politically sensitive cases. As an example of the new lawyering, fishing rights in one fishing village in the 16

The Employment and Skill Development Law No 29/2013.

392 Andrew Harding Irrawaddy region were granted to companies, and subsistence fishermen forced to pay in order to fish. The community of fishermen underwent some legal training. Following this, they refused to pay for the fishing rights, and were able to successfully stop the practice of charging for their exercise. There are also legal aid initiatives by political parties, which have formed a network of lawyers who provide free legal consultation, setting days of the week on which their practice is open for free, and using their own homes for consultation and training. There are also efforts to create legal handbooks for communities. Land disputes, usually against the military, private companies or local authorities, are frequent, and almost all lawyers have to deal with them. Not all of these cases can, in practice, be brought before the courts, so the strategies are mediation and negotiation; indeed, there is a clamour for legal options for dealing with land cases. Reflecting Victor Ramraj’s point above about legal education, lawyers have clearly come up with innovative ways to work within their limitations. There are, however, large problems: massive disbarments of lawyers; lack of an independent bar association; and lack of effective legal education and legal knowledge. A discussion facilitated by Helena Whalen-Bridge focused on the fundamental issue of legal education (Myint Zan 2008; Crouch 2013b). Here the same issues arise as with other areas of research and capacity building: what is needed, how can it be delivered, and what approach should be taken? Currently Myanmar’s legal education system is in the poor state to be expected of a country where university legal education has been seriously degraded over half a century. As a result of the previous military regime’s response to student activism, undergraduates have not been allowed on city campuses but only rural campuses, or have been taught via distance education; only postgraduates have been taken at Yangon and Mandalay Universities. Legal education appears to symptomatic of the derelict state of tertiary education generally. From December 2013, however, a new dispensation allows 15 undergraduate students to be admitted to each department of these two universities. There are real issues with regard to language in legal education. Like other subjects, law is taught principally in English, albeit with explanations in Burmese. Some legal materials are only available in English, and some only in Burmese, and a small percentage of materials are available in both languages. New laws are being translated into English, but in an unsystematic way. Most law students, lawyers, and judges do not have a good grasp of English. Some of the laws that are potentially applicable are consequently not available to them. A basic question is, therefore, what is the real priority, legal education or language training? Sources are also a problem. 17 Providing the right solution, or perhaps range of solutions, depends on what type of legal education is appropriate. Helena Whalen-Bridge posed the question of whether we should avoid putting undue emphasis on training lawyers (Kinley and Wilson 2007). Inquiries into access to justice have shown that even in countries with a constitutional requirement for legal representation, there have been obstacles in being able to ensure it. So should Myanmar look at developing a range of fora for dispute resolution? Should the priority for legal education be on community dispute resolution, or judges, or lawyers? What should the content of legal education be? Should it be an education in the rules (black letter law) or in skills (advocacy, negotiation, how to find the law)? The skills/ 17 Matters are improving in this area, however. See, for example, the Online Burma/Myanmar Library’s law section at www.burmalibrary.org/show.php?cat=1713&lo=d&sl=0. See also the chapter by Crouch and Cheesman in this volume.

Law and Development in its Burmese Moment 393 knowledge distinction came in here again. The conclusion was that Myanmar participants should be listened to; and the likelihood is that they would see their deficit as being in knowledge and materials rather than skills as such. We should listen and understand before making any decisions; a first step would be to collect information about the system of legal education in Myanmar. Related to all this is the problem of legal information, as indicated above. The laws of Myanmar very clearly need to be more widely available for everyone. More legal information is needed, including about where to find it.

HUMAN RIGHTS

Despite many positive changes the past hangs heavily on the people of Myanmar and the human rights situation is still troubling. There are, for example, still many cases of torture, and prison conditions remain poor. There are also still many political prisoners, despite the releases referred to earlier. Inter-religious conflict between Buddhists and Muslims reared its ugly head in parts of the country during 2013. In this field of human rights there is first of all the international perspective and pressures to improve the standing of human rights in Myanmar. For Moe Thuzar, looking at the issue from a regional perspective, Myanmar is similar to some other Southeast Asian states, having chosen the easy path on human rights by ratifying CEDAW and CRC but not the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights or the Convention Against Torture; it signed the Forced Labour Convention in the 1950s. Member states in ASEAN often argue that they have little or no capacity to implement treaties domestically, so the issue might be what the international community of donors and partners can do to help Myanmar meet its human rights commitments. In 2011 Myanmar submitted its Universal Periodic Review to the UN Human Rights Council. That it did so was seen by many as a promising turn. It also acknowledged many of the recommendations made by the Council, its representative committing Myanmar to bring domestic legislation into line with the fundamental rights set out in the Constitution. Domestically, the situation is surprising, in that the civil society is far more active and developed than many imagined (Prasse-Freeman 2012). For example Lynette Chua reported that there are more than 100 MSM (men who have sex with men, or gay) activist groups operating in Myanmar. This presents fertile ground for the training of effective activists. Many concerned human rights groups consist of Myanmar diaspora returning to Myanmar from Thailand now that the conditions for human rights activism are improving. Lynette Chua and Elaine Ho discussed the situation of the rights of ethnic and sexual minorities. Myanmar has an overwhelming number of minorities, some of which are in direct conflict with the government (Iyer 2000). One puzzle to which no ready answer seemed available is whether liberal, Western theories of multiculturalism are applicable. Can existing literature on minority rights inform our responses in relation to Myanmar? It is not clear at present how minorities should be classified or what human rights solutions might have to offer, or even whether the language of minority rights is useful. For example does the concept of indigenousness help to understand the situation? Do minorities actually claim minority status? What types of legal provision should address minority human

394 Andrew Harding rights concerns? Yet again, we have to begin with the Constitution. Clearly much will depend on Myanmar’s ability to resolve the long-running wars at its peripheries and the ethnic tensions evident almost everywhere. Two approaches that emerged from the discussion were the study of Myanmar’s ethnic minority self-administered zones or divisions, and the use of the concept of citizenship to explore minority rights and status. Turning to institutions, Melissa Crouch, discussing the Myanmar National Human Rights Commission (NHRC), drew a useful comparison with its Indonesian equivalent Komnas HAM, which was formed in 1993 and developed rapidly after Reformasi, having been the subject of Paris Principlescompliant legislation in 1999 (Crouch 2013a). It will be interesting to see if the Myanmar NHRC evolves in the same way as Komnas HAM. The Myanmar NHRC has been criticised for not complying with the Paris Principles and for its failure to respond adequately to human rights violations but perhaps there may be opportunities for it to strengthen its capacity and legitimacy in the future.

CONCLUSIONS

Thant Myint U has argued that Burma does not, in fact, need assistance from the outside to rebuild its economy and its institutions (Cheesman, Skidmore and Wilson 2012: 32). Yet all reports and studies seem to acknowledge the lack of technical capacity in virtually all areas to deal with current and future challenges. Law is not the least area where this is true. This of course poses a rather large question. In this process of opening, renovation and legal reform, what policy is appropriate with regard to existing law? Does one say that the laws are appropriate to the current level of development, and that the problem is more lack of enforcement than the lack of modernity of such laws? Or does one say that in a new situation it is opportune to vault over legal incrementalism to embrace new legal models? Is the latter too dangerous? Is the former a lost opportunity? There seems to be no clear policy in Myanmar corresponding to either of these approaches. Rather, each issue has been treated pragmatically in the light of current policy requirements, which are themselves often vague or subject to rapid changes. In practice the drafting job has been given to different actors, and it runs the risk of its laws looking more like a patchwork quilt having no obvious design, than a modern legal system thoughtfully tailored to its current and future needs. This conclusion obviously raises issues about the law-making process. Is it possible to do better? With the process of legislation itself, as with the areas that legislation seeks to address, the obvious factor is change. The tendency to ‘privatise’ legislative drafting is quite alarming, when one discovers that the law on Dawei SEZ was farmed out to a foreign law firm. It is presumably the job of Parliament and the UAGO to keep a grip on this process to ensure that emerging law of Myanmar is at least consistent and coherent, otherwise it will lack legitimacy and be ineffective or misunderstood. Although the legislative process has become more open, it seems that still more openness is needed. This implies that legislation for development should be seen not as a series of quick fixes but rather as a considered, careful process that respects existing laws and institutions and is carefully calibrated to a country’s capacity to absorb and implement new legislation. In Myanmar’s case, it is rather the opposite scenario that is observed. For

Law and Development in its Burmese Moment 395 example, the all-important but also controversial Foreign Investment Law went through several drafts and stages before it was finally passed, only to be immediately subjected to amendments, the same problem being apparent even with regulations made under this new law (KPMG 2013). As one looks through the available literature on Myanmar’s transition one is struck by how dated even recent assessments look. Anything before 2010 seems very outdated; even assessments dated 2012 are looking passé. To be fair, these assessors constantly reiterate that the situation is fluid and many unpredictable challenges probably lie ahead. This is still very true at the time of writing this chapter. In particular, the explosion of inter-ethnic violence in the west and central parts of Myanmar (not counting the problems in the far north) in March/April 2013 created uncertainty about the role of the military that was not so apparent even a few weeks prior to these events. On the whole it has seemed less and less likely since November 2010 that the reform process could go into reverse – on that, most commentators seem to agree. But the enormous challenges being faced, and the risks involved, are not to be underestimated. The law may not be Myanmar’s biggest problem but it does lie consistently somewhere at the root of many other problems, and in this sense is extremely important. There seems no doubt that turning Myanmar’s legal system around will be an enormous job. For example, a UNDP project to retrain all of Myanmar’s lawyers under the UAGO will take several years (UNDP 2013). This discursive essay has surveyed how working on legal reform in Myanmar appeared to a group of scholars from various disciplines in October 2012. They met in a moment of conflicting emotions. They experienced the excitement of newness and the possibility of real opening and the fear of a sliding back into authoritarian government if the reform process went badly. They felt the urgency of the need to assist Myanmar while such assistance is possible but also felt daunted by the problems involved in doing research and the sheer enormity of the issues facing Myanmar. These were the elements of our ‘Burmese moment’. For the world at large, the significance of this moment may not be apparent for some time – but there is, in fact, everything to strive for. It is the hope of this author that if we recognise the limitations on our ability to assist Myanmar, if we engage with the people and the process in the manner indicated here, realising that we must begin with conversations not instructions or prescriptions, if we understand and respect that which has already been done, and if we regard this as a long process of mutual discovery, then we may be able to say in the years ahead that we did the best that could have been done for Myanmar and for the advancement of the idea of global partnership for development. REFERENCES Amnesty International (2012) ‘The Serious Human Rights Situation in Myanmar Requires the Human Rights Council’s Continued Attention’ (Written statement to UN Human Rights Council, 13 February 2012), ASA 16/001/2012. Butt, S (2007) ‘The Constitutional Court’s Decision in the Dispute between the Supreme Court and the Judicial Commission: Banishing Judicial Accountability?’ in H McLeod and R MacIntyre (eds), Indonesia: Democracy and the Promise of Good Governance (Singapore, ISEAS). CALS (2012) Directions and Determinants in Myanmar/Burma’s Legal Reform Process: A Scoping Workshop (Singapore, CALS).

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398 Andrew Harding Reuters (2013) ‘Myanmar Parliament to Review Controversial Constitution’, 15 March 2013, www. reuters.com/article/2013/03/15/us-myanmar-constitution-idUSBRE92E0CP20130315. Rittich, K (2006) ‘The Future of Law and Development: Second Generation Reforms and the Incorporation of the Social’ in D Trubek and A Santos (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge, Cambridge University Press). Saffin, J (2012) ‘Where are Burma’s Lawyers in the Transition?’, New Mandala, ANU, July, http:// asiapacific.anu.edu.au/newmandala/2012/07/18/where-are-burma%E2%80%99s-lawyers-inthe-transition/. Southalan, J (2006) ‘Burma and the Common Law: An Uncommon Question’, www.thailawforum. com/articles/john-southalan.html. Tamanaha, B (1995) ‘The Lessons of Law and Development Studies’ 89 American Journal of International Law 470. Taylor, R (2009) The State in Myanmar (London, Hurst & Co). —— (2012) ‘Myanmar: From Army Rule to Constitutional Rule’ 43(2) Asian Affairs 221. Tee Tee Cho (1997) ‘Environmental Law Developments in the Union of Myanmar’ 1 Singapore Journal of International and Comparative Law 609. Thant Myint U (2012) Where China Meets India: Burma and the New Crossroads of Asia (London, Faber & Faber). Tin Htut Oo (2012) ‘Devising a New Agricultural Strategy to Enhance Myanmar’s Rural Economy’ in N Cheesman, M Skidmore and T Wilson (eds), Myanmar’s Transition: Openings, Obstacles and Opportunities (Singapore, ISEAS). Transparency International (2012) Corruption Perception Index, www.ey.com/Publication/ vwLUAssets/2012_TI_CPI/$FILE/2012%20TI%20CPI.pdf. Trubek, D (2001) ‘Law and Development’, Encyclopedia of Social and Behavioural Sciences (Oxford, Elsevier Science). —— (2011) ‘Law and Development in the 21st Century’ in J McAlynn and C Peijovic (eds), Law and Development in Asia (London, Routledge). Trubek, D and Santos, A (eds) (2006) The New Law and Economic Development: A Critical Appraisal (Cambridge, Cambridge University Press). Tun Shin (2013) Why Invest in Myanmar? And Other Notable Legal Articles (Yangon, Wisdom House). UNDP (2013) ‘UNDP Partners with IDLO to Support Myanmar’s Union Attorney General’s Office in Designing a Long-Term Training Framework’, www.undp.org/content/myanmar/en/home/ presscenter/pressreleases/2013/11/13/undp-partners-with-idlo-to-support-myanmar-s-unionattorney-general-s-office-in-designing-a-long-term-training-framework/. Williams, D (2008–09) ‘Constitutionalism before Constitutions: Burma’s Struggle to Build a New Order’ 87 Texas Law Review 1657.

LAWS Dawei Special Economic Zone Law No 17/2011 (State Peace and Development Council Law) Employment and Skill Development Law No 29/2013 (Pyidaungsu Hluttaw Law) Labour Organisation Law No 7/2011 (Pyidaungsu Hluttaw Law) Law on Peaceful Assembly and Procession No 15/2011 (Pyidaungsu Hluttaw Law) Myanmar Special Economic Zone Law No 8/2011 (State Peace and Development Council Law)

Law and Development in its Burmese Moment 399 LIST OF WORKSHOP PARTICIPANTS Marcus Brand, UNDP, Bangkok Connie Carter, Royal Roads University, Canada Pavin Chachavalpongpun, Kyoto University Nick Cheesman, Australian National University Simon Chesterman, Law Faculty, National University of Singapore Lynette Chua, CALS, National University of Singapore Alistair Cook, RSIS, Nanyang Technological University, Singapore Melissa Crouch, CALS, National University of Singapore Andrew Harding, CALS, National University of Singapore Elaine Ho, National University of Singapore Martin Krygier, University of New South Wales, Australia Kyaw Min San, Lawyer, Yangon Kyaw Zaw Naing, Myanmar Press Council Moe Thuzar, ASEAN studies, Institute of SE Asian Studies, Singapore Peter Morley, Lawyer, Beijing, China Myint Zan, Multimedia University, Melaka, Malaysia Dominic Nardi, University of Michigan, USA Daniel Puchniak, CALS, National University of Singapore Eugene Quah, legal consultant, Yangon Victor Ramraj, Law Faculty, National University of Singapore Teresita Del Rosario, CALS, National University of Singapore Marc Spitzkatz, Konrad Adenauer Foundation Bobbie Sta. Maria, Lawyer, Earthrights, Chiang Mai, Thailand Tin Maung Maung Than, Institute of Southeast Asian Studies, Singapore Sean Turnell, Macquarie University, Australia Bridget Welsh, Singapore Management University

Index Please see under entries for individual countries for specific topics relating to that country Burmese names are listed in full name accountability Anti-Corruption Committee 147 Central Bank of Myanmar Law 189 Companies Act 1914 reform 230–1 constitutional writs 141–55 executive 9, 141–6, 155 police 278, 284 accounting standards 234, 235 accounts, publication of 259 acculturation 369 administrative law 141–2, 144, 150, 155 advocacy coalition networks (ACN) 330 agenda-setting 10, 168, 169–70, 173 Alatas, Ali 350–3 Alaungpaya 35, 62 All Burma Trade Union Congress (ABTUC) 291 Amyotha Hluttaw see Upper House (Amyotha Hluttaw) Ananda 69–70 Anawratha 35 Anglo-Burmese Wars 35–6 Anti-Fascist People’s Freedom League (AFPFL) 290–1 Antons, Christoph 5 Aquinas, Thomas 67 Arab Spring 364 arbitration 14, 294, 296 Aristotle 67 ASEAN (Association of Southeast Asian Nations) 359–73 see also ASEAN Charter ASEAN Human Rights Declaration (AHRD) 359–60, 370 ASEAN Intergovernmental Commission on Human Rights (AICHR) 359–60, 370–2 ASEAN Unit in Myanmar ministries 370 ASEAN way 360 Bangkok Declaration 1967 363 chair of ASEAN in 2014, Myanmar as 16, 176, 351–3, 366, 373, 380 Community Councils 369 condition of membership, democracy as 363, 373 constitution-making and reform, comparative analysis of 176–7 criticism of Myanmar 16, 351, 366–8 date of Myanmar joining 46 democratisation 16–17, 360–5, 372–3 development projects, control of 136 Disclosure Standards Scheme 251 elections 359–60, 364 Eminent Persons Group 351–2, 371 Free Trade Area 370, 380, 389

geographical framework 362–3 individual/human rights 16, 343, 351–2, 359–61, 371, 373, 393 Industrial Cooperation Schemes 370 institutions 360, 363–5, 369–71, 373 military 17, 362, 368 National Secretariat 369 neighbourhood effect 16 political participation, right of 359–60, 364 rule of law 359, 363–4 Saffron Revolution 16, 176, 367, 372 Senior Law Officials Meeting 387 socialisation 363–4, 369–71 Summit 360, 369 transitions 16–17, 176–7, 343, 345–6, 350–3, 360–4, 372–3 ASEAN Charter 351, 365–72, 373 breach 16, 366–7, 368–9 entrenched quasi-democracy 368 future of Myanmar 368–72 implementation 359 individual/human rights 371 non-interference, principle of 371 suspension 369 Asian economic crisis 344, 346–7, 350, 354 Asian Law Centre (University of Melbourne) 4 assault 7, 79 Attlee, Clement 38 Attorney General see Office of the Attorney General (OAG) Aung Htoo 370 Aung Ko, U 153 Aung Naing Oo, U 230 Aung Pe, U 43 Aung San 37–9, 311, 346 Aung San Suu Kyi 45–6, 50, 99, 111, 119, 122–3, 129, 138, 161, 176, 186, 202–4, 208, 214, 216, 283, 311, 346, 349, 351, 367, 379–80, 382–3, 385, 387 Aung Than Tun, U 23, 26–7 Aung Toe, U 98 Australia 4, 13, 172, 227–8, 230, 232–3, 235 automated topic analysis 100–2 Ba Kyaing, U 27, 28 Ba Maw 37 Ba U 155 Bachelet, Michelle 163 Badon 62, 67, 70 Bagan, Kingdom of 34 Bagshawe, Euan 73

402 Index Bainimarama, Frank 171 Bali Democracy Forum 370 Bangladesh 251, 254, 364–5, 369 banks 71–2 see also Central Bank of Myanmar Basel III 190 Bayesian models 103–4 Bayinnaung 35, 63 Bayley, David 284 Benjamin, Walter 79 Bentham, Jeremy 64, 78, 90 Bernard, Charles 71 Bhatika-Tissa 65 bias 96, 100–1 bibliographies 29 Biddulph, Sarah 5 bona vacantia (heirless property) 69 booksellers 29 border security 279 Borges, Jorge Luis 67 Bosnia and Herzegovina 174 Brand, Marcus 382, 384–5, 387 Britain see British colonialism; British India; United Kingdom British colonialism see also British India Buddhist Burmese law 6, 36, 59, 64–5, 68, 71–2, 386 common law 33–4, 36–8, 345, 385–6 Companies Act 1914 reform 12, 255, 237–8 customary law, recognition of 36–7 equity capital market law 13, 246 ethnic nationals/minorities 38–9, 165 human body in Burma Law Reports 77–90 industrial disputes 289–90 Kachin military 306–7 law reports 24 laws and regulations, publication of 21 legal development 33–4, 36–9, 52, 381 police 272–4, 276, 281–2 prospectus regulation 246 transition 345–7 British India Anglo-Burmese Wars 35–6 bilateral relations 369 China, Myanmar’s position between 344, 389 civil service 73 Codes 6, 33–4, 36–8, 64–5, 68, 71, 78–9, 82–4, 87–8, 90 Companies Act 1914 reform 225 Constitution 1947, model for 168 contract 68, 257 Governor, executive power of 37 human body in Burma Law Reports 78–9, 82–4, 87–8, 90 law and development 380 promoters, definition of 254 reserved topics 64–5 Browne, Horace 64 Brunei 360, 364 Buddha, Gautama 60–1, 69, 274 Buddhist Burmese law 6–7, 35, 59–73 Ajjuka’s case 69–72 arguing cases 63–4

case law 6, 7, 63–4 codification 6, 7, 59, 63–5, 68, 72 colonialism 6, 36, 59, 64–5, 68, 71–2, 386 dhammathats (Burmese law texts) 6, 34–5, 60, 62–9, 97 economic future 71–2 family law 64 hermeneutics 67–8, 72 Indian Codes 6, 64–5, 68, 71 inheritance 64, 69–72 Khandaka (Pali) 60 language 59–60 Lawkabala Taya as Upholders of the Compass 68 laws and regulations, publication of 23 lists 62–4, 66 Maharajathat 60, 63 Pali scriptures 59–60, 62 Patimokkha (Pali) 63 pyattôns (law reports) 60, 67, 69 rajathat (Pali) 60, 62, 70 religion 64 Suttavibhanga (Pali) 60, 63 theft law 60–72 tradition (1885), transition from 59, 64, 73 Vinaya literature 35, 60–72 Buddhists/Buddhism see also Buddhist Burmese law constitution-making and reform, comparative analysis of 165 culture and traditions 349, 384, 386 ethnic nationals/minorities 165, 344–5 Kachin Christianity 307 Muslims, conflict with 146, 166, 195–6, 393 police 274, 280, 283 state religion, as 41, 307 transition 344–5, 348 vote, right to 209 Burma Lawyers’ Council (BLC) 25 Burma Socialist Programme Party (BSPP) elections 202 industrial disputes 292–3 military 41 National Unity Party, replacement with 44 People’s Judges 42, 97, 247 Supreme Court case topics from 2007 to 2011 97, 100 Burma Studies Group (BSG) 29 Burma Workers and Peasants Party (BWPP) 291–2 Burmans Buddhist Burmese law 64 colonialism 38, 88, 90, 118, 120, 165–6 ethnic states 43, 51, 88 executive 135, 307 independence 38, 118, 165–6 language 120, 135 migration policies 310 origins of Burmese law 34 Panglong Agreement 39 parliament 40, 43, 51, 136–7 Burmese Buddhist law see Buddhist Burmese law Burmese Way to Socialism 41–2, 68, 247, 292, 379 by-elections 2012 11, 201–2, 204–5, 211, 215, 217–20, 380

Index 403 Callahan, Mary 272–3 Cambodia 170, 174, 196, 216, 329, 351, 360, 363–4, 366 capacity Blue Book on Indonesia-Myanmar Capacity Building Partnership 353 Central Bank of Myanmar Law 192 Companies Act 1914 reform 12, 229, 233, 237, 239 constitution-making and reform, comparative analysis of 174 transition 353 Carter, Connie 389 Carter, Jimmy 216 ceasefires see Kachin Independence Party/ Organisation (KIA/O) 2011 ceasefire breakdown censorship 21, 47, 72–3, 163, 298, 352, 364 census 2014 211, 219 Central Bank of Myanmar accountability 189 autonomy 192–3 banking supervision 189–90 Basel III 190 capacity constraints 192 Central Bank of Myanmar Law 183, 188–93, 198, 265 Daiwa Securities and Tokyo Stock Exchange, memorandum of understanding with 248 demonetisation 191–2 entry requirements 191 experts 188 Financial Institutions Law 190 foreign banks 191 foreign exchange 189, 192–3 government bonds 189 Governor and Deputy Governors 188–9 independence 10, 188–9, 192–3 Myanmar Economic Bank 192–2 President, appointments by 259 security of tenure 192 term of office 189, 192 transparency 189, 191 certiorari (quashing orders) 143–4, 147–50, 154, 391 Chachavalpongpun, Pavin 380 Chan Htoon 168 charismatic leaders 346, 353 see also strongman rule Charney, Michael 29 Charter of League of Arab States 368 Cheesman, Nick 8, 45, 155, 281, 384, 386–7 Chesterman, Simon 382, 385 Chief Court 24, 26–7, 42, 68, 78, 97, 144–5 children 391, 393 Chile 10, 163–5, 169 Chin/Chin State 39, 134, 137, 165-6, 307 China ASEAN 362 bilateral relations 369 foreign investment 389–90 India, Myanmar’s position between 344, 389 Indonesia 343, 350 internally displaced persons 325–6, 328–9, 331–2, 335

Kachin State, humanitarian action in 325–6, 328–9, 331–2, 335 KIA/O 2011 ceasefire breakdown 307, 310, 314–16 law and development 380 Myitsone dam project 314, 380 publications 5 Refugee Convention, as non-signatory to 326 Special Economic Zone 196 Chit Maung, U 27 Christianity colonialism 41 conflicts 306, 316, 322, 345 constitution-making and reform, comparative analysis of 165 equity 67 ethnic nationals/minorities 135, 165, 306–7, 316, 322, 344–5 Kachin State 165, 306–7, 316, 322, 345 Muslims, conflict with 345 transition 344–5 Chua, Lynette 4, 393 Cicero 67 citizenship 167–8, 173, 394 civil and political rights 373 civil proceedings 98, 107–11, 147–9 civil service 73, 129 civil society see also non-governmental organisations (NGOs) Companies Act 1914 reform 226, 239 constitution-making and reform, comparative analysis of 161, 163, 165, 167–8 elections 213, 214–15, 220 individual/human rights 393 Kachin State, humanitarian action in 15, 323–16 law and development 390 NGOs 3, 15, 209, 323, 324–36 police 282 transition 348–9, 354 civilian protection see Kachin State, civilian protection and humanitarian action in civilianisation of security 271–85 civilians and combatants, distinction between 327 codification Buddhist Burmese law 6, 7, 59, 63–5, 68, 72 Burma Code 21, 36, 81–2, 89–90, 149–50, 225, 237–8, 257, 381 case law, replacement of 6, 64 India 6, 33–4, 36–8, 64–5, 68, 71, 78–9, 82–4, 87–8, 90 Cold War 343, 361 collective bargaining 296–9 colonialism 345–7 see also British colonialism; British India common law colonialism 33–4, 36–8, 345, 385–6 Companies Act 1914 reform 225–37 constitutional writs 142–4, 154–5, 391 equity capital law 13, 246 legal development 17, 33–4, 36–8, 381–2, 385–8 precedent 9, 33, 148–50, 247, 385 rule of law 385–8

404 Index common law cont. Supreme Court case topics from 2007 to 2011 97, 99 Commonwealth, rejection of 34, 39, 142 Communist Party of Burma (CPB) 14, 39, 52, 291–2, 347, 364 Companies Act 1914 225–39 accountability 230–1 background 225–8 British law, legacy of 12, 225, 237–8 Burma Code 225, 237–8 capacity 12, 229, 233, 237, 239 Commonwealth/common law countries 225–37 Companies Act 2006 (UK), criticism of 228 comparative and international perspective 12, 225–39 constitutional documents 226, 232, 235 corporate governance 230–1, 232–3 costs and complexity 227, 228, 229, 231–2, 236, 237–8, 241 design of reform process 240–1 directors 226, 230–3, 254 disclosure 231–3, 258 disuse, parts fallen into 12, 226 drafting 236–7, 238, 240 equity capital law 248, 263 existing laws and practices, examination of 237–8 experts 240–1 financial reporting 234 Foreign Investment Law 12, 184, 237–8, 241 Framework for Economic and Social Reforms 238 government departments and ministries, collaboration between 241–2 guarantee, companies limited by 226 guiding principles 229, 231–7, 242 incorporation 226, 232 Indian Companies Act 1913 225, 246 insolvency 234 institutions 12, 229, 233–5, 237, 239 international standards 230–1 judicial capacity 233, 237 memorandum and articles of association 226 misleading or untrue statements, liability for 253–6, 263 modernisation 227, 235–6 multinationals 236 nationalisation 386 principled approach 12, 225, 228–37, 242 private companies 12–13, 226, 232, 246 prospectus regulation 12, 249, 251–3, 265–6 public companies 12–13, 226, 232, 248–9 public consultation 240–2 reform 225–42 registrar 234, 235 regulatory framework 234–5, 239, 242 Securities Exchange Law 2013 237, 241 share capital 226, 235 share warrants 235 shareholder engagement 231 small and medium-sized enterprises 231–2, 234–5, 237 Special Companies Act 1950 237

steering committees 240–1 stock exchange 235 sub-committees 240 technology 231, 235–6 transparency 12, 230–1, 234, 235 wider context of reform 237–9, 242 winding up 226 constituent assemblies 168–74 Constitution 1947 amendments 40–1 constitutional writs 40, 141–4, 146, 153 ethnic nationals/minorities 40–1, 43 independence 39–41, 43, 168 individual/human rights 40 international models 168, 174 publication 23 socialist rule 96–97, 144 textbooks 27 Constitution 1974 constitutional writs 145, 151 drafting 38, 42 Eastern European socialist constitutions, influence of 168 elections 202 hermeneutics 68 international models 168, 174 judicial independence 43 Lower House, interpretation by 145 publication 22, 23 referendum 42, 168 separation of powers 43 socialist regime 42–3, 97 textbooks 27 Constitution 2008 17, 117–38 administrative units 206–7 amendments 11, 50–1, 134, 204, 208, 216–17, 220, 382–3 background and history 118–20 constitutional principles 168 Constitutional Review Committee 50–1, 355 Constitutional Tribunal 49–50, 121, 207 constitutional writs 9, 141, 145–53 criminal offence of criticising drafting 46, 48 culture 382–5 decentralisation 206–7 deficiencies 117–38, 159–60 disciplined democracy, Myanmar as 117, 360 drafting 8–9, 44–6, 49, 168, 384 economic reforms 183 elections 11, 202–10, 216–18, 220 entry into force 47 ethnic nationals/minorities 8–9, 51–2, 118–20, 122, 133–8, 161 executive 49, 121, 159 flexibility 17, 382–5 fraud 203 gender 9, 119, 129–30, 138 Green book (2008 Constitution) 47 individual/human rights 119, 130–3, 138 international delegations 343 international models 117, 168, 174 judicial independence 49–50, 99

Index 405 KIA/O 2011 ceasefire breakdown 309, 311, 315, 320 legitimacy 47, 159–62, 171–2, 354 Lower House 47–50, 52, 206–7 military 9, 47–53, 117–22, 137–8, 159, 161, 277, 351, 371, 383 National Convention 355 NLD 46, 161, 383 parliament 47–50, 52, 120, 206–7, 351, 371 police 285 prerogative writs 391 President 50–1, 122–9, 206–8 publication 23 referendum 46–7, 117, 168–9, 203, 217, 311, 351 research 384–5 review 382–4 rigidity 382–5 separation of powers 49, 384 SLORC/SPDC regimes 355 strongman rule 119, 120 transition 8–9, 98–9, 351–2, 354–5, 371 constitution-making and reform, comparative analysis of 159–77 agenda-setting 10, 168, 169–70, 173 amendment of constitutions 9, 16, 161–5, 168, 172, 177 ASEAN, role of 176–7 citizenship 167–8, 173 civil society 161, 163, 165, 167–8 constituent assembly 168–74 cultural diversity 167 drafting 168–70 ethnic nationals/minorities 162, 165–8 expertise 168, 170, 175–6 founding moment, constitution-making as 162 fundamental law, final approval as 170–2 guiding principles 160, 164, 167, 169–70 inclusiveness 10, 161, 165–8, 170–2 individual/human rights 167, 174, 175, 177 institution-building 174, 176 interim constitution 169, 170 international involvement 9, 10, 160, 174–7 legitimacy 159–61, 166–8, 170–3, 175, 177 national ownership/identity 160, 166–8, 175–6 new constitutions 9, 161–4, 170, 173, 177 options for process 168–73 public knowledge and participation 160, 169, 171, 172–3 referendums 169, 173 regional engagement 9, 10 religion 162, 165 transition to democracy 10, 160–5, 176–7 Constitutional Tribunal appointments 124–5, 212 Constitution 2008 49–50, 121, 207 constitutional writs 153 constitutionalism 8 elections 218 establishment 371 impeachment 50, 99, 124–5, 132, 214, 383 individual/human rights 132 judicial independence 383

language 26 legitimacy 383–4 military, review of 121 parliamentary committees, status of 214 President 123–5, 212 resignation of entire bench 50, 99, 214, 383 resources 125 Supreme Court 132 term of office 125 website 26 constitutional writs 1948–1962, parliamentary democracy during 9, 141 1972–2010 142, 144 1974–1988 144–5 2011, period after 9, 141–2, 145–54 absence of writs, period of 141, 144–5 accountability 141–55 administrative law 141–2, 144, 150, 155 administrative review 141 Applications Review Board, composition of 154 cases, examples of 147–51 certiorari (quashing orders) 143–4, 147–50, 154, 391 civil law cases, examples of 147–9 common law 142–4, 154–5, 391 Constitution 1947 40, 141–4, 146, 154 Constitution 1974 145, 151 Constitution 2008 9, 141, 145–53 constitutional dictatorship 144–5 Constitutional Tribunal 153 criminal law cases, examples of 149–51 executive action, accountability of 9, 141–6, 155 habeas corpus 9, 96, 98, 142–3, 146, 151–2, 155, 391 history of development 9, 141–2 individual/human rights 142–5, 152 judicial activism 142–4 judicial independence 9, 141–2, 145–6, 150, 153, 155 language 151 mandamus 149, 154, 391 military rule 144–6, 152 Myanmar/Burma Law Reports 142, 144, 147, 150–3, 155 number of cases 98, 100, 143–4, 147 parliament 9, 141, 144, 153–4, 155 politically sensitive cases 142 precedent 9, 148–50 procedures, parliamentary debates over 141–2, 155 prohibition, writ of 148, 154, 391 public discussion 146–7 quasi-judicial power 142 quo warranto 154, 391 reintroduction 9, 141, 391 separation of powers 9, 145, 153, 155 socialist system 142, 144–5 Supreme Court 98, 100, 107, 110–11, 142–55 Union Election Commission 153 unreported cases 9, 142, 146, 151–5 Writs Procedure Bill 2013 148, 153–4, 155 constitutionalism 8, 17, 39–41, 44–7, 378, 384, 387 contract 8, 12, 68, 107–11, 253–7, 263

406 Index Convention on the Elimination of All Forms of Discrimination against Women 119, 206–8, 391, 393 Convention on the Rights of the Child 1989 391, 393 Cook, Alistair 385 corporate governance 230–1, 232–3 corporate rescue 234 corporate social responsibility (CSR) 389 corruption Anti-Corruption Committee 147 double cropping 45 foreign investment 387 kingdoms 35 legal profession 391 police 272–4, 276, 281–2 rule of law 387 Supreme Court 247 transition 348, 352 costs 99, 109–10 Court of the Judicial Commissioner in Mandalay 24 Courts-Martial Appeal Court (CMAC) 24 Cover, Robert 77 crimes against humanity 119 criminal offences see also police Constitution 2008, drafting of 46, 48 constitutional writs 149–51 Criminal Procedure Rules 21 death sentences, confirmation of 98 defence, right to a 132 detention without a hearing 131–2 double jeopardy 131–2 Election Commission 11 fair hearing, right to a 132 human body in Burma Law Reports 7, 78–90 market abuse 260 political crimes 273, 280–1 political opponents, prosecution of 44–5, 131–2 prospectus regulation 252 rape 7, 84–6, 89–90 Special Criminal Courts’ Appeal Court 24 Supreme Court case topics from 2007 to 2011 8, 95, 98, 107–11 Transnational Organised Crime Convention 275 cronyism 10, 186–7, 296 Crosthwaite, Charles 59 Crouch, Melissa 21, 394 Cula-Samana 65 culture Buddhist Burmese law 6 Constitution 2008 382–5 diversity 167 economic, social and cultural rights 359 ethnic nationals/minorities 135 human body in Burma Law Reports 7 individual/human rights 130–1 multiculturalism 393 police 281–2 transition 344–5 customary international law 23 customary law, recognition of 36–7 Cyber Crime Division 275 Cyclone Nargis 47, 202, 343, 348, 352

Daiwa Securities, Central Bank of Myanmar and Tokyo Stock Exchange, memorandum of understanding between 248 Dalal, JH 257 damages 66, 254, 256–7, 295, 297 Darian-Smith, Eve 4 Dawei Special Economic Zone 194–5, 394 Dean, Karin 308, 310 death sentences, confirmation of 98 deceit 257–8 decentralisation 206–7 decision-making rules 172–3 democracy see also transition to democracy ASEAN 360–4, 372–3 contagion effect 363–4 disciplined democracy, Myanmar as 117, 277, 284, 343, 360 elections 201, 213 entrenched quasi-democracy 368 individual/human rights 372 peace and democracy, relationship between 306 regional organisations 361, 363–5, 370 Supreme Court case topics from 2007 to 2011 96–7 demonetisation 43, 191–2, 295 Deng, Francis 330 departments see ministries/departments Derrida, Jacques 79 detention conditions 393 habeas corpus 9, 96, 98, 142–3, 146, 151–3, 155, 391 hearing, without a a 131–2, 332, 336 Jail Manual 26 Kachin State, humanitarian action in 332, 336 political prisoners 47, 98, 101, 111, 121, 131–2, 298, 343–4, 352, 380, 393 developing countries 5 development see law and development; legal development, layers of dhammathats (Burmese law texts) 6, 34–5, 60, 62–9, 97 dictionaries 28 digests 6, 24–5 Directorate of Investment and Company Administration (DICA) 248–50, 252, 259 directors 226, 230–3, 254, 256 Dirichlet distribution 103–4 Disabilities Convention 206 disciplined democracy, Myanmar as 117, 277, 284, 343, 360 disclosure Companies Act 1914 231–3, 258 disclosure-based regulation 12, 249–51, 253, 263 market abuse 262 prospectus regulation 12, 249–51, 253, 263 Securities Exchange Law 258–9 Displacement Solutions 28 Djamin, Rafendi 371–2 Djani, Dian Triansyah 371 Dosch, J 361 double jeopardy 131–2

Index 407 drafting legislation Companies Act 1914 reform 12, 236–7, 238, 240 Constitution 1974 38, 42 Constitution 2008 8–9, 44–6, 49, 168, 384 constitution-making and reform, comparative analysis of 168–70 President, powers of 48 privatisation 17, 394 drugs 271, 275, 279, 281 Dunkley, Herbert 24–5 Dutch civil law model 345 E Maung 37, 65, 68 East Timor 329 Eastern Europe 168, 364 economic reforms, legislative foundations of 183–98 Central Bank of Myanmar Law 10, 183, 188–93, 198, 265 foreign exchange restrictions 183, 197, 198, 265 Foreign Investment Law 10, 13, 183, 184–7, 198 historical context 10 legal profession 13 market economy 11, 183, 198 Microfinance Law 10, 183, 193–4, 198 Special Economic Zone Law 10, 183, 194–7, 198 economic, social and cultural rights 359 education see legal education; training and education; universities Edwards, Penny 89 effective remedy, right to an 212 elections actors in transition 213–16 appeals 211 ASEAN 359–60, 364 autocratisation, leading to 201 by-elections 2012 11, 201–2, 204–5, 211, 215, 217–20, 380 campaigns 211–12 candidates, registration of 210 census 2014 211, 219 Code of Good Practice in Electoral Matters 205, 210, 219 constituent assemblies 170–1 Constitution 1974 202 Constitution 2008 11, 202–10, 216–18, 220 contesting elections 212–13 democratisation by elections, theory of 11, 201, 213 effective remedy, right to an 212 Election Commission 11, 153, 204, 210–13, 215, 219–21 electoral system choice 217–18 Electoral Tribunal 212 European Union 11, 215 first-past-the-post system 204, 208, 217–18 freedom of assembly and association 202, 212, 213 freedom of expression 212, 213 gender 119 general election 1990 11, 46, 138, 349, 363 2010 11, 201–5, 209–10, 214–16, 219, 309, 311, 379–80

history 11, 202–4 Human Rights Committee (UN) 205, 210, 219 individual/human rights 205–6, 209–10, 212, 359–60 institutions 201–2, 206–7, 213, 218 international engagement 11, 15, 203–5, 213, 215–16, 219–21 International Foundation for Electoral Systems 215 Inter-parliamentary Union (IPU) Declaration on Criteria for Free and Fair Elections 206 law and development 380 legal framework 11, 202, 205–13 lists, inaccuracies in voter 211 long-term processes 202 Lower House 42–3, 47, 207–8, 211–12, 216, 218, 351 management structures and procedure 11, 209–10, 219 Members of Parliament, assertiveness of 11, 213–14 military 46, 203 multi-party election (1990) 11, 202 National Brotherhood Forum 204 National Democratic Force (NDF) 217 NLD 11, 46, 138, 202–4, 217–18, 349, 363, 379–80 observation/monitoring 11, 174, 210, 213, 214–15, 220–1 parliament 11, 207–8, 213–14, 218–20 political parties 202–4, 208–9, 213 President 39–40, 207–8, 218, 220 proportional representation 217–18 reform agenda 201–21 registration of voters 210, 211, 219–20 religious orders, exclusion of members of 209 secret ballots 360 SLORC/SPDC regimes 203 transition 11, 160, 212, 213–20 transparency 204, 210–11, 220–1 turn-outs 202 universal and equal suffrage 209, 217–18, 360 Universal Declaration of Human Rights 205, 217 Upper House 47 USDP 11, 203, 214, 217 electronic communications 232, 236 elites 86–7, 164–5, 363, 373 Ellesmere, Lord (Egerton, Thomas) 67–8 Emmerson, D 361, 368 employment see industrial disputes, legal perspectives on epieikeia (Pali) 67 equity 67–8 equity capital market law 12–13 see also prospectus regulation; Securities Exchange Law British law, legacy of 13, 246 Burmese Way to Socialism 247–8 common law system 13, 246 companies 246–9 comparative analysis 246, 249, 263 Foreign Investment Act 247, 251 historical development of legal system 13, 246–8 judges and lawyers, restrictions on role of 247

408 Index equity capital market law cont. ministerial policies, influence of 13, 246–7 private companies 246 public companies 12–13, 246 ethnic nationalities/minorities see also Burmans; Kachin State; Shan/Shan State Buddhists 165, 344–5 Chin/Chin State 39, 134, 137, 165–6, 307 Christianity 135, 165, 306–7, 316, 322, 344–5 citizenship 168 classification of major groups 165 colonialism 38–9, 165 Constitution 1947 40–1, 43, 347 Constitution 2008 8–9, 51–2, 118–20, 122, 133–8, 161 constitution-making and reform, comparative analysis of 162, 165–8 customary law, recognition of 36–7 development projects, control of 135–6 differences between states 134 division of powers 134–6 elections 204 federalism 118, 119–20, 134–5, 138, 166, 168 Foreign Investment Law 389 genocide 120 governors, proposal for election of 133–4 individual/human rights 152, 372, 393–4 Karen 40, 43, 118, 120, 136–7, 165–6, 346–7 KIA/O 2011 ceasefire breakdown 15, 307, 310–12, 315, 319–20 languages 135 law and development 380 legislative powers 135, 136–7 military 122, 133–4 Ministers of National Race Affairs, appointment of 51 multi-ethnic/multi-religious populations 162, 165 National Brotherhood Forum 204 national identity 168 natural resources 120, 135–6 Panglong Agreement 15, 39, 307, 311–12 President, domination of state and region governments by 133–4 resistance armies/insurgents 118, 133–5, 138, 346 resource-sharing and revenue-sharing 135–6 secession 40, 120, 166, 319, 346 self-administered zones or divisions 51–2, 394 self-determination 118, 119–20, 133, 165–6 United Nationalities Federal Council 138, 324 Upper House 136–7, 207 ethnography 387, 388 European Commission for Democracy through Law (Venice Commission) 205, 210, 219 European Union ASEAN 372 elections 11, 215 isolation, policy of 369 KIA/O 2011 ceasefire breakdown 315 Market Abuse Directive 262 transitions 368 executive see also ministries/departments; Presidency

accountability 9, 141–6, 155 Constitution 2008 121, 159 constitutional writs 9, 141–6, 155 dominance 159 elections 214 equity capital market law 13, 246–7 Government Gazette 22, 29 judiciary 49 Kachin State, humanitarian action in 15, 330 military control 121 President 127, 206 publications 27 regions and states 9, 219 Extractive Industries Transparency Initiative (EITI) 389 Fabianism 80 fair hearing, right to a 132 family law 64 federalism 118, 119–20, 138, 166, 168, 320 Federation of Trade Unions of Burma (FTUB) 297 Ferran, A 234–5 Fiji 170, 171–2, 174 Financial Institutions Law 190 first-past-the-post system 204, 208, 217–18 forced labour 296, 336, 391, 393 foreign exchange 183, 189, 192–3, 197, 198, 265 Foreign Investment Law 10, 13, 183, 184–7, 198 ASEAN Free Trade Area 389 Companies Act 1914 reform 12, 237–8, 241 conditions for investment 388–90 equity capital market law 247 ethnic nationals/minorities 389 joint ventures 184–5, 388 land ownership 184 law and development 380, 383, 395–6 Myanmar Investment Commission 185, 186–7, 239, 247, 388 passing, difficulties in 186–7, 380, 383, 388, 395–6 protectionism 186 service companies, permits to 247 Special Economic Zone Law 195 tax and investment incentives 184, 187, 247, 388 types of investment 185–6 workforce, Myanmar citizens in 184–5 Foucault, Michel 67 Four Eights protests 44, 119, 349 fraud 203, 256–8 Free Burma Rangers 336 Free Trade Area (FTA) 370, 380, 389 freedom of assembly and association 131, 202, 212, 213, 296, 380 freedom of expression 131, 212, 213 Furnivall, John S 39, 72, 80, 96–7 gender anti-discrimination laws 391 CEDAW 119, 206–8, 391, 393 Constitution 2008 9, 119, 129–30, 138 discrimination, prohibition of 129 elections 119 evidence 7, 84–6

Index 409 human body in Burma Law Reports 7, 78, 84–7, 89–90 men, rule of 9, 119, 129–30 ministries 9, 129 parliament 9, 129–30, 207–8 police 274 publications 28 rape 7, 84–6, 89–90 quotas 129–30, 207–8 sentences, reduction in 85–6 sexualised bodies 89 general election 2010 11, 201–5, 209–10, 214–16, 219, 309, 311, 379–80 Geneva Conventions, ratification of 391 genocide 120, 391 Gessner, Volkmar 5 Gethin, Rupert 63 Gillespie, John 5 global economic recession 110 good governance 359 Goodman, R 369 government see executive government bonds 189 Greece 368 Guatemala 368 Guha, Ranajit 83 Gwe Kalay, U 71 Gywe, Tha 67 habeas corpus 9, 96, 98, 142–3, 146, 151–3, 155, 391 Habibie, BJ 350 Harding, Andrew 5 Harvey, Anna 101 Hefner, Robert 348 Henry, Nicholas 307–8 hermeneutics 67–8, 72 Higher grade pleaders 390 Hla Aung, U 25 Hla Hla Htay 103 Hla Min 309 Hmawbi training and indoctrination centre 68 Ho, Elaine 393 Holliday, Ian 312 homicide 79 Hong Kong 227, 228, 230–1, 232–5, 240 Hooker, MB 4 Hpo Hlaing 72–3 Hse Maung, U 27 Htin Fat 73 Htin Zaw, U 27 Htun Yee 23 human body in Burma Law Reports 1892–1922 77–90 agents, embodiment of sovereignty in 78 Anglo-Indian law 78–9, 82–4, 87–8, 90 assault 7, 79 assembled bodies 78, 81–4 colonialism 7, 77–90 criminal cases 78–90 elites 86–7 gendered bodies 7, 78, 84–7, 89–90 Lower Burma Rulings 78

obscured bodies 7, 78, 87–90 offensive bodies 78, 79–81 Penal Code 79, 81–2, 89–90 sovereign, body of the 78 Upper Burma Rulings (UBR) of Court of the Judicial Commissioner 78 violence 77–84 human rights see individual/human rights humanitarian action see Kachin State, civilian protection and humanitarian action in Hun Sen 360, 363–4 Hurrell, A 361 Huxley, Andrew 3, 8, 144 Iceland 170, 173 impeachment 50, 99, 124–7, 132, 214, 383 independence from Britain Buddhist Burmese law 6 Constitution 1947 168 Constitution 2008 118 constitutionalism 39–41 elections 202 industrial disputes 290 Kachin military 306–7 legal development 38–41 rebellions 39, 40, 52 India see British India individual/human rights ASEAN 16, 343, 351–2, 359–61, 370–3, 393 Asian values 130 capacity 393 citizenship 394 Constitution 1978 384 Constitution 2008 119, 130–3, 138 constitution-making and reform, comparative analysis of 167, 174, 175, 177 constitutional writs 142–5, 152 Convention on the Rights of the Child 391, 393 corporate social responsibility 372 criminal process rights 131–2 cultural rights 130–1 detention, reviews of 145 economic, social and cultural rights 359 elections 205–6, 209–10, 212, 359–60 enforcement 130, 132–3 ethnic nationals/minorities 152, 372, 393–4 gender 119, 206–8, 391, 393 Human Rights Committee (UN) 205, 210, 219, 393 individualism 130 International Covenant on Civil and Political Rights 205–6, 209–10, 393 International Covenant on Economic, Social and Cultural Rights 393 law and development 17, 378, 384, 393–4 law and economics 389–90 lists, importance of 130 National Human Rights Commission 147, 391, 394 omissions 130 Paris Principles 394 police 278, 280, 283 prison conditions 393

410 Index individual/human rights cont. qualified rights 130 religion 130–1, 393 state sovereignty 372 Supreme Court 130, 132–3, 212 transition 162, 343–4, 350–4 Universal Declaration of Human Rights 205, 217, 359 Universal Periodic Review to HRC (UN) 393 Indonesia see also Indonesian model and transition to democracy ASEAN 343, 371–3 Bali Democracy Forum 370 China, fear of Myanmar alliance with 343, 350 comparative law 16 Constitution 1945 168 constitution-making and reform 10, 162, 164, 170 constitutional amendments 16, 120–1 Electoral Management Bodies 370 Jakarta Declaration on the South East Asian Electoral Community 370 multi-party system as 360–1 People’s Consultative Assembly 170 Indonesian model and transition to democracy 343–55 ASEAN 343, 345–6, 350–3, 364 Asian economic crisis 344, 346–7, 350, 354 bill of rights 162 Blue Book on Indonesia-Myanmar Capacity Building Partnership 353 Buddhism 344–5, 348 charismatic leaders 346, 353 Christians 344–5 civil society 348–9, 354 colonialism 345–7 Constitution 1945 (Indonesia) 16, 162, 354–5, 382–3 Constitution 2008 (Myanmar) 351–2, 354–5, 371 Constitutional Court, establishment of 162, 355 corruption 348, 352 development assistance 353 differences between countries 347, 355 Dutch civil law model 345 dwifungsi (dual function of army as defence and political force) 349–50 elections and campaigns, manipulation of 350 ethnic nationals/minorities 162, 344–5, 347, 355 geo-strategic significance of Myanmar 16, 344 impeachment 162 independence 345–6, 351 individual/human rights 162, 343–4, 350–4 Indonesian Study Group on Myanmar 352 investment in Myanmar 352–3 Japanese occupation in Second World War 345–6 Joint Commission for Bilateral Cooperation, formation of 351, 353 Judicial Commission 162 legitimacy 16, 348, 350, 354–5 media 348, 352, 354 military 162, 346–55 Muslims 344–5, 348, 352 national identity 347

natural resources 345 New Order regime 16, 344, 348–51, 353 NGOs 348, 354 Pancasila, principle of 162 parliament 354–5 politics 345, 348, 353–4 President 162 Reformasi (Reformation) 343, 394 regional autonomy 162, 346 religion 344–5, 348–9, 352, 354–5 Security Council (UN), as non-permanent member of 351 similarities between countries 344–9, 355, 365, 382 SLORC/SPDC regimes 343–4, 347–52, 354–5 state visits/delegations to Myanmar 350–1, 353 universities 348, 354 Industrial Cooperation Schemes 370 industrial disputes, legal perspectives on 289–99 All Burma Trade Union Congress 14, 291 Anti-Fascist People’s Freedom League (AFPFL) 290–1 arbitration 14, 294, 296 BSPP 292–3 Burma Workers and Peasants Party 291–2 Central Trade Dispute Committee 294, 296 Central Workers’ Committee 293 Clerks Strike 290 collective bargaining 296–9 dispute settlement mechanisms 289–94, 297–9 economic conditions 14, 290–2, 295 encouragement to challenge employers 14 formal resolution 14, 296–9 freedom of association 296 ILO 290–2, 296–7 independence 290 informal and underground networks 291, 292 institutions 289–91, 296–9 International Confederation of Free Trade Unions 297 labour officers 290 labour policy 289–93 law reforms 14, 291, 295–9 market oriented economy 295–6 military rule 14, 292–9 parliamentary period 289, 290–2 Police Strike 290 political parties 14, 291–2 post-independence parliamentary rule 14 private sector 293, 295, 297–8 pro-labour policy 291–3, 299 protests and demonstrations 14, 293, 295–6, 298 rebellions and insurgencies 290–1 Revolutionary Council 292–3 Settlement of Labour Dispute Law 289 settlements, statistics on 294 SLORC/SPDC regimes 14, 289, 295–9 socialist regime, increase in disputes under 14 state mechanisms 14, 292–3 state workers 292–3 Trade Disputes Acts 291, 293, 298 Trade Union Congress of Burma (TUCB) 291

Index 411 trade unions 14, 291–3, 296–9 violence, use of 14, 289 Workers Association (People’s Workers Council) 14 infrastructure 196, 197, 348 inheritance 8, 64, 69–72, 95, 107–11 insider trading 258, 261, 262, 263 insolvency 234 insurance companies 251 intelligence services 271, 273, 280–1 interim constitutions 169, 170 intermediaries 248, 255, 259, 260–1 internal instructions and regulations 26 internal security 272, 275–7, 279–81 internally displaced persons (IDPs) 15, 323, 324–35 International Bar Association (IBA) 387 International Confederation of Free Trade Unions (ICFTU) 297 International Covenant on Civil and Political Rights (ICCPR) 205–6, 209–10, 393 International Covenant on Economic, Social and Cultural Rights (ICESCR) 393 international engagement constitution-making and reform, comparative analysis of 9, 10, 160, 174–7 elections 11, 203–5, 213, 215–16, 219–21 observation 213, 215, 220–1 undercover observation 214 Kachin State, humanitarian action in 15, 323–26 KIA/O 2011 ceasefire breakdown 315–16, 319 law and development 377 political parties 209 International Foundation for Electoral Systems (IFES) 215 International Labour Organization (ILO) 14, 290–2, 296–7, 391 International Organization of Securities Commission (IOSCO) 253 Internet Cyber Crime Division 275 electronic communications 232, 236 Myanmar Law Google groups 29 Network Myanmar 28 Online Burma/Myanmar Library 28–9 online resources 3, 6, 21–2, 28–9 Supreme Court website 21, 25 Inter-parliamentary Union (IPU) Declaration on Criteria for Free and Fair Elections 206 IOSCO Standards 253 Ireland 171 Ireland, DeCourcey 64 jade industry 15, 310 Jakarta Declaration on the South East Asian Electoral Community 370 Jamin, Rafendi 352 Janowitz, Morris 277 Japan Central Bank of Myanmar, Daiwa Securities and Tokyo Stock Exchange, memorandum of understanding between 248 government intervention, expectation of 250

market collapse 250 Second World War 38, 40, 306–7, 345–6 Thilawa Special Economic Zone 196 Jardine, John 59 Jataka (canonical and non-canonical) 34–5 Jinks, D 369 joint ventures 184–5, 248, 388 Jones, D 361 Jordan, C 236 journals, publication of 4, 25–6, 29 judicial independence Constitution 1947 40, 96 Constitution 1974 43 Constitution 2008 49–50, 145–6 Constitutional Tribunal 383 constitutional writs 145–6, 150, 153, 155 Court Advisors, reappointment of judges as 42 language of judgments 386 legal development 52, 386 removal 49, 96 rule of law 385 separation of powers 99 structural lack of independence 9, 141–2 Supreme Court 8, 49, 96, 98–9, 247 judiciary see also judicial independence activism 142–4 appointment 45, 49, 51, 98–9, 123, 145, 212, 2 47 British judiciary, elimination of 59 Companies Act 1914 reform 233, 237 dismissal 124, 386 impeachment 50, 99, 124–5, 132, 214, 383 Judicial Commissioners 24, 36–7, 62, 64, 78 Judicial Journal 25 Judiciary Law 98 media 386 People’s Judges 42, 97–8, 247 quasi-judicial power 142 regions and states 51, 99, 123–4, 212 salaries 126 Kachin Independence Army/Organisation (KIA/O) 2011 ceasefire breakdown 14–15, 305–20 Burmanisation 307 ceasefires 308–10, 319 Christianity 306–7, 316 Constitution 2008 309, 311, 315, 320 divisions within KIA/O 15 economic concerns 305–6, 310, 316 ethnic politics 15, 307, 310–12, 315, 319–20 factions, conflict amongst 308–9, 314 general election 2010 309, 311 guerrilla war 312, 314–15 history of conflict in Northern Myanmar 15, 306–8 humanitarian action 323, 324, 329 independence from Britain 307, 311 international actors 315–16, 319 jade industry 15, 310 Kachin Democratic/Defence/Development Army (KDA) 307 Kachin economic leaders 15, 309

412 Index Kachin State Peace and Development Council 315 Kachin State Progressive Party 309, 311 Lasang Awng Wa Group 308–9 law and war, relationship between 15, 316, 319–20 logging industry 15, 305, 309 mechanisms to deal with breakdown, lack of 15, 305–6 media 312, 314–16 military (Myanmar Army) 15, 307–16, 318–20 mining industry 15, 305, 309–10 National Security Council 316 natural resources 15, 305, 309–10 New Democratic Army - Kachin 307, 309 Panglong Agreement 15, 307, 311–12 peace agreement 2013 315, 319 peace and democracy, relationship between 306 political concerns 15, 305–7, 309–12, 315–16, 319–20 resumption of hostilities 310–12 Second World War 306–7 self-determination 308–9, 316, 319 SLORC/SPDC regimes 305, 307, 315 Special Regions, administration of 307, 308 Union Solidarity and Development Party (USDP) 309 Kachin State see also Kachin Independence Army/ Organisation (KIA/O) 2011 ceasefire breakdown; Kachin State, civilian protection and humanitarian action in Christianity 165, 306–7, 316, 322, 345 colonialism 166 conflicts 48, 151–3, 279, 346, 355 Panglong Agreement 39 parliament 40 police 279 state of emergency 48 transition 345, 355 Kachin State, civilian protection and humanitarian action in 323–36 advocacy coalition networks 330 ASEAN 328 assistance partnerships, examples of 333 camps/shelters 323–36 ceasefire breakdown 2011 323, 324, 329 China internally displaced persons (IDPs) 325–6, 328–9, 331–2, 335 influence 15, 326 military, connection with 326 Refugee Convention, as non-signatory to 326 spill-over, concerns over 326 church 323, 325, 331 civil society organisations/NGOs 15, 323–36 civilians and combatants, distinction between 327 detention, arbitrary, indefinite 332, 336 diseases and diarrhoea, risk of 326 displacement of civilians 15, 323 dynamics of displacement and assistance 331–4 economic reforms 324 ethnic nationals/minorities 15, 326, 329, 335 Free Burma Rangers 336 government, aid from 15, 330

human insecurity, relieving 328–9 incremental or functional approach 323 internally displaced persons (IDPs) 15, 323, 324–35 international actors 15, 323–36 Joint Strategy for Humanitarian Response 334 Kachin Independence Organisation (KIO) 324, 332, 335 Kachin Independence Army (KIA) 323–4, 326–7, 331–6 local NGOs/actors 15, 323, 324–36 media 324–5, 335 military 15, 324–6 norms and negotiations 326–31 obstacles to delivery of aid 15, 323–5 Office of the High Commissioner of Human Rights (OHCHR) 330 peace talks 324 politics 323–4, 326–30, 336 prospects 335–6 refugees 15, 326, 327–30 security threats 326 social and religious networks 15, 323 UN High Commissioner for Refugees 326–31 UN humanitarian assistance convoy 324, 327, 329, 334 UN Office for the Coordination of Humanitarian Affairs (OCHA) 324 UN Security Council and responsibility to protect 328 UN Special Rapporteur 15, 330–1, 336 Union Peace-making Work Committee (Myanmar government) 324 United Nationalities Federation Council 324 Kaingza, Lord 63 Karen 40, 43, 118, 120, 136–7, 165–6, 346–7 Kenya 170–1 Khandaka (Pali) 60 Khin Nyunt 46, 68, 71–2, 274, 308, 349 Khin Yi 274 kings 34–6, 52 Kipling, Rudyard 344 Kolsky, Elizabeth 84 Komisi I 371 Komnas HAM 394 Konbaung dynasty 34, 36, 62 Krygier, Martin 384, 387 Kyaukpyu Special Economic Zone 195–6 Kyaw Htun 62 Kyaw Min San 387, 390, 391–2 Kyaw Thu 63 Kyaw Tint Swe 370 Kyaw Zeya, U 27, 28 Kyi Phyo Wai 314 Kyin Swi 23 labour see forced labour; industrial disputes, legal perspectives on Lacey-Hall, Oliver 334 Lahpai Zazu Seng 314 Lambrecht, Kurt 308 Lammerts, D Christian 23

Index 413 land grabbing 389–90 land/house disputes 107, 109–11 natural resources 15, 120, 135–6, 305, 309–10, 326, 345 ownership 184 language Buddhist Burmese law 59–60 Constitutional Tribunal 26 constitutional writs 151 Council of People’s Justice 43 dictionaries 28 ethnic nationals/minorities 135 internal instructions and regulations 26 journals, publication of 25–6 judicial independence 386 law reports 24 laws and regulations, publication of 21–3 legal education 392 national identity 347 natural language processing 95, 100–1, 111–12 police 274–5 publications 27–8, 73 Supreme Court case topics from 2007 to 2011 7–8, 102–3, 111–12 Laos 360, 363–4, 366 Lasang Awng Wa Group 308–9 law and development 377–95 see also legal development, layers of background 379–80 Burmese moment 17, 377–80, 384, 395 by-elections 2012 380 civil society 390 colonialism 381 common law system, Myanmar as 17, 381–2, 385–8 Constitution 2008 17, 379, 382–5, 391 constitutionalism 17, 378, 384 definition of law and development 378 economic development 378 ethnic nationals/minorities, ending conflicts with 380 Foreign Investment Law 380, 383, 395–6 general election 2010 379–80 individual/human rights 17, 378, 384, 393–4 institutions 394 judicial independence 386 law and economics movement 17, 388–90 legal education 378, 387, 390–3 legal information, access to 381–2 legal profession 378, 381, 390–3, 395 legal research 382 legislation 380–3, 390–3, 394–5 literature 17, 381 military 382 political prisoners, release of 380 protests 380 rule of law 17, 378, 385–8, 390–1 SLORC/SPDC regimes 379 Special Economic Zone Law 17, 380 transition 377–9 workshop 2012 377, 379, 381–3, 387

law and economics 17, 388–90 law and society scholarship 4–5 Law Journal (OAG) 25 Law Offices Manual 26 law reports see also Myanmar/Burma Law Reports Buddhist Burmese law 60, 67, 69 Burma Law Reporting Council 24 Central Court 24 Chief Court in Rangoon 24 Constitutional Tribunal website 26 constitutional writs 9 Court of the Judicial Commissioner in Mandalay 24 Courts-Martial Appeal Court 24 digests 24–5 High Court in Rangoon 24 language 24 legal positivism 77 list of reports 24 Lower Burma Rulings 78 National Library of Australia 29 Office of the Attorney General 24 online reports 8 pyattôn (precedent) 60, 67, 69 research 24–6, 29 Selective Lower Judgments of Lower Burma, publication of 36 Special Criminal Courts’ Appeal Court 24 Supreme Court 24, 26, 40 Upper Burma Rulings of Court of the Judicial Commissioner 78 Lawkabala Taya as Upholders of the Compass 68 laws and regulations see legislation lawyers see legal profession Layawk Zelum 307 Lazum Khun Phan 307 League of Arab States 368 leases 184 Lee, Orlan 23 Legal Affairs journal 25 legal aid 99, 390, 391–2 legal development, layers of 6, 33–53 civilian-military government 47–53 colonialism 33–4, 36–9, 52 common law system 33, 36–8 constitutionalism 39–41, 44–7 independence 38–41, 43, 52 legal change, trajectories of 6 origins of Burmese law 34–6 socialist regime, thin legalist veneer of 41–4 socio-economic crisis 43–4 legal education academic networks and conferences 29 Buddhist Burmese law 7 capacity-building 392 common law 99 company law 247 content 392–3 hermeneutics 72 international engagement 215 language 392 law and development 378, 387, 390–3

414 Index legal education cont. law departments 25, 45, 72, 99, 112 laws and regulations, publication of 21 London, legal education in 37 military 45–6 research 392 skills/knowledge distinction 392–3 socialist era 42, 247 Supreme Court 99, 112 Sydney Law School workshop 2012 15 universities 25, 42, 45, 215, 392 legal information, access to 381–2, 393 legal positivism 64, 77 legal profession see also legal education advocates 35, 37, 390 bar councils 25, 37 Buddhist Burmese law 59 Burma Lawyers’ Council website 28 colonialism 35, 37–8 corruption 391 death penalty cases 99 economic reforms 13 elimination of Burmese legal profession 59 equity capital market law 247 formalisation 35, 37–8 handbook on responsibilities and rights 26 higher grade pleaders 390 independence 42 international law firms 3 journals, publication of 25 law and development 378, 381, 390–3, 395 legal aid 390, 391–2 nationalisation 247 number of lawyers 390 prominent lawyers, shaping of legal system by 37–8 rule of law 390–1 she-ne (lawyer) 35 UNDP 395 legislation see also drafting legislation; particular laws economic reforms, legislative foundations of 183–98 ethnic nationals/minorities 135, 136–7 individual/human rights 391 ILO 391 law and development 380–3, 390–3, 394–5 Office of Attorney General 391, 394 ordinary legislation, blocking 9, 120 publication of laws and regulations 6, 21–3, 27–9 transparency 391 legislature see parliament Letpadaung protests 280, 283–4, 387 Lev, Dan S 34 libraries 28–9 Libya 172 Lindberg, Staffan 201, 213, 220 Lindsey, Tim 5, 21 logging industry 15, 305, 309 Lon Htein riot 273 Lower Burma Rulings (LBR) 78 Lower House (Pyithu Hluttaw) see also Unicameral Parliament (Pyithu Hluttaw)

Constitution 2008 206–7 constitutional writs 153 elections 42–3, 47, 207–8, 211–12, 216, 218, 351 ethnic nationals/minorities 136–7 gender 208 impeachment 99 laws and regulations, publication of 22–3 military 41–2, 120 President, election of 126 townships 207, 218 Union Attorney General’s Office 391 Upper House 136–7 website 23 Lwin Moe 78 Lwin Oo, U 153–4 Maharajathat 60, 63 Maingy, AD 36 majority decision-making 172, 207 Malaysia common law 13 companies 225–7, 233–4, 236 Corporate Law Reform Committee 234 democratisation 360 directors’ duties 233 disclosure-based regulation 250–1 draft Company Law Bill 227, 230 elections 2008 and 2013 364 financial reporting 234 judges, removal of 386 New Economic System 250 promoters, definition of 254 single-party dominance 364 mandamus (order to compel) 149, 154, 391 Manu, Judge 66 Manugye dhammathats 65–8 market abuse/market manipulation 248, 261–3 market economy 11, 183, 198, 295–6 martial law orders 22 Maung Maung 27, 38, 40, 42, 44, 59, 68, 72, 96, 386 Maung Maung Than 384 Maung Tin Ohn 27 media censorship 21, 47, 72–3, 163, 298, 352, 364 Kachin State, humanitarian action in 324–5, 335 KIA/O 2011 ceasefire breakdown 312, 314–16 newspapers, publication of laws in 22 transition 348, 352, 354 Youtube 314 Megawati Soekarnoputri 346, 351 Mendes, Errol 284 Mi Shwe 70 Microfinance Law 10, 183, 193–4, 198 migrant workers, rights of 372 military see also SLORC/SPDC regimes arms 271 ASEAN 17, 362, 368 bases and installations 310, 312–13 Burmese Way to Socialism 41–2 business community, relationship with 14 Chief of Police as member of military 278 commander-in-chief 120–2, 207

Index 415 Constitution 1947 40–1 Constitution 2008 9, 47–53, 117–22, 137–8, 159, 161, 277, 351, 371, 383 constitution-making and reform, comparative analysis of 164 Constitutional Tribunal 121 constitutional writs 144–6, 152 democratisation 362 dissolution of civilian government 120 dwifungsi 349–50 elections 46, 203, 380 ethnic nationals/minorities 122, 133–4 executive 121, 145–6 industrial disputes 292–9 intelligence service 271, 273, 280–1 Kachin State, humanitarian action in 324–6 KIA/O 2011 ceasefire breakdown 15, 307–16, 318–20 legal development 34, 40–4, 47–53 legal education 45–6 military economy 318–19 ministries 121, 278 names, change of 118 National Defence and Security Council, appointment by 121–2 ordinary legislation, blocking 9, 120 oversight, lack of 315–16 parliament 9, 120, 144, 214, 350–1, 371, 382 police 13–14, 271–85 political parties 380 political powers 121–2 President 15, 48 rebellions/insurgencies 279 Revolutionary Council 41–2, 118 rule of men 9, 119 single strongman, power concentrated in 119, 120 state/regional assemblies 277 states of emergency 120, 122 Supreme Court 96–8 universities 45 Upper House 207 USDP 277 working masses, reliance on 14 Min Aung Hlaing 353 Min Sein 258 Mindon 35, 64, 69–70 mining industry 15, 305, 309–10 ministries/departments appointments 51 ASEAN 370 commander-in-chief 14 Companies Act 1914 reform 241–2 elections 37 equity capital market law 13, 246–7 gender 9, 129 military 121, 278 MNPED Guidelines 248–50, 259, 263 police 14, 278 President 51 publications 23, 27 regions and states 49, 51, 121, 127, 206–7

minority groups see ethnic nationals/minorities misrepresentation 256–8 Miyazawa, Setsuo 4 MNPED Guidelines 248–50, 259, 263 monetary policy instruments 191 money laundering 71–2, 235 monopolies 10, 187, 347 Morley, Peter 389–90 Moung Moung Kyaw Win, U 43 Mugabe, Robert 123, 367 Muhammadiyah 348 multiculturalism 393 Murthy, Kavi Narayana 103 Muslims Buddhists, conflict with 146, 166, 195–6, 393 constitution-making and reform, comparative analysis of 165 Rohingya Muslims 165–6, 168, 280, 345, 352 state of emergency 48 Sunni Muslims 345 transition 344–5, 348, 352 Mya, U 28 Mya Sein, U 27 Myanmar/Burma Law Reports 24, 26, 40 constitutional writs 142, 144, 147, 150–3, 155 human body 7, 77–90 Supreme Court case topics from 2007 to 2011 96, 100, 108–11 Myanmar Investment Commission (MIC) 10, 185, 186–7, 388 Myanmar Law Google groups 29 Myanmar police force (MPF) see police Myat Aung 70 Myint Aung, U 27 Myint Thein, U 42, 97 Myint Zan 27, 68, 77, 100, 111, 384, 386 Myitsone dam project 314, 380 Nahdlatul Ulama 348 Nardi, Dominic 78, 383 Natalagawa, Marty 344, 353 National Brotherhood Forum (NBF) 204 National Defence and Security Council (NDSC) 121–2, 278 National Democratic Force (NDF) 217 national identity 160, 166–8, 175–6, 347 National League for Democracy (NLD) 1990 election victory 11, 46, 138, 349, 363 by-elections 2012 11, 204, 217–18, 380 Constitution 2008 46, 161, 383 elections 11, 46, 138, 202–4, 218, 349, 363, 379–80 general election 2010 379–80 National Democratic Force 217 prosecution 45 nationalisation 41–2, 247, 386 nationalism 37, 166, 290, 345, 347 Nationalities Democratic Front (NDF) 167 natural language processing (NLP) 95, 100–1, 111–12 natural resources 15, 120, 135–6, 305, 309–10, 326, 345 Nay Win Maung 362

416 Index Ne Win 14, 38, 41, 43–4, 52, 59, 68, 71, 73, 97, 119, 144, 202, 271, 273, 289, 292–5, 347, 350, 378, 386 negligent misstatements, economic loss due to 258 Nepal 169, 171 New Democratic Army - Kachin (NDA-K) 307, 309 New Light of Myanmar newspaper 22, 26, 100, 314, 362, 365 New Zealand 235, 255–6 newspapers, publication of laws in 22 NGOs (non-governmental organizations) 3, 15, 209, 323, 324–36 see also civil society Nicholson, Pip 5 Nigam, Ashok 334 no confidence votes 126, 206 Nobel Peace Prize 380 non-governmental organisations (NGOs) 3, 15, 209, 323, 324–36 see also civil society non-interference, principle of 326, 328, 360, 363, 368, 371, 373 norms 16, 363, 369–71 Norris, Pippa 205 Nu, U 40–1, 97, 273, 362 Nyeyya, U 70 O’Donnell, Guillermo 201 offer of shares 248–50 see also prospectus regulation Office of the Attorney General (OAG) Constitution 2008 207 constitutional writs 141, 146–7 dictionary, publication of legal 28 drafting legislation 45 journals 25 Law Offices Manual 26 law reports 24 laws and regulations 22, 27, 391, 394 lawyers’ responsibilities and rights, handbook on 26 website 22 Office of the High Commissioner of Human Rights (OHCHR) 330 official manuals and compilations 26 Ojea Quintana, Tomas 330–1, 336 online resources 3, 6, 21–2, 28–9 Organisation of American States (OAS) 368 organised crime 275 origins of Burmese law 34–6 Anglo-Burmese Wars 35–6 dhammathat (Burmese law texts) 34–5 J¯ataka (canonical and non-canonical) 34–5 kingdoms 34–5, 52 legal profession 35 monarchy, demise of 36 pre-colonial legal culture 34 pyattôn (precedent) 34 sources of law 34–5 vinaya (monastic law) 35 yazathat (law made by the king) 34–5 over-the-counter trading 12, 248–9 Pali scriptures 59–60, 62 Panglong Agreement 15, 39, 307, 311–12

parliament see Union Parliament (Pyidaungsu Hluttaw) Patimokkha (Pali) 63 People’s Judges 42, 97–8, 247 People’s Judicial System 42, 144–5 People’s Workers Council (Workers Association) 14 Pevehouse, Jon C 362, 367 Philippines 329, 360–1, 371 Pinochet, Augusto 163 Poh-Ling Tan 4–5 police accountability 278, 284 border security 279 Bureau of Special Investigation 273 Chief of Police as member of military 278 civil Burma Police 272–3 civilian identity, development of 278–81 civilianisation of security 271–85 colonialism 272–4, 276, 281–2 Committee for Reform of the People’s Police Force Management System (CRPPFMS) 274–5, 277 community-based policing model 274–5, 281–3 community relations 282–4 Constitution 2008 285 constitutional amendments 14 corruption 13–14, 271, 275, 277, 282–3 Criminal Investigation Department 26, 273 culture and socialisation of police 281–2 Cyber Crime Division 275 decentralisation 13 drugs 271, 275, 279, 281 funding 276–7 further reforms, proposal for 13, 276–7 future of police 276–7 gender 274 history of police 272–3 impunity 13, 278 individual/human rights 278, 280, 283 industrial disputes 290 intelligence services 271, 273, 280–1 internal security 272, 275–7, 279–81 language 274–5 Lon Htein riot 273 military 13–14, 271–85 paramilitary police 272, 273–5, 283 People’s Police Force 273–4 political crimes 273, 280–1 professionalism 13, 275, 277, 281–2 public attitudes to police 273–5, 279–84 rebellions, riots and insurgencies 272–4, 279–81, 283 reform of police 271–85 SLORC/SPDC regimes 274 sovereignty, unity and stability, national causes of 276 Special Branch 273, 281 State and Region level 13, 276 strategic reserve, use of police as 275 terrorism 279 Tourist Police unit 275 training and education 279–82 Transnational Organised Crime Convention 275

Index 417 politics see also elections; political parties Buddhist Burmese law 6, 72–3 comparative law 17–18 Constitution 2008 117 constitutional writs 142 crimes 273, 280–1 Kachin State, humanitarian action in 323–4, 326–30, 336 KIA/O 2011 ceasefire breakdown 15, 305–7, 309–12, 315–16, 319–20 military 121–2 opponents, prosecution of 44–5 participation, right of political 359–60, 364 political prisoners 47, 98, 101, 111, 121, 131–2, 298, 343–4, 352, 380, 393 research 4 political parties see also particular parties (eg National League for Democracy (NLD)) activism 11, 203 dissolution 292 elections 11, 202–4, 208–9, 213 industrial disputes 14, 291–2 insurgent organisations 208 international, NGOs or foreign organisations, support from 209 limits on right to form parties 11, 208 media 203 military sponsorship 380 Political Parties Registration Law 11, 202, 208–9 trade unions 14 precedent 9, 33, 148–50, 247, 385 prerogative writs see constitutional writs Presidency Aung San Suu Kyi, targeted disqualification of 122–3, 208, 218, 379–80, 383 budget 125–6 candidates, requirements for 50–1 Central Bank of Myanmar, appointments to 259 Constitution 1974 43 Constitution 2008 50–1, 122–9, 206–8 Constitutional Tribunal 123–5, 212 courts, domination over 123–5 economic reforms 10 election/appointment 39–40, 43, 122, 126–7, 159, 161, 204, 207–8, 216–20, 350, 379 elections 207–8, 218, 220 executive appointments 127, 206 immunity 123, 127–8 impeachment 124–6, 127 judges, appointment/nomination of 51, 99 legislation, drafting 48 ministers, appointment of 51 no confidence vote, lack of 126, 206 parliament 49, 125–8, 206–7, 208, 218, 220 patronage 127 regions and states 124, 127–8, 133–4, 206–7 removal from office 126–7 self-administered zones or divisions 52 term of office 126–7 veto power 126 Prime Minister, appointment of 40 printing press 59

prison see detention Privy Council, Judicial Committee of the 39, 65, 142 prohibition, writ of 148, 154, 391 proportional representation 217–18 prospectus regulation auditors, reports of 252 Companies Act 1914 12, 249, 251–3, 265–6 content and requirements 251–3 Contracts Act 12 criminal offences 252 Directorate of Investment and Company Administration (DICA) 250, 252 disclosure-based regulation 12, 249–51, 253, 263 fraud and misrepresentation, remedies for 256–8 merit-based regulation 12, 249–51, 263 misleading or untrue statements, liability for 253–8, 263 MNPED Guidelines 254 promoters, definition of 254–5 prospectus, definition of 251 registration of prospectuses 12, 251–2 Securities Exchange Law 251, 253 Securities Exchange Supervisory Commission 252 protectionism 186 protests elections 202 Four Eights protests 44, 119, 349 individual/human rights 119 industrial disputes 14, 293, 295–6, 298 law and development 380 Lon Htein riot 273 Red Bridge incident 43–4 Saffron Revolution 16, 47, 119, 274, 279, 343, 349, 351, 367, 372 public offers see prospectus regulation public participation in constitution-making and reform 160, 169, 171, 172–3 publications 4–5 see also laws and regulations, publication of booksellers 29 dictionaries 28 journals 25 language 27–8, 73 official and quasi-official publications 26–7 opinion pieces 28 political theory 72–3 Puchniak, Daniel 386 pyattôns (law reports) 60, 67, 69 Pyidaungsu Hluttaw see Union Parliament (Pyidaungsu Hluttaw) Pyithu Hluttaw see Lower House (Pyithu Hluttaw) Quah, Eugene 384, 391 quashing orders (certiorari) 143–4, 147–50, 154, 391 quasi-monopolies 10 quo warranto 154, 391 rajathat (Pali) 60, 62, 70 Ramraj, Victor 382, 384, 392 Rangoon Employment Exchange 290 rape 7, 84–6, 89–90 Rathjen, Jeremy 252, 259

418 Index rebels see resistance armies/insurgents Red Bridge incident 43–4 referendums 42, 46–7, 117, 168–9, 203, 217, 311, 351 refugees civilians and combatants, distinction between 327 institutional capacity 329 Refugee Convention 15, 326, 327–30 Southeast Asia, approach in 15, 327–9 UN High Commissioner for Refugees 326–8 regional organisations 361, 363, 368, 370 see also ASEAN; European Union regionalism 361, 363–5, 370 regions and states see also Kachin State; Shan/Shan State; Special Economic Zone Law Constitution 2008 135 Constitutional Tribunal 49, 123 constitutions 9, 10, 134–5 elections 137, 203 equality and justice 372 ethnic nationals/minorities 133–4 executive, dominance of 51–2, 127–8, 133 gender 9 institutions 218 judges 51, 99, 123–4, 212 military 120–1, 271, 275–6 ministers 49, 51, 121, 127, 206–7 parliament 47, 52, 120, 135–7, 159, 162, 203, 206–7 213–14, 218, 271, 277 police 13, 276–7 Presidency 124, 127–8, 133–4, 206–7 self-administered zones or divisions 51–2, 123, 128, 207, 385, 394 Special Regions, administration of 307, 308 State/Divisional and Township Courts, establishment of 247 states of emergency 128 Supreme Court 98, 123–4 regulations see laws and regulations, publication of religion see also Buddhist Burmese law; Buddhists/ Buddhism; Christianity; Muslims constitution-making and reform, comparative analysis of 162, 165 elections, exclusions from 209 ethnic nationals/minorities 135 individual/human rights 130–1 Kachin State, humanitarian action in 15, 323 multi-ethnic/multi-religious populations 162, 165 organisations 348–9, 354 transition 344–5, 348–9, 352, 354–5 Renshaw, Catherine S 351 research 3–4, 6 academic networks and conferences 29 access to resources 21 Buddhist Burmese law 7 Constitution 2008 384–5 journals 4, 6, 25–6, 29 language 21–3, 26, 29 law and development 382 law reports 24–6, 29 laws and regulations 6, 21–3, 28–9 legal education 392 legal system, guide to 21–9

libraries 29 online resources 3, 6, 21–2, 28–9 political context 4 primary sources 6, 21–7 public policy 4 resources and networks 28–9 secondary sources 21, 27–8 social context 4 Supreme Court case topics from 2007 to 2011 8, 95–112 resistance armies/insurgents see also Kachin Independence Army/Organisation (KIA/O) 2011 ceasefire breakdown ethnic nationals/minorities 118, 133–5, 138, 346 independence 39, 40, 52 industrial disputes 290–1 police 272–4, 279–81, 283 religion 159–60, 162, 344–6, 352, 393 resource-sharing and revenue-sharing 135–6 training 279 resources and networks 28–9 responsibility to protect (R2P) 328 Revolutionary Council 22, 23, 27, 41–2, 118, 292–3 Rieffel, Lex 350 Rohingya Muslims 165–6, 168, 280, 345, 352 Royal Charters or Acts of Parliament, formation of companies by 246 Royal Orders of Burma 23 rule of law 17, 344, 378, 385–8 ASEAN 359, 363–4, 387 Burma Code 385–6 common law 385–8 judicial independence 385 justices, termination of tenure of Supreme and High Court 386 law and development 17, 378, 385–8, 390–1 legal consciousness 387 legal education 387 legal profession 390–1 Members of Parliament, complaints to 391 Supreme Court, abolition of 386 Saffron Revolution 16, 47, 119, 274, 279, 343, 349, 351, 367, 372 San Lwin, U 22 Sandford, Douglas 36 Saw Maung 68, 295 Schedler, Andreas 201 Schmitter, Phillipe C 201 secession 40, 120, 166, 319, 346 Securities Exchange Law Companies Act 1914 reform 237, 241 Directorate of Investment and Company Administration (DICA) 248–50, 259 disclosure obligations 258–9 financial promotion 260 insider trading 258, 262, 263 intermediaries, regulation of market 248, 260–1 investment culture, fostering a 250–1 offers of shares 248–50 market abuse 248, 261–3

Index 419 misleading or untrue statements, liability for 263 MNPED Guidelines 248–50, 259, 263 over-the-counter trading 12, 248–9 prospectus regulation 251, 253 public companies 248–9 publicly available information 258–9 regulation 248–9, 264 reporting 258–9 safe harbour provisions 263 Securities Exchange Centre 12, 248 Securities Exchange Companies 261 Securities Exchange Supervisory Commission 12, 249, 252, 259–61 stock exchange 12, 248–50, 258–9 security, civilianisation of 271–85 Security Council (UN) 328, 351 Sein Lwin 44 Selective Lower Judgments of Lower Burma, publication of 36 self-administered zones or divisions 51–2, 123, 128, 207, 385, 394 self-determination 118–20, 133, 165–6, 308–9, 316, 319 Selth, Andrew 29 separation of powers 9, 37, 43, 145, 153, 155, 384 Serrano, Jorge 368 sexual minorities 393 Shan/Shan State colonialism 166 conflicts 71, 279, 312, 314, 320, 323–5, 331, 333–4 constitutions 134, 165, 347 customary law 37 natural resources 305 Panglong Agreement 38–9, 307 parliament 40 racialised bodies 88–9 share offers 248–50 see also prospectus regulation Shinawatra, Thaksin 364 Shinawatra, Yingluck 364 Shwe Mann 99, 186, 214 Sidel, Mark 5 Silverstein, Joseph 143, 145 Singapore common law 13 companies 225–7, 230–3, 235 corporate governance 232 democratisation 360 directors’ duties 233 disclosure-based regulation 251 drafting 236 elections 2011 364 electronic communication 236 misleading or untrue statements, liability for 255–6 Securities and Futures Act 249, 263 single-party dominance 364 SLORC/SPDC regimes ASEAN 363 Constitution 2008 351 constitutional writs 145 constitutionalism 44–6 elections 203, 349

industrial disputes 14, 289, 295–9 institutions 44 international delegations 343 KIA/O 2011 ceasefire breakdown 305, 307, 315 law and development 379 laws and regulations, publication of 22, 23 leadership, changes in 46 police 274 publications 27 Saffron Revolution 47 socialism 71 Supreme Court 97–8, 100, 247 transition 343–4, 347–52, 354–5 Smith, Malcolm 4 socialism see also Burma Socialist Programme Party (BSPP) banks 71–2 Buddhist Burmese law 59, 71–3 Burmese Way to Socialism 41–2, 68, 247, 292, 379 constitutional writs 142, 144–5 Council of People’s Justice (CPJ) 43, 97 industrial disputes 14 legal development 41–4 legal education 247 People’s Judges 42, 97–8, 247 People’s Judicial System 42, 144–5 People’s Workers Council (Workers Association) 14 Revolutionary Council 22, 23, 27, 41–2, 118, 292–3 SLORC/SPDC regimes 71 socialisation 363–4, 369–71 Soe Nyunt, U 153 Soe Thane, U 187 Soeharto 16, 162, 343, 345, 347–8, 350–2, 354, 362, 365 Soekarno 162, 346–7 Soekarnoputri, Megawati 162, 346–7 soft law 328–9 South African Constitution, making of 10, 163, 169–70, 174 South Korea 165, 170 South Sudan 175 Southern African Development Community (SADC) 368 sovereign, body of the 78 Special Branch 273, 281 Special Criminal Courts’ Appeal Court 24 Special Economic Zone Law 10, 183, 194–7, 198 Dawei 194–5, 394 drafting 17, 394 Foreign Investment Law 195 infrastructure 196, 197 Kyaukpyu 195–6 labour force 197 law and development 17, 380 risk assessment 389 Special Economic Zones (SEZs) 194–5 Thilawa 195–6 Special Regions, administration of 307, 308 specialisation 35 Sri Lanka 60–1, 66 Sta. Maria, Bobbie 390

420 Index State Law and Order Restoration Council (SLORC) see SLORC/SPDC regimes state-owned enterprises (SOEs) 197 State Peace and Development Council see SLORC/ SPDC regimes state sovereignty 276, 330, 372 states see regions and states states of emergency 128–9, 146, 168 Steinberg, David I 98, 278 Stephen, James Fitzjames 64, 78 stock exchange Companies Act 1914 reform 235 continuing obligations 258–9 establishment of 12, 248–50 qualifying criteria 250 rules 258–9 settlement system, lack of 12 supervision 259 Stoics 62–3, 67 Stoler, Ann 89 Stribley, Keith 102 strongman rule 119, 120 see also charismatic leaders Sukma, Rizal 371 Sundhaussen, Ulf 347, 349 Supreme Court see also Supreme Court case topics from 2007 to 2011 Applications Review Board 154 appointments 45, 49, 98–9, 123, 145, 212, 247 Chief Court, replacement with 144 Chief Justice 212 closure 144 Constitutional Tribunal 132 constitutional writs 142–55 corruption 247 direct petitions 212 independence 247 individual/human rights 130, 132–3, 212 law reports 24, 26, 40 lower courts, supervision of 49 President 49 regions and states 98, 123–4 rule of law 386 State/Divisional and Township Courts, establishment of 247 Supreme Court Gazette 29 unreported cases 146 website 21, 25 Supreme Court case topics from 2007 to 2011 8, 95–112 appeals 96, 98 appointment 98–9 automated topic analysis, case for 100–2 bias 96, 101 Buddhist Burmese law 97 Burmese language 7–8, 102–3, 111–12 Chief Court, replacement with 97 Chief Justice, nomination by President of 99 civil proceedings 98, 107–11 common law 97, 99 Constitution 1947 96–7 Constitution 1974 97 Constitution 2008 98–9

constitutional review 98–100, 107, 110–11 contracts 8, 107–11 costs 99, 109–10 criminal cases 8, 95, 98, 107–11 death sentences, confirmation of 98 Dirichlet distribution 103–4 district and township court judges, appointment and removal of 99 history 7, 95, 96–100 impeachment of judges 99 inheritance 8, 95, 107–11 judicial independence 8, 49, 96, 98–9, 123 judicial/procedural issues 95, 105–11 Judiciary Law 2010 98 land/house disputes 107, 109–11 latent topic models 7–8, 103–4, 111–12 legal education 99, 112 legal representation, right to 99 military 96–8 Myanmar Law Reports (ex-Burma Law Reports) 96, 100, 108–11 natural language processing (NLP) 95, 100–1, 111–12 number of judges 99 parliamentary democracy (1948–62) 96–7 People’s Courts 97–8 political prisoners 98, 111 processing texts 102–3 public attitudes 99 quantitative analysis of case law 7 reform of judiciary 99 rejection of nominees 99 restoration 98 restructuring 97 settle in smaller cases, incentives to 99 State Law and Order Restoration Council/State Peace and Development Council 97–8, 100 statistical studies 8 topics 104–12 transition to democracy (2010–) 98–9 unreported cases 8 Suttavibhanga (Pali) 60, 63 Syria 368 Tan, Hsien-Li 372 Tatmadaw see military Taw Sein Ko 23 Taylor, Robert 272 terrorism 279 Tha Gywe 67 Thailand ASEAN 372–3 Aung San Suu Kyi, visit from 380 corruption 365 Dawei Special Economic Zone 195 individual/human rights 372–3 military coups 360–1, 364–5, 368 multi-party system as 360–1, 364 refugees from Myanmar 367 Three Seals Code 64 Thalun 63 Than Htaik, U 28

Index 421 Than Shwe 46–7, 71, 103, 119, 351 Than Tun 23 Thant Myint U 394 Thant Thaw Kaung 29 theft 60–72 Thein Han, U 25 Thein Sein 46–7, 50, 122, 138, 161, 184, 188, 195, 201, 204, 214, 272, 274, 277–8, 281, 284–5, 297–9, 315–16, 325, 344, 352, 355, 362, 379 Thibaw 36, 386 Thilawa Special Economic Zone 195–6 Thura Shwe Mann 99, 186, 214 Thuzar, Moe 393 Tin Aung Hein, U 43 Tin Maung Maung Than 382 Tin Ohn, U (Maung Tin Ohn) 27 Tin Win, U 28 Tomasic, Roman 5 tort law 253–5, 257–8, 263 torture 336, 393 Tourist Police unit 275 trade unions 14, 291–3, 296–9, 391 training and education see also legal education Election Commission 219, 220–1 Hmawbi training and indoctrination centre 68 police 279–82 rebellions/insurgencies 279 transition to democracy see also Indonesian model and transition to democracy ASEAN 16–17, 176–7, 360–4, 372–3 Buddhist Burmese law 59–60 constitution-making and reform, comparative analysis of 10, 160–5, 176–7 constitutional law 8–9 elections 11, 160, 201, 212, 213–20 ethnic nationals/minorities 15 European Union 368 incremental transition 17 Kachin State, humanitarian action in 15 law and development 377–9 marginalised groups, inclusion of 161 Panglong Agreement 15 publications 5 regional organisations 368 Supreme Court case topics from 2007 to 2011 98–9 tradition (1885), transition from 59, 64, 73 transnational advocacy networks 203 Transnational Organised Crime Convention 275 transparency Central Bank of Myanmar Law 189, 191 Companies Act 1914 reform 12, 230–1, 234, 235 elections 204, 210–11, 220–1 Extractive Industries Transparency Initiative 389 legislation 391 Transparency International (TI) Index 387 Treaty of Yandabo 36 Tun Tun Oo 99 Turnell, Sean 388 Unicameral Parliament (Pyithu Hluttaw) Constitution 1974 145

Council of People’s Justices 97, 247 Pyithu Hluttaw Laws in Burmese (1974–88) 22 socialist regime 42–3 Union Parliament (Pyidaungsu Hluttaw) see also Lower House (Pyithu Hluttaw); Upper House (Amyotha Hluttaw) abolition 144 bicameral parliament 37, 39–40, 47, 52, 137, 206 budget 125–6 committees 214, 385 Companies Act 1914 reform 240–1 Constitution 2008 47–50, 52, 120, 206–7, 351, 371 Constitutional Tribunal 132 constitutional writs 9, 141, 144, 153–4, 155 elections 125, 207–8, 213–14, 218–20 ethnic nationals/minorities 136–7 executive 127, 214 gender 9, 129–30, 207–8 Green book (2008 Constitution) 47 laws and regulations, publication of 22–3 Members of Parliament assertiveness 11, 213–14 complaints 391 military 9, 120, 144, 214, 350–1, 371, 382 prerogatives, assertion of 11, 213–14 President 50, 125–8 regions and states 47, 52, 120, 135–7, 159, 162, 203, 206–7 213–14, 218, 271, 277 Securities Exchange Supervisory Commission, appointments to 259 term of office 206 veto of President 126 Union Peace-making Work Committee 324 Union Solidarity and Development Party (USDP) 11, 203, 214, 217, 277, 309, 380 United Kingdom see also British colonialism; British India common law 13 companies 12, 225, 228, 231–3, 237–8, 240–1 corporate governance 232 directors’ duties 233 Disclosure and Transparency Rules (FCA) 261–2 Financial Services Act 1986, review of industry before 263 Financial Services and Markets Act 2000 255, 261–3 insider trading 262 legal education in London 37 Listing Rules 249 market abuse 260–2 Myanmar, visit of Foreign Secretary to 380 safe harbour provisions 263 Westminster Hall, address to Parliament by Aung San Suu Kyi in 380 United Nationalities Federal Council (UNFC) 138, 324 United Nationalities League for Democracy (UNLD) 167 United Nations (UN) Charter 363 constitution-making and reform, comparative analysis of 160, 174

422 Index United Nations (UN) cont. High Commissioner for Refugees 326–31 Human Rights Committee 205, 210, 219, 393 Kachin State, humanitarian action in 326–31 KIA/O 2011 ceasefire breakdown 315 Office for the Coordination of Humanitarian Affairs 324 Office of the High Commissioner of Human Rights 330 Security Council 328, 351 Special Envoy 351 Special Rapporteur 15, 330–1, 336 United Solidarity and Development Association (USDA), formation of 44 United States ASEAN 372 disclosure-based regulation 249 Federal Securities regime 249 isolation, policy of 369 Kachin State, war in 315, 325 law and development 380 merit-based regulation 249 Myanmar, visit of Secretary of State to 380 Supreme Court database 101 universal and equal suffrage 209, 217–18, 360 Universal Declaration of Human Rights (UDHR) 205, 217, 359 universities 4, 25, 42, 45–6, 348, 354, 392 unreported cases 8, 9, 142, 146, 151–5 Upali 69–70 Upper Burma Rulings (UBR) of Court of the Judicial Commissioner 78 Upper House (Amyotha Hluttaw) composition 207 Constitution 2008 206 elections 47, 207–8, 218 ethnic nationals/minorities 136–7, 207 laws and regulations, publication of 23 Lower House 136–7

majority system 207 military 207 Venice Commission 205, 210, 219 Vietnam 5, 184, 196, 271, 360, 364 vice-presidents 208 Vinaya literature 35, 60–72 violence, state monopoly on 52, 79 voting see elections Wahid, Abdurrahman 350 war crimes 119 warehousing/Palestinisation of refugees 329 Weber, Max 69 websites 22–3 Welsh, Bridget 382, 384 Whalen-Bridge, Helena 392 White, George 78 Whitehead, Laurence 201 wills 69–71 Win Shein, U 187 winding up 226 Wirajuda, Hassan 343–4, 351, 353, 355 women see gender Women’s League of Burma 119 Woodruff, Michael J 101 Woon, Walter 236 Workers Association (People’s Workers Council) 14 writs see constitutional writs Yandameit Kyaw Htin 23 yazathat (law made by the king) 34–5 Ye Htut 331 Yeo, George 367 Yudhoyono, Susilo Bambang 351, 353, 371 Zagara, U 70 Zahkung Ting Ying 307, 309 Zau Mai 308