Rule of Law - Burma/Myanmar-specific
|Title:|| ||Law and conflict in Myanmar
|Date of publication:|| ||11 August 2015|
|Description/subject:|| ||"...in Myanmar, while law has at times been used to manage and avoid conflict, it can also exacerbate it.
This is evident when looking at three areas of legal reform between 2010 and 2015: structural, economic and social reforms.
Structural reforms established the country’s new constitutional and legal system. Many of these laws were intended to avoid conflict between institutions, primarily by giving the President and the executive significant control, including over the courts.
And while many offices and institutions may sound new, they are rather old institutions or positions that have been rebranded, such as references to the former chairman of the State Peace and Development Council (SPDC) being replaced with the President.
Further, the new laws passed since 2010 continue to subordinate the courts to executive and parliamentary control. In fact, the courts are the branch of the government that has been least affected by the transition process.
Meanwhile, Myanmar’s economic reforms have been geared towards greater foreign investment and the market economy, including the banking sector, the establishment of special economic zones, and potential reform of the Company Law.
These economic reforms generally prevent individuals from challenging government decisions in court, and have also generated conflict between local stakeholders and foreign investors. One of the first and most significant laws passed in terms of economic reforms was the Foreign Investment Law. This raised tension between local and foreign interests include rights to land use, tax concessions, and standards in terms of labour requirements for skilled positions..."|
|Author/creator:|| ||Melissa Crouch|
|Source/publisher:|| ||"New Mandala"|
|Date of entry/update:|| ||27 August 2015|
|Title:|| ||Road to democracy under repair?
|Date of publication:|| ||14 July 2015|
|Description/subject:|| ||"...Myanmar’s political transition is an unusual phenomenon: it is self-made, without any external agency supervising, monitoring or enforcing it. It also derives its power, and authority from the popular support it generates, with or without elections to legitimise it, because of the wider political support it enjoys for the moment.
Any “incentives” for those in real control to continue the transition are contained within the process, either in terms of positive options that become available (such as substantial new trade or investment or funding), or in terms of negative options that disappear (lifting of political sanctions, economic sanctions, and inclusion in regional development arrangements, rather than exclusion).
The other main characteristic of Myanmar’s transition is that it is tolerated and in principle supported by those giving up power – the military – who can allow it to continue, or who can block it, partially or totally. In all of this, external influences play an important part, but are not critical; they can be supportive, collaborative and expect considerable benefits for their own interests, but they should anticipate a perhaps less than perfect “Myanmar” solution, and cannot count on imposing their own wishes or creating “mirror” copies of their own socio-economic paradigms. In Myanmar, new institutions are being established but are not necessarily yet fully tested; and old institutions are being (slowly) transformed, but are often still incapable of producing the hoped for results.
In such circumstances, it can hardly be surprising that many of Myanmar’s “reforms” since 2011 are incomplete, are not delivering all the outcomes hoped for, or in many instances, have not yet even begun to be carried out in any concrete way. Some changes can be implemented by announcement alone, and might rely on general goodwill or on willingness to give things “a go” to see whether or not they can work reasonably well..."|
|Author/creator:|| ||Trevor Wilson|
|Source/publisher:|| ||"New Mandala"|
|Format/size:|| ||html, pdf|
|Date of entry/update:|| ||14 July 2015|
|Title:|| ||MYANMAR Country Profile prepared by the ICJ Centre for the Independence of Judges and Lawyers
|Date of publication:|| ||June 2014|
|Description/subject:|| ||"Myanmar has thus far failed to ratify most human rights treaties.
Judicial independence is provided for in law, but not respected in practice. In particular,
the degree of control exercised by the Executive over the appointment process and the
lack of transparency over criteria for selection and promotion, insufficient security of
tenure, executive control over the budget and insufficient pay and training are inconsistent
with international standards.
Lawyers lack a self-governing professional body that can defend the profession’s integrity
and professional interests. Although their independence has increased substantially since
2011, on-going challenges remain, such as interference in politically sensitive and criminal
cases. Structural problems such as the poor state of legal education have yet to be
|Source/publisher:|| ||International Commission of Jurists - Centre for the Independence of Judges and Lawyers|
|Format/size:|| ||html (372K)|
|Date of entry/update:|| ||10 October 2014|
|Title:|| ||Constitutional Reform in Myanmar: Priorities and Prospects for Amendment
|Date of publication:|| ||January 2014|
|Description/subject:|| ||"...The Constitution of the Republic of the Union of Myanmar, Myanmar’s third and current constitution (“the Constitution”), was adopted following a referendum on 10 May 2008, held just eight days after Cyclone Nargis, the most devastating natural disaster in Myanmar’s history. There was little or no public participation in the production of the text of the Constitution; indeed the proposed text was published just one month before the referendum and was unavailable to a large part of the electorate....
2. However, Myanmar has recently taken a significant step towards participatory democracy by inviting public views on the amendment of the Constitution. In July 2013 the Joint Committee for Reviewing the Constitution of the Republic of the Union of Myanmar (“the Committee”) was established with the aims of:
guaranteeing the perpetuation, peace, stability and development of the Republic;
bringing eternal peace to all national races and ethnic people by bringing unity between them; and
carrying on democratic reforms for building the state.
One of the Committee’s first actions was, on October 3 2013, to announce a nationwide consultation exercise aimed at garnering advice from a broad range of political parties, organizations and individuals as to how the Constitution might be amended. This exercise ran until December 31 2013. The Committee has stated that it received 28,247 letters in response....
3. During the consultation period, the Bingham Centre for the Rule of Law (“the Bingham Centre”) took part in a project to encourage participation by the citizens of Myanmar in that consultation exercise. The Bingham Centre assisted in many well-attended workshops across different parts of Myanmar between October and December 2013. As a result of these workshops, over 500 people submitted responses to the Committee. A summary of the Bingham Centre’s experience of people’s priorities for reform is set out below....
4. However, the immediate priority for reform identified by the overwhelming majority of delegates at the numerous workshops was to amend the onerous procedure for amending the Constitution, without which reform is likely to be extremely difficult. This paper seeks to put those popular concerns into context by comparing to other constitutions around the world the three elements of this procedure, which, in our view, combine to make it so onerous. Those three elements are:..."|
|Author/creator:|| ||Naina Patel, Alex Goodman and Naomi Snider|
|Source/publisher:|| ||Bingham Centre for the Rule of Law (Working Paper No 2014/01)|
|Format/size:|| ||pdf (768K)|
|Alternate URLs:|| ||http://www.burmalibrary.org/docs19/Bingham-2014-01-myanmar_constitutional_reform.pdf|
|Date of entry/update:|| ||20 October 2014|
|Title:|| ||The governance palimpsest: order maintenance in Southeast Burma
|Date of publication:|| ||2014|
|Description/subject:|| ||Focus on Karen refugees....."The force of habit, the awe of traditional command and a sentimental attachment to it, the desire to satisfy public opinion - all combine to make custom be obeyed for its own sake. In this the ‘savages’ do not differ from the members of any self-contained community with a limited horizon, whether this be an Eastern European ghetto, an Oxford college, or a Fundamentalist Middle West community. But love of tradition, conformism and the sway of custom account but to a very partial extent for obedience to rules among dons, savages, peasants, or Junkers. [. . .] in the main these rules are followed because their practical utility is recognized by reason and testified by experience."
(Malinowski 1926).....Re the attached sales flyer for the book, the publishers say that a paperback version will be out in July or August.|
|Author/creator:|| ||Kirsten McConnachie|
|Source/publisher:|| ||"Governing Refugees - Justice, Order and Legal Pluralism" (Chapter 4)|
|Format/size:|| ||pdf (619K)|
|Date of entry/update:|| ||24 February 2015|
|Title:|| ||The struggle for ownership of justice
|Date of publication:|| ||2014|
|Description/subject:|| ||"We lawyers just cannot help being Darwinian. We simply cannot shake off our assumption that some legal cultures are more developed than others. We prefer written law to oral law; we are happier with professional judges than with people’s rough justice; and — need I say? — we just love cultures that have their own lawyers.".....Re the attached sales flyer for the book, the publishers say that a paperback version will be out in July or August.
(Andrew Huxley 2011)|
|Author/creator:|| ||Kirsten McConnachie|
|Source/publisher:|| ||"Governing Refugees - Justice, Order and Legal Pluralism" (Chapter 6)|
|Format/size:|| ||pdf (599K)|
|Date of entry/update:|| ||24 February 2015|
|Title:|| ||Burma and the Road Forward: Lessons from Next Door and Possible Avenues Towards Constitutional and Democratic Development
|Date of publication:|| ||25 July 2013|
|Description/subject:|| ||"The chapter of authoritarian rule may finally be ending
in Burma’s complicated narrative. The Burmese government
has taken visible steps towards democratic reform. Despite
reports of military control and intimidation at the polls,the
country transitioned to civilian rule in 20103 after fifty years
of control by a military junta. The government also released
the country’s preeminent democratic leader and icon, Aung
San Suu Kyi, who has been on house arrest sporadically
since 1989. Rapid political reforms soon followed.
The ability to reconcile Burma’s political history and
transition to a democracy will be a challenging one. A
successful transformation requires more than legal
formalism; legal formalism cannot work without the
development of a civil society. However, legal formalism, as
Suu Kyi has urged, ensures a rule of law that will allow
Burmese citizens, including minority groups, to protect
themselves from their government’s historical abuse of power.
This Comment discusses how the expansion of legal rights for
individuals and minorities is the direct way for Burma to
secure a democratic future..."|
|Author/creator:|| ||Connie Ng|
|Source/publisher:|| ||Santa Clara Law Review (Vol 53, No. 1)|
|Format/size:|| ||pdf (198K)|
|Date of entry/update:|| ||21 August 2014|
|Title:|| ||BURMA: Criminalization of rights defenders and impunity for police
|Date of publication:|| ||29 April 2013|
|Description/subject:|| ||The Asian Human Rights Commission condemns in the strongest terms the announcement of the commander of the Sagaing Region Police Force, Myanmar, that the police will arrest and charge eight human rights defenders whom it blames for inciting protests against the army-backed copper mine project at the Letpadaung Hills, in Monywa. The commission also condemns the latest round of needless police violence against demonstrators there.|
|Source/publisher:|| ||Asian Human Rights Commission (AHRC)|
|Format/size:|| ||html (45K)|
|Date of entry/update:|| ||29 April 2013|
|Title:|| ||Myanmar Rule of Law Assessment
|Date of publication:|| ||March 2013|
|Description/subject:|| ||Executive Summary:-
• In June 2012, Perseus Strategies and New Perimeter,
in partnership with the Jacob Blaustein Institute for
the Advancement of Human Rights, initiated a broad
rule of law assessment of Myanmar
• Upon completion of this assessment, New Perimeter
and Perseus Strategies will launch a program
where potentially thousands of pro bono hours from
the global law firm DLA Piper will be invested into
a focused project to advance law reform efforts
• On November 7, 2010, Myanmar held its first
election in 20 years – much of the reaction to
the reforms instituted by President Thein Sein,
inaugurated in March 2011, reflects the hope that
the country can break free of its authoritarian past
that involves widespread human-rights abuses
• Following by-elections in April 2012, Aung
San Suu Kyi has joined the government as
an elected MP, along with several dozen
representatives of the National League for
Democracy and ethnic political parties
• Major reform efforts have been initiated by the
government across an array of areas, which has
reinforced these hopes, but there remains a large
gap between public perception and the reality of
the impact of reform efforts on the ground
• There is a strong consensus across the political
spectrum that advancing the rule of law and law
reform efforts are a top priority, but the government,
opposition, and other parties have different views
as to the sequencing of specific efforts...
• President Thein Sein and his allies in the
government are making genuine reforms;
however, many government institutions
are quite fragile and the role of the military
• For these changes to be permanent and
irreversible, constitutional reform is important,
but it is unclear if the government will undertake
such efforts in the near term
• Law reform is being implemented from the
top‑down, but these efforts must be driven into
government bureaucracies and down to the
local level, and coupled with major grassroots
efforts to educate people about their rights
• The judicial system is in need of large‑scale
reform – corruption is a serious issue and
decisions are sometimes made by the
• The parliament will be a significant player in law
reform efforts, but requires major investment to build
its capacity so its contributions can be meaningful
• Myanmar requires unprecedented effort to create
a criminal defense and legal aid system,
reconstitute the Bar Association, and rebuild
the legal education system
• The Myanmar National Human Rights
Commission has potential, but should be
reconstituted by the parliament as an independent
government agency, in accordance with the
• The government has signed several new treaties,
but reform efforts could also be advanced
through the signing and ratification of the
Int’l Covenant on Civil and Political Rights (ICCPR),
Int’l Covenant on Economic, Social, and Cultural
Rights (ICESCR), and Convention Against Torture
and Other Cruel, Inhuman, and Degrading
Treatment (CAT), which the government has
indicated its intention to do.|
|Source/publisher:|| ||DLA-Piper (New Perimeter), Perseus Strategies, Jacob Blaustein Institute for the Advancement of Human Rights|
|Format/size:|| ||pdf (1.3MB)|
|Date of entry/update:|| ||14 March 2013|
|Title:|| ||The Rule of Law in Myanmar: Challenges and Prospects
|Date of publication:|| ||20 December 2012|
|Description/subject:|| ||Report of the International Bar Association’s Human Rights Institute (IBAHRI) Supported by the IBAHRI Trust and the Open Society Foundations.....Contents:
1.1 The IBAHRI delegation and its mandate;
1.2 Interviews and consultations;
1.3 The rule of law: an overview...
2. Background and History:
2.1 Myanmar in facts and figures;
2.2 Myanmar before 1988;
2.3 Myanmar in the two decades after the 1988 coup;
2.4 The 2008 Constitution;
2.5 Myanmar since 2008...
3. The Civil Sphere: Social, Economic, Cultural,
Civil and Political Rights:
3.2 Current legal structure;
Access to courts and the administration of justice;
Freedom of expression, association and assembly;
3.4 Conclusion ...
4. The Political Sphere: the Branches of Government:
4.2 Current legal structure;
5. The Legislative Sphere: Parliament and the
5.2 The structure of the legislature;
The Bill Committee of the Lower House;
The Complaints Committee of the Upper House;
6. The Myanmar National Human Rights Commission:
6.2 Current legal structure;
7. The Military Sphere: the Role of the Army:
7.2 Current legal structure;
8. The Judicial Sphere (I): Courts and Judges:
8.2 Current legal structure;
9. The Judicial Sphere (II): the Legal Profession:
9.2 Current legal structure;
Former and current lawyers;
The Attorney General and Justice Soe Nyunt;
10. Conclusions and Recommendations...
A. General Assembly Resolution 66/102 on the Rule of Law at the
National and International Levels...
B. The Peaceful Demonstration and Gathering Act 2012...
C. Principles Relating to the Status of National Institutions
(The Paris Principles)...
D. UN Basic Principles on the Independence of the Judiciary ...
E. UN Basic Principles on the Role of Lawyers...
F. IBA Standards for the Independence of the Legal Profession...
G. UN Guidelines on the Role of Prosecutors...
H. International Association of Prosecutors’ Standards of
Professional Responsibility and Statement of the Essential
Duties and Rights of Prosecutors...
I. The Venice Commission Report’s Checklist for Evaluating the
Rule of Law in Single States...
List of Acronyms|
|Source/publisher:|| ||International Bar Association’s Human Rights Institute (IBAHRI)|
|Format/size:|| ||pdf (409K), html|
|Alternate URLs:|| ||http://www.ibanet.org/Document/Default.aspx?DocumentUid=DE0EE11D-9878-4685-A20F-9A0AAF6C3F3E
|Date of entry/update:|| ||20 December 2012|
|Title:|| ||BURMA: Continued use of military-issued instructions denies rights
|Date of publication:|| ||05 November 2012|
|Description/subject:|| ||"Much has been made in recent times of the continued use in Burma of antiquated and anti-human rights laws from the country's decades of military rule, as well as from the colonial era. While legislators discuss the amendment or revocation of some laws, and the issue is debated in the public domain, much less is said of the superstructure of military-introduced administrative orders that officials around the country continue to employ in their day-to-day activities, invariably in order to circumscribe or deny human rights.
Among these orders are some being used to restrict or prevent access to land of people who rightfully occupy or cultivate the land, as in the case of villagers from some 26 villages affected by the copper mining project in the Letpadaung Mountain range in Sagaing Region, on which the Asian Human Rights Commission has previously spoken (AHRC-PRL-044-2012). The AHRC has obtained copies of a series of orders issued by Zaw Moe Aung, chief administrator of Sarlingyi Township, where villagers have been fighting since mid-2012 against the expansion of copper mining in the region onto their farmlands. The orders, issued under section 144 of the Criminal Procedure Code, prohibit villagers from access to their farmlands or any form of use of the farmlands, such as for the grazing of cattle. The latest orders expired at the end of October; however, people in the region expect that they will be renewed, or that in any event they will simply be denied access to their land, which is being taken over by an army-owned company and its partner..."|
|Source/publisher:|| ||Asian Human Rights Commission (AHRC)|
|Date of entry/update:|| ||05 November 2012|
|Title:|| ||LSE discussion roundtable on "Rule of Law" with Daw Aung San Suu Kyi (Full Video)
|Date of publication:|| ||19 June 2012|
|Description/subject:|| ||"Burmese democracy campaigner Aung San Suu Kyi told an LSE audience that fairness and freedom can only be restored to her country under the rule of law.
Speaking on her first visit to the UK for 24 years, the Nobel Peace Prize winner said that unity in Burma and a new constitution could only be achieved within a legal framework. “This is what we all need - unless we see that justice is to be done, we cannot proceed to genuine democracy”, she told an audience of students, staff and visitors.
She said that she condemned violence wherever it occurred, but that a full understanding of its causes was key: “Resolving conflict is not about condemnation, it’s about finding the roots, the causes of that conflict and how they can be resolved in the best way possible.”
The leader of the National League of Democracy in Burma, who has spent much of her life under house arrest on the orders of the country’s military rulers, was speaking as part of a round-table discussion at LSE featuring academic and legal experts.
LSE Director Judith Rees reminded listeners that the event was taking place on Aung San Suu Kyi’s 67th birthday and that everyone wanted to celebrate that she was able to enjoy the day in freedom.
Professor Rees said: “Your trip to the UK will go down in history and I’m sure that it’s an emotional trip for you.”
She also invited the crowd to sing Happy Birthday, adding: “It’s a tribute not just to you but to all those who have campaigned for freedom in Burma.”
Alex Peters-Day, General Secretary of LSE’s Students’ Union, presented the guest with a surprise present - a photograph of her late father taken in London in 1947 - and with an LSE baseball cap, a traditional gift for visiting leaders.
The panel discussion also involved LSE professors Mary Kaldor and Christine Chinkin, Burmese activist and visiting fellow Dr Maung Zarni, Oxford professor Nicola Lacey and barrister Sir Geoffrey Nice QC.
Professor Kaldor ended the event by passing on a question from a student who’d asked Aung San Suu Kyi how she had found her strength to continue her campaigning. She answered: “It’s all of you, and people like you, who give me the strength to continue. And I suppose I have a stubborn streak in me.” "..."...
Speaker(s): Daw Aung San Suu Kyi, Professor Christine Chinkin, Professor Nicola Lacey, Sir Geoffrey Nice QC, Dr Maung Zarni
Recorded on 19 June 2012 in Peacock Theatre, Portugal Street.
Daw Aung San Suu Kyi is Chairman of the National League for Democracy (NLD) and Member of Parliament of Kawhmu constituency in Burma. She was awarded the Nobel peace prize in 1991.
Christine Chinkin, FBA, is currently Professor in International Law at the London School of Economics. She has widely published on issues of international human rights law, law, including as co-author of The Boundaries of International Law: A Feminist Analysis.
Nicola Lacey holds a Senior Research Fellowship at All Souls College, and is Professor of Criminal Law and Legal Theory at the University of Oxford, having previously held a chair at the London School of Economics. Nicola’s research is in criminal law and criminal justice, with a particular focus on comparative and historical scholarship. In 2011 she won the Hans Sigrist Prize for scholarship on the rule of law in modern societies.
Sir Geoffrey Nice QC is a barrister; he is a signatory of Harvard’s Crimes in Burma report. Sir Geoffrey is a member of Burma Justice Committee and works with NGO's and other groups seeking international recognition of crimes committed in conflicts; represents government and similar interests at the ICC.
A Burmese native, Dr Zarni is a veteran founder of the Free Burma Coalition, one of the Internet's first and largest human rights campaigns and a Visiting Fellow at the Civil Society and Human Security Research Unit, LSE. His forthcoming book, provisionally titled Life under the Boot: 50-years of Military Dictatorship in Burma, will be published by Yale University Press.
Mary Kaldor is professor of Global Governance in the Department of International Development and Director of the Civil Society and Human Security Research Unit at LSE. She writes on globalisation, international relations and humanitarian intervention, global civil society and global governance, as well as what she calls New Wars. "|
|Source/publisher:|| ||Democratic Voice of Burma (DVB) via Youtube|
|Format/size:|| ||Adobe Flash (1 hour, 2 minutes)|
|Date of entry/update:|| ||20 June 2012|
|Title:|| ||The ‘Rule of Law’ in Burma
|Date of publication:|| ||01 February 2012|
|Description/subject:|| ||"Over the past several months, Burma’s pro-democracy icon and opposition leader Aung San
Suu Kyi has constantly repeated the refrain that the government must establish the “rule of
That’s a worthwhile goal, as well as a necessary achievement if Burma is going to raise the
quality of life and standard of living for its 54 million long-oppressed and impoverished
In the words of William H. Neukom, the president of the World Justice Project (WJP), “The
rule of law is the foundation for communities of opportunity and equity—it is the predicate for
the eradication of poverty, violence, corruption, pandemics and other threats to civil society.”
But what does the “rule of law” mean?..."|
|Author/creator:|| ||Stephen Bloom|
|Source/publisher:|| ||"The Irrawaddy"|
|Format/size:|| ||pdf (94K), html|
|Alternate URLs:|| ||http://www2.irrawaddy.org/article.php?art_id=22960|
|Date of entry/update:|| ||21 July 2012|
|Title:|| ||Thin Rule of Law or Un-Rule of Law in Myanmar?
|Date of publication:|| ||2010|
|Description/subject:|| ||"...In this article I examine the rule-of-law language and practices of the state
in Myanmar in terms of the “thin” rule of law, which is sometimes described
as “rule by law.” I am not advocating this type of rule of law. Rather, I am
interested in how it can be used to explore the sort of authoritarian legality
found in Myanmar, and to advance more critical study of Asian governments’
stated commitments to the rule of law..."|
|Author/creator:|| ||Nick Cheesman|
|Source/publisher:|| ||Pacific Affairs: Volume 82, No. 4 Winter 2009/2010|
|Format/size:|| ||pdf (77K)|
|Date of entry/update:|| ||18 August 2014|
|Title:|| ||THE RULE OF LAW AND COMMERCIAL LITIGATION IN MYANMAR
|Date of publication:|| ||2000|
|Author/creator:|| ||Alec Christie|
|Source/publisher:|| ||Pacific Rim Law & Policy Journal Association|
|Format/size:|| ||pdf (896K-original; 304K-OBL version)|
|Alternate URLs:|| ||http://www.burmalibrary.org/docs15/Rule_of_Law_in_Myanmar-red.pdf|
|Date of entry/update:|| ||30 April 2013|