Finding Justice Scalia in Burma (original) (raw)

Dictators, Democrats, and Constitutional Dialogue: Myanmar's Constitutional Tribunal

2018

Constitutional courts are now a common part of legal reforms in transitional regimes. This is also the case in Myanmar, where in 2011 the Constitutional Tribunal was formed. Yet the operation of the Tribunal flies in the face of assumptions common to global constitutionalism. At present, external factors such as globalized judicial networks or comparative concepts of rights-based review have had little influence in Myanmar. Instead, the operation of the Tribunal can be explained by internal factors and the actions, or inaction, of elite political actors. I demonstrate this by undertaking a sociolegal analysis of the Constitutional Tribunal under President Thein Sein (2011–2012; 2013–2016) and then the National League for Democracy government (2016–2021). I identify the internal factors that have most influenced the operation of the Tribunal. In particular, I consider when and why democratically elected actors (as well as non-elected military) use the Tribunal and engage with the Constitution established by the previous authoritarian regime. As a monumental shift has taken place from direct military rule to military-led constitutionalism in Myanmar, I offer an important and timely reflection on the implications of the role of the Tribunal as a forum for constitutional dialogue between and among military dictators and democratically elected representatives.

How an authoritarian regime in Burma used special courts to defeat judicial independence

Law & Society Review, 2011

Why do authoritarian rulers establish special courts? One view is that they do so to insulate the judiciary from politically oriented cases and allow it continued, albeit limited, independence. In this article I present a contrary case study of an authoritarian regime in Burma that used special courts not to insulate the judiciary but to defeat it. Through comparison to other Asian cases I suggest that the Burmese regime’s composition and character better explain its strategy than does extant judicial authority or formal ideology. The regime consisted of war fighters for whom the courts were enemy territory. But absent popular support, the regime’s leaders could not embark immediately on a radical project for legal change that might compromise their hold on power. Consequently, they used special courts and other strategies to defeat judicial independence incrementally, until they could displace the professional judiciary and bring the courts fully under executive control.

The Common Law and the Constitutional Writs in Myanmar

Melissa Crouch (2014) ‘The Common Law and the Constitutional Writs in Myanmar’ in Melissa Crouch and Tim Lindsey (eds) Law, Society and Transition in Myanmar. Oxford: Hart Publishing, 2014

This chapter 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 since 2011 by comparison to the actual number of cases lodged, this chapter explores the socio-political dynamics of constitutional writ cases and their potential for development. It 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. While the interpretation of the scope of the writs remains with the courts, present circumstances indicate a limited potential for accountability of executive action.

Judicial Loyalty to the Military in Authoritarian Regimes: How the Courts are Militarised in Myanmar

Law & Social Inquiry, 2022

While scholars have considered the role of courts in authoritarian regimes generally, less attention has been paid to judicial-military relations. In this article I consider how courts are militarized and made subordinate and loyal to military rule. In military regimes, the courts are at risk of militarization and the process of rendering judges loyal to the military through practices such as career path socialization, selection, and restructuring of the courts. This raises an entry-exit dilemma for judges. The dilemma lies in the fact that if judges committed to civilian rule do not join the bench, they are potentially leaving the judiciary to military partisans with little prospect for reform. Yet joining the judiciary means the danger of being co-opted and adding legitimacy to the military regime or the risk of being forced out if politics shifts from civilian to military rule. Through a case study of judicial profiles in Myanmar, I explore how the loyalty of judges to the military depends on whether they are military insiders, military affiliates, civilian affiliates, or civilian outsiders. The case of Myanmar is a vivid reminder to scholars of judicial behavior that in military authoritarian regimes, judges face an entry-exit dilemma.

The Constitution in the Shadow of a Gun: Historical and Legal Views on Myanmar’s Coup D’État

Torun International Studies, 2021

The Tatmadaw's military takeover in Myanmar on the 1st of February has marked a significant step back in the country's path towards democracy. Several doubts are raised as to why the military has decided to dismiss the institutional changes that it agreed to grant the country after the Saffron Revolution of 2007 in the first place. This paper seeks to examine the current military takeover in Myanmar through the lenses of its complex post-colonial history, marked by the continuous evolution of various intra-state stakeholder's interactions, such as the Sangha, the Tatmadaw and the students. Subsequent to the historical analysis, we provide a legal outlook combing through the salient constitutional provision on the division of powers, aiming to understand if the balance thereof has been seen as an existential threat undermining the military's hegemonic position over time. Finally, we aim to offer an account on why western expectations regarding Aung San Suu Kyi as a representative of Western liberal democracy could not be factually met. We conclude that the 2007 constitution institutionalized a political system that allowed wiggle room for non-military stakeholders to obtain further democratic concessions, that could result in a significant threat to the Tatmadaw's rule. Such approach sheds outlook on the causes of the coup d'état and allows projections for the near future.

Authoritarian Straightjacket or Vehicle for Democratic Transition?: The Risky Struggle to Change Myanmar's Constitution

From Parchment to Practise: Implementing New Constitutions, CUP, 2020

How hard is it to change a constitution that was drafted by an authoritarian regime? What strategies might democratic actors adopt to change such a constitution, and what risks may they face? These dilemmas face democratic actors in Myanmar who seek to change the 2008 Constitution. In this chapter I introduce the contours and practice of Myanmar’s Constitution as a political order set in place by the former military regime. I identify and explore the different strategies that have been used to change the 2008 Constitution – formal constitutional amendment proposals in 2013-2015; informal constitutional change through judicial interpretation in the Constitutional Tribunal; and informal constitutional change in the form of the legislative innovation of the Office of the State Counsellor. These attempts at constitutional reform come with particular risks to democratic actors, personal, political and institutional. I suggest that the risks of constitutional change are heightened during the first period of a constitution, particularly if the constitution has been designed to protect the interests of the former authoritarian regime.