Description

This project investigates the directions and determinants of Myanmar/ Burma’s legal reform process. It will inquire into six areas of reform, attempting to assess progress and potential. In offers an analytical overview of law in this emerging democratic state with an emerging market economy, against a background of military authoritarianism and underdevelopment. The detailed questions will be refined in the first of two workshops (a ‘scoping’ workshop). The main questions, which drive the fundamental directions and determinants of law and development in one of Asia’s emerging areas, are as follows:

• How far are Myanmar’s legal traditions and institutions under the present legal system viable in the new circumstances?
• What is required to renovate the legal system in the light of the new situation?
• Which areas of reform are foci or likely foci of legal activity? What has been done and what issues beyond these areas should be addressed?

The activity involved in this project has the object of informing scholars, media, governments and international organisations concerning the law reform process in Myanmar/ Burma. It will lead to a new tranche of research on a neglected country. It also has the object of exploring the viability and determinants of law and development as part of the reform process in an emerging area.

Recent events in Myanmar/ Burma have taken the world by surprise. Research on Myanmar/ Burma law is urgently required as the reform process gathers speed. CALS/ NUS Faculty of Law in particular is well-placed to undertake major research in the field of legal reform in Myanmar/ Burma, and to provide a knowledge base for what will no doubt prove to be an area of intense activity in the coming years.

This second workshop draws on the findings of CALS’ Scoping Workshop, ‘Directions and Determinants in Myanmar’s Legal Reform Process’ in October 2012. That Workshop, comprising scholars from several disciplines, identified the 2008 Constitution and constitutionalism as a fundamental issue in the reform process. This was true when looking, for example, at the legislature, legislation and elections, government and the presidency, rights, justice, the legal profession and the rule of law.

Myanmar’s Constitution of 2008 was the foundation of the reform process beginning in 2010, and was frequently referred to at the 2012 Workshop. It was seen that the process for amending the Constitution was critical, and much was made of the Constitution’s rigidity, which was seen as an obstacle to reform. Nonetheless, the Constitution was seen as having potential as a positive force for reform. As one participant put it, ‘the Constitution is not seen as something positive; however, it is referred to all the time’. Parliament has embarked on a review of the Constitution by establishing a commission to look into the matter. Despite expert views that the military would use the constitution’s rigidity and its membership in both houses to block reforms, the military is not opposed to constitutional reform per se, and the current review was proposed by two generals. Inputs were sought by 31 December 2013, and the Commission’s Report is due by 31 January 2014. The Workshop could not be timelier.

In the second workshop, we discuss several substantive issues in constitutional change, and attempt to gauge the extent and potential for the entrenchment of constitutionalism in Myanmar. The context will be broad. We will focus on historical legacies; constitutional processes, electoral, legislative, and judicial; political process; and the prospects for territorial governance via federalism and other constitutional ideas of concern to minorities.

Since 2012 it has become clear that the Constitution, initially dismissed by many as being cosmetic, does matter, and considerable thought needs to be given to its reform. In this project, we examine the following:

• What is the role of the Constitution?
• How do we look at the Constitution, as an enabling force?
• Can a ‘sense of constitutionalism’ embracing the rule of law and the separation of powers emerge from the current process of reform?
• What specific reforms are now required?
• How rigid or flexible should the Constitution be?