11 AUGUST 2015
Police clash with student protestors in Myanmar. While new laws give the right to protest, people are still arrested for doing so. Photo by Reuters/Soe Zeya Tun.
Anxiety about law reform in Myanmar is highlighting problems in the country’s political transition.
Legal and constitutional reform often occurs at moments of political conflict, crisis and change. This is the case in Myanmar today.
The general assumption is that law has not played a significant role in Myanmar in the past, but that in the post-2011 transition from military to semi-civilian rule, law can and will take on a more important role in its contribution to the reform process. This assumes law will help, and not hinder.
However, 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.
Another major area of economic reform has been legislation passed to regulate the establishment of Special Economic Zones, although the concept itself is not new in Myanmar. The law grants slightly more advantageous conditions to investors, in relation to tax exemptions and land lease, although labour requirements for skilled labour are more stringent.
Overall, these economic reforms build on the legislative foundation initially laid after 1988. While they attempt to manage local and foreign interests, they inevitably remain a source of tension and conflict.
Finally, social reforms have had an impact on the role and position of civil society, and the position of individuals in relation to the state, including labor law, media, religion, education and the right to peaceful assembly. These laws have also given rise to new forms of conflict between the state and individuals, and between social groups.
Central to these reforms have been the right to organise and freedom of speech. This has included important reforms in the area of labour organisations and dispute settlement that have allowed for greater protection of the rights of workers compared to the past. A new law on freedom to demonstrate and protest has been enacted, although many people are still jailed under this law.
Strong anti-Muslim sentiment and conflict since 2012 has also led to law reform. Specifically, this has seen the proposal of four bills that address inter-religious relations and allegedly seek to ‘protect’ race and religion, that is, Burmans and Buddhists. Yet many of these bills have antecedents in previous debates and long-held prejudices. For example, the Buddhist Women’s Special Marriage Bill is not new and would simply revise and update an existing law
What these bills may potentially do is to further entrench discrimination and the marginalisation of certain groups, particularly Muslims. This is a particularly overt example of the way law engenders and exacerbates conflict.
Across these areas of reform – structural, economic and social – three patterns have emerged in the way laws have been designed to avoid and manage conflict, while also at times exacerbating conflict between different institutions or between individuals and the state.
First, these laws evince a common pattern of providing for the formation of a committee to oversee certain administrative processes, such as the consideration of an application for an investment permit or licence to use land. These committees usually have no independence and are given extremely broad discretion under these laws to manage disputes without accountability.
Second, there is a tendency to exclude courts from reviewing executive decisions to keep complaints against government bodies out of court. Many decisions are said to be ‘final and conclusive’ – as an attempt to remove the jurisdiction of the court to hear these cases. Legislative reform has limited the potential role of the courts because few executive decisions are able to be challenged.
Third, there have been greater levels of participation and transparency in law-making than in the past. This has facilitated a strategy of managing conflict, in terms of taking into account different perspectives and at times revising draft laws on the recommendations of various civil society groups.
Yet it has also led to local concerns of unwarranted foreign influence in the drafting process, resulting in new forms of conflict and tension.
As such Myanmar’s law reform process is more a reflection of past patterns in law-making, and therefore maintains continuity in how law is used to manage and avoid conflict. Law reform has also exacerbated conflict between individuals, or between individuals and the state.
Constitutional and legal reform is an inherently uncertain process, and law reform in any country is never easy. Law reform during times of political transition is even more fraught. The legislative agenda over the past few years in Myanmar is one indication of deep uncertainty in society and a pervasive sense of insecurity about the future.
Melissa Crouch is a Lecturer at the Law Faculty, the University of New South Wales.
This article is based on a talk presented at the 2015 Myanmar/Burma Update held at the Australian National University. Listen to podcasts from the conference onSoundcloud.
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