Law In Myanmar Research Articles

Prefiguring a democratic state: student activism and the National Education Law in Myanmar

ABSTRACT This article aims to contribute to contemporary understanding of student activism dynamics by using insights from prefiguration literature. We use practical prefiguration and conceptual prefiguration to analyse student protests against education reform in Myanmar in 2014–2015. Using in-depth interviews with student activists, their list of educational demands, and secondary sources regarding educational legislation, we unpack the complex relationship between educational claims and national politics that characterised the students’ struggle. We show how the students reimagined a new and better version of the Myanmar state by using both educational practice and theory to fuse the future with the present, the desired with the possible.

Ethnonationalism and Cultural Heritage Law in Myanmar

This article highlights the legal and technical challenges of contemporary heritage conservation in the context of a weak democracy, ethnic unrest, and military rule. Burma was a military dictatorship from 1962 to 2010, followed by the operation of the civil government between 2011 and 2021, which was then overthrown by the military in 2021. These ten years of civil government were characterized by a reopening of the borders to the international community, initiatives towards democracy. In terms of cultural heritage, Myanmar appeared to have made progress in modernizing its legislation when the country ratified and implemented international conventions protecting tangible cultural heritage such as the World Heritage Convention, the 1970 UNESCO Convention, and the 1995 UNIDROIT Convention. In 2015, the elected parliament drafted new legislation protecting cultural heritage: the Law Protecting Ancient Objectsand theLaw on the Preservation and Protection of Ancient Buildings. How has the ratification of international conventions and new laws impacted domestic conservation practices in Myanmar? The democratic turn entailed a visible modernization of laws, policies, and conservation techniques. However, this time was also characterized by peaks of violence between the Burman government, the Rohingya people, and other ethnic minorities. Ultimately, this article reveals that the protection of heritage became closely linked to ethnonationalist ideologies that have survived the numerous changes of political regime. This is particularly true in the Burmese context. Foreign technical assistance must be aware of the country’s complexity and learn from lessons of the past.

RESPONSIBILITY TO PROTECT? THE INTERNATIONAL COMMUNITY’S FAILURE TO PROTECT THE ROHINGYA

ABSTRACT The United Nations embraced the doctrine of “Responsibility to Protect” (R2P) in 2005, which states that it is a shared responsibility of the international community to protect peoples from the atrocities of war crimes, crimes against humanity, ethnic cleansing, and genocide. Regarding Myanmar, the UN Human Rights Council claimed there were gross violations of human rights and international law in Myanmar's Rakhine state. Also, the UN Independent Fact-Finding Mission found evidence of genocide, crimes against humanity, and war crimes, and accordingly requested that the international community employ R2P to protect the Rohingya people. The UN High Commissioner for Human Rights acknowledged the clearance operation that occurred on 25 August 2017 at the hands of the Myanmar military regime was a “textbook example of ethnic cleansing”. In spite of this, the international community has taken no effective measures to protect the Rohingya community from what was an “entirely predictable” act of genocide. This paper is a qualitative investigation, a review of possible strategic reasons for why the international community has failed to protect the Rohingya. The paper relies on secondary scholarly literature, policy records, UN, government, and NGO reports, grey literature sources, and online materials. ASEAN's non-interference strategy, the OIC's dependency on diplomacy, the EU's priority for the hybrid democratic transition of Myanmar, the UN's political dialogue strategy, and the UN Security Council's structural weaknesses are obstacles to the international community preventing genocide in Myanmar. This study contributes to understanding the strategies of ASEAN, OIC, EU, UN, ICC, and the ICJ in relation to the Rohingya issue. It examines the chances of these organisations championing R2P, and also considers whether the Rohingya crisis is too intractable or difficult to resolve under current arrangements.

Hate Speech in Myanmar

Freedom of expression can be abused in concerning with race, religion or nation, politics and gender and it transfers into a hate speech. This research intends to investigate the gap between the legal ideals and actual practice, especially to understand effectiveness or impact of a draft for the Protection against and Prevention of Hate Speech Law in Myanmar. This paper analyzes the Domestic Laws such as the Constitution of the Republic of the Union of Myanmar, 2008 and the Penal Code, 1861 and the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discriminations against Women (CEDAW) and the Genocide Convention relating to international Conventions and international other documents. This research uses a qualitative approach research method, applying analysis of laws. The draft law is required to balance the right to freedom of expression and the prohibition of hate speech. International human rights laws and standards recognize all protected characteristics of human rights that should be comprised all protecting range of any actions to define “hate speech” in the draft law and should not be restricted to ethnicity, religion, nation, politic and gender. The Government should provide the upcoming Law Protection against and Prevention of Hate Speech in Myanmar urgently.

Denial of the Rohingya Genocide: Problematising Daw Aung San Suu Kyi and the Rule of Law in Postcolonial Myanmar

As the world condemns the genocide, Myanmar and Daw Aung San Suu Kyi’s government denied it and refused to accept it and argued that it sanctioned under the rule of law. This paper problematises these questions:, What is the rule of law in Myanmar? And why do they deny it? This study is qualitative in which pages of transcripts of speeches perused to find themes, settings, and meanings attributed to problematising Daw Aung San Suu Kyi and the rule of law in post-colonial Myanmar. These speeches delivered in public from 2016-2018. In analysing her speeches, the paper uses Foucauldian Discourse Analysis. On the part of Daw Aung San Suu Kyi, it found that problematising her actions and silence over the Rohingya genocide influenced her late father’s role. She continued to claim that her military father is the father of the Burmese military. She had special relations in incarceration with the army generals during her house arrest. She focused on the democratic transition which she promised in the 2015 election. This study reveals that this rule of law has purely political narratives because the generals are not accountable. This paper subsumes ongoing legal reforms in Myanmar.

Understanding Myanmar and the Way Forward for Legal Education: From Rote Learning to Community Engagement Through Clinical Legal Education

The aim of this article is to use a community needs assessment to teach law students knowledge, skills and values while identifying the areas of greatest need for access to justice services in the community. To begin, the international team of US and Myanmar law faculty and students researched literature on the country of Myanmar and various issues facing Myanmar’s citizens and its legal education system. We also had a team from Missouri Western State University on the ground in Myanmar working with the international non-governmental organization (NGO) BABSEACLE (formerly, Bridges Across Borders South East Asia Clinical Legal Education) to work with faculty and students at the Department of Law, Taunggyi. The team conducted a community needs assessment (CNA) on legal needs in Taunggyi, Myanmar, to better understand community teaching needs. BABSEACLE provides law schools with the tools and opportunities to expand clinical legal education (CLE). The team in Myanmar from Missouri Western State University consisted of Professor David Tushaus and two undergraduate students, Britane Hubbard and Kaylee Sharp, who had the opportunity to teach CLE in English to law students at Taunggyi University. Professor Tushaus served as an international clinician in residence (ICIR). BABSEACLE, operating in Myanmar since 2013, has successfully used ICIRs to introduce and strengthen CLE, by embedding experienced law professors and practitioners at local universities to serve as mentors to neophyte clinical faculty.5

MYANMAR: RELIGIOUS MINORITIES AND CONSTITUTIONAL QUESTIONS

This article examines the experience of religious minorities in Myanmar between 2011 and 2017 in the context of the 2008 constitution and a new system of governance. It highlights the precarity of religious minorities and argues that neither the constitution nor the state were reliable sources of protection or redress during this period. The first section considers the multiple identities of religious minorities with regard to citizenship and national belonging. The second section elucidates how an enabling environment for Buddhist nationalism emerged and what types of actions state and non-state actors have taken with regard to religious minorities. The final section addresses the 2008 constitution and rule of law in Myanmar in order to understand the challenges for religious minorities in securing justice and protection.

A Legal Study on the Corporate Governance from the Standpoint of Company Law in Myanmar

A Legal Study on the Corporate Governance from the Standpoint of Company Law in Myanmar

Rule of Law Inside Out in Myanmar

Opposing the Rule of Law is an exemplary ethnographic and historical study of rule of law in Myanmar from the “inside out”. Employing historical documents, court records, extensive observation and interviews, this research examines jurisprudence at the core of the Myanmar junta’s governance. Authoritarian governance has rules and a logic of its own, presenting itself at times as a rule of law but one thoroughly conflated with law and order, demonstrating, Cheesman reminds us that contemporary studies of legal development have too often focused on elements of the West’s ideal rule of law that are missing, rather than on understanding the systems that actually animate governance. Several important lines of inquiry for future research in Myanmar and elsewhere are suggested by this study, and a profound tension is apparent between Western rule of law ideals and actual practices of governance in Myanmar, with global implications—for governance in the West as well as in emerging societies of the developing world.

Promiscuity, Polygyny, and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar

AbstractMyanmar is the only Buddhism-majority country in the world that has developed and maintained a system of family law for Buddhists enforced by the courts. This article considers the construction of Burmese Buddhist law by lawyers, judges, and legislators, and the changes made through legislative intervention in 2015. It begins by addressing the creation and contestation of Burmese Buddhist law to demonstrate that it has largely been defined by men and by its perceived opposites, Hinduism and Islam. Three aspects of Burmese Buddhist law that affect women are then examined more closely. First, Burmese Buddhist law carries no penalties for men who commit adultery, although women may risk divorce and the loss of her property. Second, a man can take more than one wife under Burmese Buddhist law; a woman cannot. Third, restrictions on Buddhist women who marry non-Buddhist men operate to ensure the primacy of Burmese Buddhist law over the potential application of Islamic law. This article deconstructs the popular claim that women are better off under Burmese Buddhist law than under Hindu law or Islamic law by showing how Burmese Buddhist law has been preoccupied with regulating the position of women. The 2015 laws build on this history of Burmese Buddhist law, creating new problems, but also potentially operating as a new source of revenge.

Constructing Religion by Law in Myanmar

Since 2011 the transition to a quasi-civilian government, a slate of legal reforms have seemed urgent, none more surprising and prominent than legislative reform on religion. Yet these laws come in...

Finding the law in Myanmar

The law is difficult to find in Myanmar and the legal system is not accessible or transparent to its citizens. This article looks at some of the issues plaguing the country.

That Signifier of Desire, the Rule of Law

Calls for the rule of law sometimes signify desire for substantive political and legal equality, and sometimes are used to justify technical interventions, especially to reform courts and police. While the rule of law can generate confusion by signifying different desires for different people, in Myanmar it is more problematic when used to justify technical interventions. Mistaking intention for weakness, the advocates of institutional fixes insufficiently recognize that the rule of law’s absence in Myanmar is not an instance of failure. It has been willed. To talk of rule-of-law reform via institutions actively opposed to the rule of law is not sensible. The best prospects for the rule of law in Myanmar lie instead with the desires it signifies, and the political demands and actions it motivates.

The study on Foreign Investment Law in Myanmar

The study on Foreign Investment Law in Myanmar

The Rule of Law in Myanmar - A Response to Professor Cheesman

This is a response to Nick Cheesman's article, Thin Rule of Law or Un-Rule of Law in Myanmar, which discusses “the authoritarian legality found in Myanmar.” Cheesman characterizes the practice in Myanmar as the “un-rule of law,” noting that the system “falls a long way short of a minimalist rule of law.” In this paper, the author interrogates this assumption.

Land disputes and the ongoing development of the substantive rule of law in Myanmar (Burma)

The Myanmar Parliament has passed the Farmland Law and the Vacant, Fallow, and Virgin Lands Management Law. Both pieces of legislation form part of a legislative response as Myanmar (Burma) emerges from a sixty-year period of chronic armed conflict. Part 2 of this paper outlines the underlying grievances associated with land disputes with a focus upon Kayin (Karen) and Rakhine (Arakan) states. Part 3 critically analyses the relevant constitutional and legislative framework and the role of parliamentary bodies in light of these underlying grievances. Part 4 adopts a comparative stance and considers the approach taken in Kenya as it has sought to address similar issues. Finally, Part 5 reflects upon the role that constitutional and legislative reform in relation to land disputes plays in the ongoing development of the substantive rule of law in Myanmar (Burma).

Myanmar in 2010: The Elections Year and Beyond

One need not have been a soothsayer and, according to Dante Alighieri in The Divine Comedy, go to a very low circle of hell to predict that 2010 would be the year of elections, that all attention internally in Myanmar would be directed towards that end, and this concentration would also affect foreign relations. At the same time, no fortune teller would have been required, beyond picking the date of the elections themselves, to determine that minority issues would profoundly influence the future, as they have done since independence in 1948, and that 2010 would not witness resolution of these to-date intractable problems.1 The 7 November 2010 elections may have determined the composition of the new government, but they did not change, and specifically were not intended to change, the distribution of effective power, which still rests with the Tatmadaw (armed forces), and is likely to do so into the indefinite future. The State Peace and Development Council (SPDC) efforts ineffectual at best to assuage the minorities are unlikely to succeed for several reasons. The minorities have wanted some form of federal system, and many groups have formulated draft constitutions (illegally under Myanmar law and thus they were forced to do so outside the country) for their seven constituent states that incorporated elements of some such preferred system. To the military, however, federalism has been anathema since Ne Win declared it so in 1962. He considered it the first step toward secession, against which the military has always fought since independence. The government's Border Guard Force concept (see below) has exacerbated tensions; it would result in the effective castration of the ceasefire military of key ethnic groups, and thus has been resisted. It is a subject with which the new government in 2011 will have to deal, and there are fears it may try to do so through military force. The

Thin Rule of Law or Un-Rule of Law in Myanmar?

T he government of Myanmar has responded to worldwide dismay over the May 2009 criminal trial of democracy icon Daw Aung San Suu Kyi for allegedly violating the terms of her house arrest by characterizing it as a simple and unavoidable matter of law. State-run media outlets have rebutted arguments that the charges are baseless, erroneous and politically motivated. The Ministry of Foreign Affairs responded to criticism from the United Nations Security Council by saying that the case would “not have any political impact” and that it was being “considered and carried out as the task [sic] relating to the rule of law.” The government’s recourse to the rule of law in justifying the case, which is aimed at keeping the party leader under lock and key ahead of a planned general election in 2010, is not surprising. Like coup-makers around the world, the army in Myanmar predicated its 1988 takeover on maintenance of the rule of law. One general after the next has stressed the rule of law as a prerequisite for Myanmar becoming modern and developed. The regime has joined the nine other member states of the Association of Southeast Asian Nations in signing a regional charter that includes among its purposes and principles the enhancement of and adherence to the rule of law. Myanmar’s offi cialdom acknowledges the rhetorical force of the rule of law at least as much as its counterparts elsewhere, and like others, uses it for a variety of ulterior purposes. International lawyer Hilary Charlesworth has remarked that the rule of law has “a worthy resonance that no one can plausibly reject and yet it is malleable enough to accommodate many types of legal system.” This worthy resonance is problematic, because it encourages authoritarian regimes of