Law & Constitutionalism in Myanmar: A Year in Review

Jesse Hartery discusses some of the legal and constitutional changes in Myanmar over the last year.

This post is part of Tea Circle’s “2018 Year in Review” series, which looks back at developments in different fields over the last year.

Myanmar has had a busy and controversial year on the legal and constitutional fronts. There have been important victories, moments where the status quo has prevailed, and significant setbacks which have made clear that authoritarianism is not a thing of the past. In this contribution, I canvass two distinct areas: (1) important legislation adopted at the national level; and (2) constitutional transformation and usage. The goal is to provide an account of what Myanmar has experienced in order to encourage a wider conversation about these developments. The transition to democracy is not an easy one. It takes time and effort to build a climate conducive to democratic accountability, federalism, the rule of law, and human rights. The solution is not to abandon the fight, but to commit to moving the dial every single day.

Key Legislative Changes at the Central Level

Two pieces of legislation have received significant attention in the last year: (1) the changes to the Telecommunications Law; and (2) the adoption of a new Companies Law. These laws are on completely different ends of the spectrum. The former is known to pro-democracy activists for its crackdown on freedom of expression and freedom of the press, while the latter is economic in nature and reflects a fundamental shift in Myanmar’s attitude towards foreign investment.

The Telecommunications Law, which was adopted in 2013 during former General Thein Sein’s tenure, was meant to regulate private telecom operators. Despite its stated aim, the military-backed Union Solidarity and Development Party managed to adopt section 66(d), which has been used to stifle political speech. For example, Myo Yan Naung Thein, the secretary of the National League for Democracy’s Central Committee for Research and Strategy Studies, was sentenced to six months in prison in April 2017 for writing a Facebook post in which he criticized Senior General Min Aung Hlaing. The editor-in-chief of The Voice Daily, Kyaw Min Swe, and one of the paper’s columnists were charged in June 2017 because they published a piece mocking the military. In other words, military leaders were able to find a new way to create political prisoners. To the surprise of many, this section has been used more frequently since the NLD took control of the civilian arm of the government.

After criticism of this law reached its zenith, campaigns were launched to scrap the measure altogether. Ultimately, rather than repealing the provision, the Pyidaungsu Hluttaw approved certain amendments to the law in August. Evidently, military MPs were opposed because, in their view, “national security” was more important. Somehow, it seemed the free exchange of ideas and political dissent was a threat to national security. We should not be surprised to see this type of rhetoric coming from military officers.

The problem is that the amendments brought are largely cosmetic because section 66(d) is still on the statute books. Although insignificant, now only the “defamed” person can pursue a prosecution under this law, unless a third party has been given the legal authority to pursue it for them. In addition, bail can now be granted, the maximum prison sentence has been reduced from three to two years, and three grounds for making a complaint were removed. A report published in December by Free Expression Myanmar demonstrates that, despite these amendments, no real change has actually occurred.

There are many problems with the Telecommunications Law but two of them are noteworthy. First, the section at issue provides criminal sanctions for anyone found guilty of “extorting, defaming, disturbing or threatening any person by using any telecommunications network”. This is an extremely broad and vague provision that does not define key terms. In other words, it fails to meet international law standards for intelligibility. Article 19(3) of the International Covenant on Civil and Political Rights indicates, among other things, that restrictions on freedom of expression must be “provided by law”. This requirement will only be met if the legal rule is: (1) accessible; and (2) “formulated with sufficient precision to enable [a] citizen to regulate his conduct”. While some of the words in this provision may be justified because they are directed at threats to commit violence (for example, “threatening any person”), others leave a reasonable person wondering how to comply with the law (for example, “disturbing” any person). In addition, while many democracies recognize some limits on freedom of expression (like hate speech or speech inciting violence), political speech is essential to a free and democratic society, which is why liberal democracies strive to protect it.

Second, and equally troubling, these prosecutions can be advanced by citizens themselves. In fact, most cases are brought by public officials and military officers against those who dare criticize them. This means that there is no prosecutorial discretion. Criminal prosecutions that seek to deprive someone of their liberty are usually brought by the state for the sake of the public at large, while civil claims can be brought by individuals and lead to monetary compensation. This distinction limits frivolous and vexatious claims and ensures that criminal charges leading to imprisonment are only pursued after an independent investigation by state prosecutors. Prosecutorial discretion also ensures that if the state feels, at any point in the process, that it is not in the public interest to pursue a criminal prosecution, it can abandon it entirely. One would expect the NLD government, the Attorney General’s office and its prosecutors to throw out such prosecutions, but they simply cannot do that. In addition, it is important to note that the UN Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression has recommended that criminal “defamation” laws of this kind should be abolished altogether and replaced with civil remedies because of the chilling effect potential criminal sanctions can produce. In that sense, if this provision is not repealed, it should at the very least have a political speech exception and be brought under the control of state prosecutors to limit its abuse.

Myanmar also adopted a new Companies Law in 2017, which replaces the previous version adopted in 1914. This legislation stands as one of the major economic reforms of the NLD. The new law allows foreign investors to hold up to 35% of shares in local companies without being classified as foreign entities and allows foreign citizens to trade shares on the Yangon Stock Exchange. In other words, these changes will be a major boon to Myanmar’s economy by attracting foreign investment and providing much needed capital for further development.

Former President Htin Kyaw approved the law in early December after it passed both chambers of the Pyidaungsu Hluttaw, but it has yet to come into force. The executive branch is expected to give effect to the legislation on August 1st, 2018. Some have criticized the NLD government for dragging its feet and failing to give effect to the law immediately. While their concerns are warranted, investors also need to understand that implementing a law of this kind – a complete revamp of corporate law – takes time. Moreover, it is important to note that the peace process is not a peripheral consideration. A country in the throes of civil war is not exactly conducive to long-term stable investments. Economic development will be difficult if the democratization and federalization processes do not come to fruition, because some regions will be denied the opportunity to develop as a result of continued instability and investors will lack the security needed to maintain their investments in Myanmar.

Constitutional Transformation and Usage

Next, I want to address the constitutional transformations that have taken place in the last year. Constitutional law scholars have long explained that constitutionalism is about more than written text. British constitutionalist A.V. Dicey made clear that constitutional law includes “the laws of the constitution” and “conventions of the constitution”. The former are rules of law that can be enforced by courts, while the latter are considered rules that can only be enforced in the political arena. In his work Introduction to the Law of the Constitution, Dicey explained the political constitution in this way:

The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the ‘conventions of the constitution,’ or constitutional morality. [emphasis added]

In that sense, Myanmar’s transition to democracy and federalism can be evaluated not only by the changes (or lack thereof) that have been made to the written text of its Constitution, but also by its ability to create norms of constitutional morality that further both principles.

The recent presidential transition is a welcome sign from the standpoint of constitutional morality because it demonstrates that changing one of the nation’s top executive posts (the other being Senior General Min Aung Hlaing) can be done peacefully. Former President Htin Kyaw resigned on March 21st and was quickly replaced by the Speaker of the Pyithu Hluttaw, Win Myint, on March 28th after a vote in the Pyidaungsu Hluttaw, as provided by section 60 of the 2008 Constitution. Granted, as State Counsellor, Aung San Suu Kyi evidently maintains significant control over the civilian arm of the government as per the State Counsellor Law passed in 2016. Nevertheless, this serves to demonstrate that the transition of power can be done in a calm and orderly fashion, without threats from the military establishment. It sets an important precedent and is a constitutional practice that should continue.

In addition, the second meeting of the 21st century Panglong Conference, which saw 15 ethnic armed groups attend, took place in May 2017. During the meeting, delegates adopted 37 principles reflecting a variety of commitments related to the political, economic and social sectors. Of importance to the federalization process, it was recognized that each national ethnic race would be considered equal, be given the authority to protect their languages and cultures, and that the executive, legislative and judicial branches of government would be clearly divided between the two orders of government. That said, many of the principles agreed to are broad and fail to get into some of the detail that would be expected at this point in the process.

Despite the slow pace of the Conference, it is important to recognize how important these meetings are and how committed the current administration is to the peace process. This Conference has as its goal to see an end to the civil war through the adoption of a new Constitution dedicated to democratic and federal principles. The process is itself an articulation of constitutional morality. The government has recognized that constitutional change using the amendment procedure of the Constitution is not enough. It has placed great weight on getting ethnic minorities onside. In a speech marking the 70th anniversary of Burmese independence, former President Htin Kyaw put it best when he said: “We are working for the emergence of a democratic state based on the principles of freedom for all ethnic national races, justice, equality and [the] right of self-determination.” This process could be moving faster, but there is no doubt that the NLD is committed to its successful completion through negotiation with ethnic minorities. The problem is that the civilian government still does not control the military, which means that for many ethnic groups stuck in a long war with the Tatmadaw, no change has actually occurred.

All this being said, two points stand out as failures on the constitutional front: (1) the actions taken against Harn Yawnghwe; and (2) the criticism leveled at the Chief Minister of Yangon Region.

First, weeks after the second meeting of the 21st century Panglong Conference came to an end, it was reported that Harn Yawnghwe, the son of Myanmar’s first President Sao Shwe Thaike, was blacklisted from Myanmar. A presidential spokesperson, Zaw Htay, then walked back these claims and indicated that Yawnghwe’s visa was downgraded from multiple-entry to social, which means his ability to go in and out of Myanmar has been limited. He has been an important part of the pro-democracy movement since the 8888 uprisings and is currently the executive director of the Euro-Burma Office, an entity that has supported and advised ethnic armed groups and civil society organizations. Given his past, broad experience and networks in Myanmar, former General Thein Sein’s government had asked him to participate in the peace process. After 48 years in exile, he returned to Myanmar to do just that. As of 2017, however, it seems the NLD government is uninterested in allowing an individual who shares their values of promoting peace, federalism and democracy to be part of the process. This is conduct unbecoming of a nascent democracy, especially one that is trying to build bridges with ethnic minorities. Harn Yawnghwe has done and is doing important work for his country. Voices like his that are deeply connected to ethnic minority groups should not be sidelined. If the NLD is seeking a positive end to the peace process by achieving a genuine federal union, these are the people it cannot afford to ignore.

Second, as I explained in a previous article, when the Chief Minister of Yangon Region criticized the military’s role in state institutions in July 2017, his comments were condemned by Senior General Min Aung Hlaing and he was forced to apologize by the NLD. This is inconsistent with both democracy and federalism. If democracy is to flourish in Myanmar, political dissent must be accepted, especially on an issue as important as civilian control of the military. For federalism to work, sub-national leaders must be allowed to chart a course of their own and express views that are inconsistent with the central authority’s policy or tone. It is not by dictating terms from the centre that a federal state will meet its promise of unity in diversity. Whether or not a local leader comes from the same party as the central government, federalism recognizes that sub-national entities are not subordinate to the central authority. Of course, Myanmar does not currently have a federal Constitution, so this was bound to happen. That being said, if the NLD wants to create the groundwork for a federal state, actions of this nature should be avoided. If constitutionalism is about more than written text, this sets a bad precedent for sub-national autonomy going forward.

***

In sum, the two major legal and constitutional victories are the passing of a Companies Law and the successful presidential transition. I would argue that while the NLD’s commitment to the peace process is important from a constitutional standpoint, the slow pace of the 21st century Panglong Conference and the military’s continued attacks on ethnic minorities are deeply problematic. More specifically, the human rights violations being perpetrated throughout the country are a cause for concern if Myanmar is truly committed to peace and ethnic reconciliation. The changes made to the Telecommunications Law have also maintained the status quo. In fact, given that two Reuters journalists, Wa Lone and Kyaw Soe Oo, were arrested for supposedly violating the Official Secrets Act by doing their jobs of reporting on the human rights violations in Rakhine State, it seems the freedom of expression front can be counted as a failure. The actions taken against Harn Yawnghwe and Phyo Min Thein, while not nearly as troubling as the attacks on human rights, are also significant. They demonstrate that Myanmar still has much work to do to complete its democratization and federalization processes. If stifling dissent and excluding influential ethnic minorities from the table is how the NLD plans to govern going forward, we should be worried about Myanmar’s future. There will be no federal democratic union without these building blocks of constitutional morality.

Photo Credit: Creative Commons

Author: Jesse Hartery

Jesse Hartery is completing a joint degree in common law (LL.B.) and civil law (B.C.L.) at McGill University. He works at international law firm Fasken LLP and is a Research Assistant to Professor Johanne Poirier (the Peter MacKell Chair in Federalism). He has previously been a Judicial Law Clerk at the Superior Court of Québec. He holds an Honours B.A. in History and a Minor in Asian Studies from the University of Ottawa.