Bingham Centre Myanmar Project Bingham Centre for the Rule of Law October - November 2014 www.binghamcentre.biicl.org Table of Contents Agenda…………………………………………………………………………3 Bingham Centre Constitutional Awareness Manual………………………..4 Constitutional Reform in Myanmar: Priorities and Prospects for Amendment – Naina Patel and Alex Goodman…………………………………………..32 Executive Power in Myanmar – Professor Sir Jeffrey Jowell KCMG QC…59 Constitutional Transitions and the Role of the Military – Andrew McLeod………………………………………………………………………..76 Exercising Executive Power in Myanmar: Constitutional Options for Safeguarding the Rule of Law in Public Administration – Marcus Brand…84 Federalism in Asia – Rohan Edrisinha…………………………………….104 Access to Laws: Publication of the Law (Slides) – Gaythri Raman………117 Biographies of speakers……………………………………………………119 AGENDA Friday 31st October 1630 Registration 1645 Opening Remarks Sir Jeffrey Jowell KCMG QC 1700 Constitutional Amendment: section 436 and options for the amendment process - This session will include two short talks on the amendment provisions in Myanmar’s 18.45 Constitution as well as discussion and questions. Other countries considered will include France, South Africa, Indonesia and the UK Naina Patel and Alex Goodman 1915 Executive Power: selecting the President and Executive powers - This session will include a short talk followed by discussion and questions. 2030 Other countries considered will include Argentina, Brazil, Turkey, Indonesia and the UK. Sir Jeffrey Jowell KCMG QC Saturday 1st November 1000- Constitutional transition: the military’s role in Myanmar’s transition to democracy. 1145 This session will include a short talk followed by discussion and questions. Other countries considered will include Spain, Egypt and Indonesia. Dr Andrew McLeod 11.45 LUNCH 12.30- The Priorities of the Myanmar People 12.45 This session will include a short talk on the Bingham Centre’s Constitutional Bus Tour. U Aung Soe 1245- Mechanisms of Accountability: the Courts, Judiciary and administrative justice 1430 This session will include discussion and questions. Issues considered will include the powers of the Supreme Court to issue writs; Courts Martial; the Constitutional Tribunal and judicial appointments. Dr Marcus Brand 1430 BREAK 1445- The Structure of the State: Myanmar’s options for a federalism/decentralisation 1615 This session will include a short talk followed by discussion and questions. Other countries considered will include India, Sri Lanka and Nepal. Rohan Edrisinha 1615- Publication of the Law 1645 This session will include a short talk on the importance of transparency and the publication of laws. Raman Gaythri of Lexis Nexis 1645- Closing Remarks 1700 Sir Jeffrey Jowell KCMG QC Constitutional Awareness Myanmar September 2014 Brought to you by 4 CONSTITUTIONAL AWARENESS This document is a guide to the Constitution and constitutional reform. It consists of: A. What is a Constitution? (p.1-6) B. Key Provisions of the Current Burmese Constitution (p.7-14) C. Possible Areas for Reform (p.14- 25) The document is not written for the specialist in constitutional law. Nor is it intended to be fully comprehensive. It selects those issues which appear to be most relevant to Burma/Myanmar at the present time. 5 CONSTITUTIONAL AWARENESS A. WHAT IS A CONSTITUTION? A Constitution is a collection of rules and principles which set out how a state will be governed. It forms the framework for all decisions made by every government official and, particularly the legislature (the law making body), executive (President/Prime Minister/ministers) and the courts. It also sets out the rights of everyone which must be respected by the state and therefore establishes the relationship between the government and the people. Why is a constitution important? A constitution is important because it ensures that those who make decisions on behalf of the public fairly represent public opinion. It also sets out the ways in which those who exercise power may be held accountable to the people they serve. And it sets out where government powers end by guaranteeing individuals’ specific rights and freedoms. These rights help to assure the protection and promotion of human dignity, equality and liberty. Constitutions may provide for the division of powers between the central government and the regions. Constitutions should be agreed rather than imposed so as to provide an acceptable framework for the settling of different political views. They help provide for a stable society by ensuring that, although everybody may not agree with the government all the time, the people accept the legitimacy of the system of choosing governments. 6 To download this document in PDF version, visit www.lexisnexis.com.my What does a constitution contain? A constitution will often contain a number, if not all, of the following features: A Preamble: This sets the constitution in context, outlining the state’s fundamental values and objectives. The Identity of the State: The constitution may set out the official language or languages, the country’s flag, who is eligible to be a citizen and the position of the state in the world. A Bill of Rights: The constitution will set out the rights of individuals and the circumstances in which these may be limited or suspended. Commitment to the rule of law: Many constitutions endorse the rule of law, whereby laws must be clear and accessible, equally enforced, and where people have the opportunity to assert their rights in courts where they must receive a fair trial before independent and impartial judges. The Role and Composition of the Legislature (Law Making Body): The constitution will set out who will make up the legislature and how its members will be chosen. There may be one or two bodies and the constitution will say what their respective roles are. The Role and Composition of the Executive (President/ Prime Minister/ Ministers): The constitution will determine who will be part of the executive and how they will be chosen. It sets out the powers of the executive including those of the head of the executive (president / prime minister). In some constitutions the head of state has a great deal of powers, and in others the head of state is more in the nature of the representative of the people, and the main executive power is wielded by a prime minister. The constitution also sets out how the executive is accountable for the exercise of power to the legislature, the courts and the people. The Structure and Appointment of the Judiciary: The constitution sets out conditions for choosing judges and their independence from the other branches of government (the legislature and the executive) as well as the kinds and levels of courts. The role and method of appointment of the government legal advisor (Attorney General) and public prosecutors will also normally also be provided for in the constitution. Provisions for Elections: The constitution sets out requirements for elections. These may include which voting system is to be used, regulations for political parties, who may stand for election and regulations regarding how elections are to be carried out fairly and honestly. To download this document in PDF version, visit www.lexisnexis.com.my7 Other Important Bodies: The constitution may provide for additional bodies such as a central bank, and bodies to support democracy, for example an Electoral Commission, Anti-Corruption Commission, Financial Oversight Commission or a Human Rights Commission. The Structure of the State: The constitution will determine how power is to be allocated between the national, regional and local levels. The Economy and Distribution of Resources: Some constitutions set out which economic system a state is to follow (for example, market economy or socialism). Most however leave that question to the choice of the people. It may also determine how natural resources and other wealth are to be allocated between levels of government or regions. The Role and Control of the Armed Forces/Police: The constitution may set out the duties of the military and police as well as provisions for their supervision, control and accountability. Emergency powers: The constitution should address who can declare an emergency and in what circumstances, and who is granted what powers during an emergency. Amendment Provisions: The constitution will set out how it can be changed, normally by a majority of more than 50 per cent of the members of the legislature and sometimes also by a referendum of the people. What distinguishes a Constitution from Laws Made by the Legislature? Because they form the framework for all decisions and actions of officials, the rules and principles outlined in constitutions are normally regarded as superior to laws passed by the legislature. This means that representatives in the legislature should only pass a law if it is compatible with the constitution. The courts normally have the role of deciding whether a law conflicts with the constitution. Since constitutional rules have this higher status there are often tougher requirements for changing them than for ordinary law. However, it is important that a constitution can be amended so it can undergo improvement and respond to changing circumstances. Constitutions also usually allow for the suspension of some or all of its provisions, but only in time of emergency, such as when it is seriously necessary to safeguard national security or vital public interests. 8 To download this document in PDF version, visit www.lexisnexis.com.my How can a constitution protect individuals’ rights? A constitution can protect individuals by outlining their rights, normally in a ‘bill of rights’ at or near the beginning of the constitution. The rights which the constitution contains are normally owed to everyone in a country with the exception of rights which may be reserved for citizens only, such as the right to vote. Civil and political rights include rights such as to life, to personal liberty, protection form torture, protection from slavery, freedom of expression, the right to equal treatment and the right to demonstrate peacefully.