Access to Justice and Administrative Law in Myanmar Melissa Crouch A report commissioned by Tetra Tech DPK for the ‘Promoting the Rule of Law Project in Myanmar’ of USAID. September 2014 Author Dr Melissa Crouch is a Research Fellow at the Centre for Asian Legal Studies, the Law Faculty, the National University of Singapore. She has previously been a Research Fellow at the International Institute of Asian Studies (Leiden), and the Centre for Islamic Law and Society and the Asian Law Centre at the Melbourne Law School, the University of Melbourne. Melissa’s research focuses primarily on comparative public law in Asia, and she has taught Administrative Law, Comparative Administrative Law, and subjects on the legal systems of Asia. She is the co-editor of Law, Society and Transition in Myanmar (with Professor Tim Lindsey, forthcoming 2014, Hart Publishing) and the author of Law and Religion in Indonesia: Conflict and the Courts in West Java (Routledge, 2013). In December 2015, she will commence as a Lecturer at the Law Faculty, the University of New South Wales, Sydney, Australia. 1 Terms of reference The Comparative Law Expert will carry out duties designed to meet the objectives of the Promoting Rule of Law (PRL) Project. Pursuant to Tt DPK’s contract with USAID and reporting directly to the Chief of Party (COP) or her/his designee, the Comparative Law Expert will carry out the following duties: Undertake a review of examples of in the geographic region of development and reforms in administrative law, particularly mechanisms of review outside of the courts such as freedom of information and ombudsperson. Analyze the role of the courts in the common law context, extending beyond the region to include more recent developments in administrative law in other common law countries such as the United States, Australia, and England. Analyze aspects of key relevance to the current situation in Myanmar. Make recommendations as a starting point for practical implementation of programs in this area, including potential cooperation with the Attorney General's office, law departments at universities, the courts, the legal profession, and a range of government ministries such as the Ministry for Information. Other duties, as directed by the COP. The Comparative Law Expert will have the following deliverables: Written Report on State of Administrative Mechanisms in Myanmar and the Region Written Recommendations for Implementation of Initial Administrative Law Activities in Myanmar Draft and, if directed by the COP, deliver introductory seminar for law faculty and CSOs on comparative administrative law Debrief with USAID COR on Report, Recommendations, and observations made during consultancy Maximum Level of Effort (LOE): 25 days Notes on Terminology In this report I refer to the country as ‘Myanmar’ for the post-1988 period and ‘Burma’ for the pre-1988 period. This report follows the Romanisation system for Burmese script based on the BGN/PCGN 1970 agreement (available at http://earth- info.nga.mil/gns/html/Romanization/Romanization_Burmese.pdf) 2 Table of contents 1. Introduction ...................................................................................................................... 5 2. Assessment of Judicial Review of Administrative Action ............................................ 6 2.1 Judicial Review of Administrative Action in Myanmar ........................................ 6 2.1.1 The Writs in Myanmar: 1947-1970s ....................................................................... 6 2.1.2 The Historical Role of the Supreme Court .............................................................. 7 2.1.3 The 2008 Constitution on the Writs ........................................................................ 8 2.1.4 Limits on the Application of the Writs .................................................................... 9 2.1.5 Legislative Attempts to Limit the Jurisdiction of the Court .................................... 9 2.1.6 Court Reporting in Myanmar ................................................................................ 10 2.1.7 Writ Applications in Myanmar since 2011 ............................................................ 11 2.1.8 The Supreme Court and the Writ Procedure Law 2014 ........................................ 13 2.1.9 Amendments to the Civil Procedure Code ............................................................ 15 2.2 Judicial Review of Administrative Law in Comparative Perspective ................ 16 3. Assessment of Non-Judicial Review Mechanisms .................................................... 18 3.1 Access to Information ............................................................................................. 18 3.2 Right to Reasons ...................................................................................................... 20 3.3 Ombudsperson ......................................................................................................... 20 3.4 Existing Commissions in Myanmar ....................................................................... 21 4. Legal Education and Legal Practice ......................................................................... 22 5. Recommendations .......................................................................................................... 23 5.1 Workshop on Comparative Administrative Law..................................................... 24 5.2 Capacity Building for the Attorney General’s Office .............................................. 24 5.3 Capacity Building for the Courts .............................................................................. 24 5.4 Support for Parliamentary Committee ..................................................................... 24 5.5 Handbook on the Constitutional Writs ..................................................................... 25 5.6 Provision of Books on Administrative Law .............................................................. 25 5.7 Myanmar-English Legal Dictionary ......................................................................... 25 5.8 Capacity Building in Legal Education ...................................................................... 26 5.9 Capacity Building for the Legal Profession .............................................................. 26 3 6. References ....................................................................................................................... 26 7. Appendix ......................................................................................................................... 29 7.1 List of Universities with Law Departments in Myanmar ........................................ 29 7.2 List of Members of the Myanmar Law Reporting Board ....................................... 30 7.3 List of English-Myanmar Legal Dictionaries ........................................................... 30 7.4 Comparative Administrative Law course ................................................................. 31 7.5 Select List of Books on Administrative Law............................................................. 33 7.6 Photos of Field Trip .................................................................................................... 35 4 1. Introduction Prior to 2011, Myanmar was ruled by a military regime without a constitution and without any avenue for citizens to seek judicial review of administrative decisions. Since the introduction of the 2008 Constitution and the transition to a quasi-civilian government in 2011, there have been significant changes in the area of public law. The 2008 Constitution now recognises the right to the constitutional writs, and this provides one check on the power of the executive and an avenue for citizens to challenge government decisions in court. In addition, the broader opening up of the country has led to greater freedoms of expression and participation for citizens. This has seen a greater willingness for citizens to raise their concerns and complaints about government decisions. Yet there are few legal mechanisms that provide opportunities for complaints against the decisions of government agencies. The use of the constitutional writs remains in its formative stages. There are also more substantive issues for administrative agencies such as the need for regulations in terms of how decisions are made, procedural fairness, rights to reasons, greater transparency in government decision- making, and opportunities for individuals to seek review of decisions. As Myanmar continues to go through a period of transition and legal reform, the role of government and the provision of government services is likely to significantly increase in terms of the extent to which government departments regulate the lives of citizens. It is therefore important that a firm foundation is laid for checks and balances on executive power, and clear procedures in place to regulate the administration in a way that promotes transparency and accountability in governance. There is also opportunity now to consolidate and strengthen understanding of the constitutional writs, how such rights to review can be exercised, and the role of the courts in reviewing executive decisions. This report therefore advocates for a focus on administrative law as a key part of access to justice and rule of law programs in Myanmar. The report is divided into three parts. Part II considers judicial review of administrative agencies. It identifies and explains the process of judicial