How an Authoritarian Regime in Burma Used Special Courts to Defeat Judicial Independence

Cheesman, Nicholas

doi:10.1111/j.1540-5893.2011.00457.x

Cited by 49 publications

(15 citation statements)

References 29 publications

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“…The law of Burma, she concluded, was 'radically indeterminate' (Huxley 2004(Huxley , 2008. There was, however, some credible evidence presented in this case to the effect that there was, even after the early 1960s, a functioning legal system; and even that this system belongs genuinely to the common law family (Southalan 2006, Cheesman 2011. From the perspective of 2017, Justice Chaney's view was either overstated or is no longer quite true, given the recent changes.…”

Section: Law and Development In Myanmar In The Post-momentmentioning

confidence: 76%

“…When General Ne Win, by a decree of 30 March 1962, announced the abolition of the Supreme and High Courts of Burma and the termination of the tenures of both Supreme and High Court justices, there was very little coverage in the international media or the academic and professional community outside Burma. Similarly, when on 13 November 1988 five out of six Supreme Court judges were 'permitted to retire' by the SPDC, there was a palpable lack of interest on the part of the international community (Cheesman 2011).…”

Section: Law and Development In Myanmar In The Post-momentmentioning

confidence: 99%

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Theories of Law and Development

Harding

2018

Asian J. Soc. Sci.

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This article takes a long look at the law and development movement and its attempts to entrench the rule of law in developing countries in Asia via the means of legal technical assistance (LTA) designed to reform judiciaries and judicial bodies. It does so with special reference to Myanmar, being the latest instance of LTA in Asia. Currently there are more than 30 organisations working directly on rule of law LTA in Myanmar. Such efforts ought to represent the state of the art after half a century of LTA. The article looks at the trajectory of law and development since the 1960s, noting that the phases of law and development have led us through inaugural, critical, revivalist “moments” to a “post-moment” that appears to be pluralistic, and contextually nuanced. It notes that judicial reform has always featured in LTA through all of these “moments”, and discusses whether or in what circumstances judicial reform is the most desirable or justifiably prioritised approach to rule of law LTA. It concludes that in the current phase of law and development too much emphasis is placed on judicial reform, explaining why this is so and why other approaches could be more profitable. The argument leads to a conclusion that we might now usefully identify a “Burmese” moment in law and development—one in which we realise that one size will never fit all cases, that law and development is multi-faceted and needs to be broken down into distinct modes of operation. In this dispensation, the opportunity is offered to secure real and ongoing gains in rule of law technology.

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Section: Law and Development In Myanmar In The Post-momentmentioning

confidence: 76%

Section: Law and Development In Myanmar In The Post-momentmentioning

confidence: 99%

Theories of Law and Development

Harding

2018

Asian J. Soc. Sci.

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“…Although a new Constitutional Tribunal was established in 2011, the Tribunal cannot receive individual complaints from citizens and it has heard just fourteen cases in 8 years (Crouch ; Zan ). The small but growing academic scholarship on the role of the courts in Myanmar past and present (Cheesman ; ; ; Crouch ; ; Zan ; ) emphasizes the nature and challenges of criminal legality. Here I am concerned with the prospects for constitutional review and the Constitutional Tribunal as a result of the political transition.…”

Section: Pre‐emptive Constitution‐making In Myanmarmentioning

confidence: 99%

Pre-emptive Constitution-Making: Authoritarian Constitutionalism and the Military in Myanmar

Crouch¹

2020

Law Soc Rev

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Constitutions are an important feature of many authoritarian regimes. But what role do they in fact perform in processes of authoritarian regime stabilization and legitimation? Much of the contemporary literature focuses on authoritarian constitutionalism in transitions away from constitutional democracy. This article considers the opposite scenario: pre‐emptive constitution‐making as a mechanism of authoritarian constitutionalism to contain a potential transition toward constitutional democracy. This is illustrated through the case of Myanmar. Since the 1960s, Myanmar has experienced successive periods of direct military rule without a constitution, followed since 2011 by a new constitution. Adding to the comparative literature on constitutions in authoritarian regimes, this article explains how pre‐emptive constitution‐making limits a transition to liberal democracy and contributes to authoritarian‐regime resilience. This article further identifies “military‐state” constitutionalism as a variation of authoritarian constitutionalism in Myanmar. The case of Myanmar offers comparative insights into the ways constitutions are used to contain transitions to constitutional democracy and illustrates the varieties inherent in authoritarian constitutionalism.

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“…2 But socioeconomic 2 Classic studies of judicial review in the United States (Bickel 1962;Casper 1976;Dahl 1957;Rosenberg 2008) have spurred comparative research on courts in East Asia (Ginsburg 2003), Europe (Cichowski 2007), sub-Saharan Africa (Ellet 2013), and Latin America (Helmke and Rios-Figueroa 2011; see also Woods and Hilbink 2009). Recent work has similarly called attention to the functions of courts in authoritarian states (Cheesman 2011;Ghias 2010;Ginsburg and Moustafa 2008;Massoud 2013;Moustafa 2007;Stern 2013). constraints matter: individuals and social-change groups with limited time and money are often unlikely to mount or prevail in lengthy and costly legal battles (Bumiller 1987;Felstiner, Abel, and Sarat 1980;Galanter 1974).…”

Section: Locating Law In Humanitarian Organizationsmentioning

confidence: 99%

Work Rules: How International NGOs Build Law in War-Torn Societies

Massoud¹

2015

Law Soc Rev

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Drawing on socio‐legal literature and fieldwork in South Sudan, this article argues that international aid groups operating in conflict settings create and impose a rules‐based order on the local people they hire and on the domestic organizations they fund. Civil society actors in these places experience law's soft power through their daily, tangible, and mundane contact with aid agencies. As employees they are subject to contracts and other rules of employment, work under management and finance teams, document routine activity, and abide by organizational constitutions. In analyzing how South Sudanese activists confront, understand, conform to, or resist these externally imposed legal techniques and workplace practices, this article decenters state institutions as sites for understanding law's power and exposes how aid organizations themselves become arenas of significant legal and political struggle in war‐torn societies.

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How an Authoritarian Regime in Burma Used Special Courts to Defeat Judicial Independence

Cited by 49 publications

References 29 publications

Theories of Law and Development

Theories of Law and Development

Pre-emptive Constitution-Making: Authoritarian Constitutionalism and the Military in Myanmar

Work Rules: How International NGOs Build Law in War-Torn Societies

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