On the (Reform) Road to Mandalay – and Yangon

Last October, John Claydon wrote for SLAW about the work being done by Canadian lawyers in Cambodia. I thought I would follow the thread by providing an overview of the system and legal education in Burma/Myanmar.

In 2012, the University of Oxford was encouraged by one of its famous alumni, Aung San Suu Kyi, to work with the University of Yangon to revive its undergraduate education programme. After more than 30 years, the regime was opening up to the outside world. Yangon and Mandalay Universities were allowed to resume undergraduate education, which had been banned in the wake of student protests in the 1980s. During the most repressive periods of the regime, schools and universities were just closed for long periods.

A new era was starting, and Oxford’s Faculty of Law became involved with the University’s programme. I have written elsewhere about the specific involvement of the Bodleian Law Library, which is ongoing. My purpose here is to describe aspects of modernising the legal system and the legal education offered. Education in Burma as whole has suffered since the 1960’s, with many students not able to attend schools, and others totally demotivated by the lack of employment prospects. A system of ‘Distance education’ was established alongside the use of regional colleges, in a move to ensure students did not have opportunities to congregate (and thus foment ‘trouble’).

From this evolved a centralised curriculum with Subject Boards based in Yangon, charged with planning the curriculum and writing text books used throughout the country. An example of the poor quality of the paper/printing of these books is illustrated in this article by Rosalie Metro. The form of teaching that developed was more akin to rote learning. On my recent visit I walked past a first year undergraduate class of ‘outstanding law students’ engaged in group chanting of passages from the contracts textbook. The text books for law were written in English, many years ago, and occasionally include extracts from old cases, but the teaching method is more rote than case based . Little encouragement of original jurisprudential thought or open discussion is provided in the current curriculum.

This is the nature of the education that Burmese lawyers under a certain age have been through. Many of those who lecture at the university have taken their masters or doctoral degrees in foreign countries like Japan, Singapore, South Korea, and have a broader view of legal education. But the reality is that they have very high teaching loads, and have to manage with a very small number of staff. Curriculum change in law is needed, but finding the time and the will to implement changes is a daunting prospect, despite the efforts by bodies such as the Open Societies Foundation to develop new curricula with the law departments.

As a starting point to improve the standard of tertiary education, the re-introduction of undergraduate teaching at Yangon and Mandalay Universities commenced in 2013. The students who formed the first cohort across all disciplines were selected for their top school results, and are referred to as ‘outstanding students’. The Law Department at Yangon initially expected 20 students to commence, but ended up with an intake of 60. The second cohort, of similar numbers, started in 2014. The selected students come from all over the country, and are housed in newly refurbished hostels on university grounds. To ensure equality of access for males and females, and to reassure parents in distant locations, there is a 6pm curfew for the females in the hostels. There is no curfew for the males (!). On the Facebook site for the University of Yangon Library, there is reference to the online database courses being provided to ‘outstanding students’.

The expansion of rights for citizens since 2011, elimination of censorship, a new human rights’ commission, and a freeing up of the labour laws have all created a markedly improved atmosphere in Burma. It is against this background that the Ministry of Education is now implementing changes which are encouraging a degree of autonomy for the universities to plan their own curriculum, and perhaps regain the standards and reputation they held in the past. (In the 1950’s the University of Rangoon (Yangon) was a well respected tertiary institution in SE Asia).

The National Education Law of 2014 proposes changes at all level of education. However the initial bill, the process, and the two further bills containing amendments which have been submitted to the parliament, have aroused anger among students. Last week, marches by students resulted in some violence, reported by Human Rights Watch and the Irrawaddy Newspaper.

How these reactions will influence the proposed educational reforms, which are now being reviewed, is hard to say. On March 17 students and associated NGOs were able to present their views to a parliamentary committee for inclusion in the forthcoming amended Education legislation.

Whilst the educational reforms look to the future abilities of the nation’s lawyers, the skills of those lawyers currently employed by the government departments are also being reviewed and upgraded via a Rule of Law and Access to Justice programme. In Naypyitaw, the capital of Myanmar, the UNDP is working with the Attorney General’s Dept and the Supreme Court on this Rule of Law programme. ‘Capacity building of judges, lawyers and law students is provided via technical assistance, and training to bring about changes in approach and understanding, and to strengthen institutional capacities’.

The legal system is theoretically based on the common law, inherited from the UK after independence in 1948; however this has been eroded as a result of military rule. Myanmar is the only (nominal) common law country to have a Constitutional Tribunal, rather than vesting the power of constitutional review in the Supreme Court. The National League of Democracy (NLD), led by Daw Aung San Suu Kyi, wishes to transfer the power of the Constitutional Tribunal to the Supreme Court, more in line with common law norms.

I should mention that there are a number of commercial law firms operating in Yangon. There are several global firms with offices there, such as Allen & Overy LLP and Baker & McKenzie. Other firms deal with Myanmar related matters from their Bangkok or Singapore offices. The number of firms with an interest in the expanding opportunities for business in Myanmar has increased greatly in the past 4 years.

The future for Myanmar is still uncertain. Elections are scheduled for October 2015. The military still have a strong influence, and presence. They hold a set number of seats, about one third, in the parliament. Corruption is a real problem. Crime is under reported to the police because there is often an assumption that the local judges will not deal with complaints on their merits.

But the sense of optimism is also strong, and the amount of goodwill and effort on the ground will, hopefully, see ongoing improvement. In many ways, the genie is now out of the bottle…