Paste your CHAPTER IV: LEGAL ANALYSIS ON APPLICATION OF INTERNATIONAL HUMANITARIAN LAW IN MYANMAR
Introduction
This chapter analyses an applicability of IHL in accordance with the Legal System of Myanmar. This chapter also argues that why a National Legislation measure is chosen for the domestic implementation of IHL in Myanmar. Moreover, this chapter tries to answer the legal questions relating to what kinds of an implementation measure is suitable and applicable with Myanmar Legal System because IHL implementation process is complex, and longtime process as well.
4.1. Legal Analysis on National Implementation of International Humanitarian Law in Myanmar Legal System
Even though Myanmar has been the party to the Geneva Conventions since 1992, Myanmar still does not have a specific domestic law relating to IHL. Myanmar has a modified common law system based on a legal framework first adopted in India in the nineteenth century. As Myanmar belongs to the Common Law Legal System family, the application of international treaties into a national jurisdiction should be in compliance with its legal system.
In order to implement IHL norms and principles accurately in Myanmar, we need to understand the nature and background of the Myanmar Legal System as well as the customary and official application of procedures of international conventions and treaties into the domestic jurisdiction. The second part of this chapter provides what types of IHL implementation should be applicable and suitable for Myanmar, and what kinds of human rights obligations should be implemented through National Legislation so that IHL can be followed and respected by the State Armed Force as well as by NSAGs. Despite IHL National Legislation governing the conduct of both the State Armed Groups and NSAGs, in reality, NSAGs hardly follow or respect the domestic law of the State, which is why, it is important to consider how the National IHL Legal Framework can also govern conduct of NSAGs. Therefore, when drafters consider drafting an IHL Bill, it should be noted that how NSAGs can participate in the IHL implementation process so that they can follow and respect IHL. Most importantly, the Parliament has to adopt the bill and enact national legislation in harmony with the rules and regulations contained in IHL. After the principle of IHL has been entered into force, both the State and non-State Armed Groups have to follow that IHL Law.
4.1.1 Legal Protection of Civilians under the Constitution
The Fundamental Human Rights of Citizens are provided in Sections 345-390 of the Constitution. Some notable provisions relating to the protection of Citizens are as follows:
• The citizen of the Republic of the Union of Myanmar is prescribed as person born of both nationalized parents and person who is already a citizen according to the law on the day of the Constitution starts binding;
• The State shall guarantee any person to enjoy equal rights before the law and the State guarantees that it shall not discriminate any citizen of the Union of Myanmar based on race, birth, religion, official position, status, culture, sex and wealth.
• Again, Section 358 of the Constitution provides that the Union prohibits the enslaving and Trafficking in Persons.
We have learnt that the present Constitution does not expressly provide about the legal protection of civilians in time of armed conflicts except the rights relating to the legal protection of citizens in peace time.
4.2 International Conventions and Treaties Implementation Process under Myanmar’s Legal System
As we know, the IHL treaties implementation process at the national level is quite complex due to the fact that IHL is comprised of various treaties and conventions. In this vein, we need to deeply consider the State’s practice in implementing international treaties and conventions as well as the nature of those treaties and conventions.
4.2.1 Cases Judgement Review on Controversy in Automatic Application of International Law into Domestic Jurisdiction
The application process of international law or treaties into the domestic jurisdiction of Myanmar is still controversial and uncertain. From a legal point of view, it is still debatable to determine whether international law is automatically applicable in domestic jurisdiction or not. Moreover, no law expressly provides that international law cannot be applied automatically. However, the international law is hardly accepted as national law in practice. Historically, before World War II no international law cases were decided by a Myanmar Court. Soon after WWII, the Myanmar Court started dealing with cases involving important questions of international law.
In the case of the King V. Maung Hmin, the legal question as to whether the convictions and sentences passed during the Japanese occupation were valid or not. The fact the Court was faced with making decision on the validity of the relationship between international law and domestic law. The High Court referred to Article 43 of the Hague Regulations and held that the Hague Regulations could be applied by Myanmar Courts, if the rule was in compliance with domestic law. Likewise, in the case of Chung Chi Cheung V. The King (1939, L. R, A.C,160), the High Court held that the Hague Regulations must be treated by the courts of Myanmar as incorporated into the municipal law of Myanmar, to such extent as they were not inconsistent with the ordinary law of the country. Therefore, the judicial attitude of the British courts in Myanmar was that international law formed part of Myanmar municipal law in so far as the former was not in conflict with the latter. In Dr. Chan Taik V. Ariff Moosajee Dooply (1948, BLR (H.C)454), the High Court decided that that the Hague Regulations had to be treated by the courts in Myanmar as part of the Municipal law. Taking the above cases’ judgements into account, Myanmar’s automatic application of international law was decided on the grounds of whether international law was consistent with domestic law or not. In this sense, it is not arguable that the role of domestic law played priority role more than international law.
Particularly, in Evgoni T. Kovtunenko V. U Law Yone (1960, BLR (S.C)51) case, the remarkable opinion of the Supreme Court can be listed as: international law cannot be deemed as part of domestic law, therefore international agreements may be determined by Parliament; international law must be generally recognized as customary law of the nation and it must not conflict with Myanmar municipal law; legislative measures as may be need to be brought into line with other states; applicable international law applicable shall be in compliance with Section 213 (1) of the Constitution; and no one can claim immunity from penal laws of the country in the present case, but he or she will have to be dealt with according to the law.
Taking the above cases and legal argumentations into account, the author is of the opinion that even though international law used to be automatically applied into national jurisdiction, the fact is that the applicability of international law is limited and debatable. It means that the whole of international law cannot be applied automatically due to the fact that if a rule of international law is not consistent with domestic legislation, it cannot be applied automatically. Moreover, due to establishment of the new Constitution, it is better to rely on the current treaties implementation process under the new Constitution. From a legal perspective, the last decision of the Supreme Court is the most binding effect in Myamar; therefore, the judgement of Evgoni T. Kovtunenko V. U Law Yone still influences the decision of the previous judgement. Therefore, we can conclude that automatic application of international law into domestic jurisdiction is unclear and limited and it should be determined under the current treaties implementation process of Myanmar.
4.2.2 The Current Treaties Implementation Process of Myanmar
Particularly, treaties shall be implemented through establishing national law; in reality, some treaties are implemented through administrative procedures. From a legal point of view, if a treaty obligation is relating to international customs or criminal responsibility, the establishment of national legislation is profoundly important. Particularly, a question as to whether national legislation is required or not shall be based on the terms and obligation of a treaty. In practice, most bilateral treaties are implemented through administrative measures, whereas other important treaties such as the Convention on the Rights of the Child, are implemented through establishing national legislation. It is not arguable that if a treaty contains customary obligations such as Human Rights and Humanitarian Law Treaties, the State should take more consideration on those treaties implementation due to the fact that the State is fundamental responsible for following and ensuring respect customary obligations of treaties. Though all treaties cannot be transformed into national legislation, Myanmar practices implementation of treaties by means of establishing national law, especially for treaties related with customary or criminal responsibilities.
Currently, the Constitution determines the application and enforcement of International Conventions and Treaties in the Myanmar legal system. Section 96 of the Constitution states that, “The Pyidaungsu Hluttaw shall have the right to enact law for the entire or any part of the Union related to matters prescribed in Schedule One of the Union Legislative List.” According to the Union Legislative List in Schedule One of the Constitution, the State Parliament shall have the right to enact law regarding:
o Participation in International, Regional, and Bilateral Conferences, Seminars, Meetings, Associations, and other Organizations and Implementation of resolutions thereof; and
o Conclusion and implementation of International and Regional Treaties, Agreements, Conventions and Bilateral Agreements and Treaties.
Similarly, relating to ratifying, annulling and revoking from international treaties, Section 108 of the Constitution of the Republic of the Union of Myanmar 2008 which provides that, the Pyidaungsu Hluttaw:
a) shall give the resolution on matters relating to ratifying, annulling and revoking from international, regional or bilateral treaties, agreements submitted by the President;
b) may confer the authority on the President to conclude, annul and revoke any kind of international, regional or bilateral treaties or agreements without the approval of the Pyidaungsu Hluttaw.
According to the Constitution, the responsibility of treaties implementation is handled by the Parliament and the Government. According to Section 108 of the Constitution, the power of concluding, annulling and revoking treaties is given to the Government side. But the final resolution shall be made by the Parliament.
The following figure shows the general procedure of how International law becomes applicable at the domestic level in Myanmar. According to the Constitution, it is not arguable that the responsibility of treaties implementation is handled by the Parliament and the Government. In this process, the implementation procedure differs from treaty to treaty based on the nature of the treaties. According to Section 108 of the Constitution, the power of concluding, annulling and revoking treaties is given to the Government side. But the final resolution shall be made by the Parliament. The following figure shows that how International law becomes applicable at the domestic level.
Figure: The General Model of Treaties Implementation Process in Myanmar.
The figure underlines the current treaties implementation process of Myanmar through a national legislation process. As already discussed, Myanmar expressly needs national legislation for implementation of treaties or conventions, especially those treaties or conventions including criminal responsibilities. In the legislative procedure, if the Cabinet of the Union considers that a treaty should be transformed into national legislation, the relative ministries or organizations have to make a proposal to the Union Parliament and this proposal has to be discussed in the Union Parliament in accordance with Pyidaundsu Hluttaw Rules 119
Figure: The Model of International Treaties Implementation through Legislative Procedure in Myanmar
MP – Members of Parliament
UAGO – The Union Attorney General’s Office
Union Assembly – The Union Parliament
If the majority of members of Parliament agree that national legislation is required, relative ministries or organizations shall draft a bill and submit it to the Union Parliament. After a bill is submitted to the Parliament, a bill committee of the Parliament discusses together with its member of representatives, legal experts and representatives from relative ministries or organizations. Then, the bill is submitted to the Union Parliament Section for discussion. After being discussed in the Union Parliament, the bill is sent to the President for signing and promulgation as a law and entered into force as national legislation.
Summary and Conclusion
The above-mentioned treaties implementation process requires Myanmar, to transform international conventions and treaties into national legislation, especially if those treaties include criminal responsibilities or specific customary obligations. In order to implement IHL norms and principles in Myanmar successfully, IHL should be introduced in accordance with the legal system of Myanmar. As IHL is a body of international conventions and treaties and possessing the status of customary international law, its implementation process is complex. So, the legal drafters need to understand IHL applicability not for mere short time periods, but for long time periods for the purpose of granting civilians’ protection in the future too.
In conclusion, in order to assess IHL norms and principles systematically in harmony with the situation of Myanmar, it is important to understand the nature and background of the Myanmar Legal System, especially, customary implementation of international treaties, conventions and so on. The State possesses a fundamental obligation to implement IHL in line with the rules and principles of IHL for the purpose of taking a number of legal and practical measures for peacetime and during conflicts. Myanmar expressly needs national legislation for implementation of treaties, especially those treaties including criminal responsibilities. It does not mean that all treaties must be transformed into national legislation, but some special treaties and conventions, especially, those including criminal responsibilities are implemented through national legislation. Therefore, IHL has to become part of domestic law ensuring that both the State and NSAGs do respect IHL in all circumstances. However, whether IHL should be directly applied to domestic law or IHL should be applied through national legislation, depends on the domestic legal system of each State. Ultimately, the author would like to argue that the international humanitarian treaties implementation process should be in compliance with the legal system and the treaties implementation process of Myanmar.
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