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Australia-Myanmar Constitutional Workshop

On 26-27 November 2014, the Australia-Myanmar Constitutional Democracy Workshop was held at Sedona Hotel in Yangon. Building on the constitutional law workshop held in 2013, this workshop had a particular focus on constitutional principles and institutions. The workshop was hosted by the University of New South Wales, and also included academics from NUS, ANU, Canada and Germany. The workshop was attended by a range of lawyers, legal professionals and NGOs in Yangon. 

I contributed to a panel on the separation of powers, and focused specifically on states of emergency. The constitutional power of the executive to declare a state of emergency continues to present a challenge to the rule of law around the world. For example, in 2014, states of emergency were declared by the governments in Liberia, Sierra Leone and Nigeria respectively, in response to the serious health risk presented by the Ebola virus. Other states of emergency are more controversial and have been declared in response to internal unrest. For example, in August 2014, the Governor of Missouri (United States) declared a state of emergency in the city of Ferguson, after the shooting of an unarmed black teenager by the police led to peaceful protests that at times resulting in vandalism. 

I emphasised that while each emergency may be unique to the local context, they raise similar questions about the limits on this power; the definition of an emergency; and the role of the military. In Myanmar, over the past two years, we have already seen at least nine separate orders issued under section 144 of the Criminal Procedure Code by the General Administration Department that have imposed restrictions on freedom of movement and association. I suggested that this should raise issues of concern because section 144 is supposed to be a judicial power, not an executive power; the General Administration Department is under the Minister of Home Affairs, who is selected by the Commander-in-Chief; and an order under section 144 seems to be a precondition to a constitutional state of emergency. I concluded by suggesting that while the constitutional powers to declare a state of emergency are still of serious concern, that the more immediate issue is the exercise of similar powers under section 144.

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