Download Free PDF View PDF
1. One of the key roles of constitutions in democratic societies governed by the rule of law is to ensure that executive power is exercised only on the basis of and within the limits of the law, and to provide rights and effective accessible recourse to individuals if their rights have been unduly infringed by administrative decisions or executive acts. In Myanmar, where state power has long been exercised without any constitutional limitation or remedies, the 2008 Constitution has reintroduced some basic elements of governance under the rule of law. These include general commitments to the rule of law, a separation of powers between branches of government and fundamental rights coupled with the procedural rights of judicial review through writ jurisdiction. In practice, complaints about unlawful or unjust administrative action (or inaction) have been reported to be widespread, but effective legal recourse mechanisms have yet to be identified and to be made widely accessible. 2. This paper argues that the approach followed by the existing institutions of Myanmar so far, including the reintroduction of writs, has not led to significant improvements and an effective implementation of constitutional rights and principles. It is suggested that a number of avenues could be pursued to improve the accessibility of administrative justice including: (i) constitutional amendments; (ii) legislative changes; (iii) the creation of new structures and bodies and (iv) reforms to the practice and procedure of the courts and of administrative bodies The introduction of a specific constitutional right to administrative justice combined with the creation of an effective, dedicated administrative recourse mechanism may hold the potential to address the problem of the current state of affairs. Examples from other developing country contexts with common law backgrounds, where such reforms have recently been introduced, are included for reference. It is recognized that any such reforms would take considerable time to agree on and implement, and require commensurate political will to gradually change the nature of the state-citizen relationship in Myanmar.
Download Free PDF View PDF
‘It will take us (judges) three years and eight months to hear and determine cases pending before the High Court even without new matters being filed. Therefore, the judiciary is encouraging adoption of Alternative Disputes Resolution mechanisms in line with the Constitution because resolution of disputes will be easier and faster through alternative disputes resolution methods like arbitration and reduce case backlog in courts’ High Court Judge, Lady Justice Jacqueline Kamau, 2015.
Download Free PDF View PDF
Kenya still enjoys a relatively new Constitution enacted in the year 2010. In effect, the Constitution is just about to clock it's 8th birthday. The Constitutional ontology of Kenya shows that the clamor for this Constitution came about after years of agitation for a new governing system that ensured increased universal suffrage, an end to arbitrariness and entrenchment of constitutionalism, access to justice and increasing the minimum threshold of enjoyment of human rights. However, Kenya still grapples with the interpretation of the Constitution. There is a new clamor to amend the Constitution which means that Kenyans may have to hold a referendum to amend it. This has been contested by various scholars, legislators and judicial officers who fault the cause of this new clamor as a result of a misinterpretation of the Constitution. The role of key institutions as provided for in the Constitution is also a burning matter. This paper, analyses the jurisdiction of Kenya's superior court in a bid to assist in addressing the misconceptions on their respective roles and jurisdiction.
Download Free PDF View PDF
