The Paradox of Limitation Clauses: How Restrictions on Basic Freedoms in the Myanmar Constitution May Strengthen Human Rights Protections

16 Australian Journal of Human Rights 155 (2010)

21 Pages Posted: 2 Aug 2015 Last revised: 9 Apr 2023

Date Written: December 28, 2009

Abstract

Multi-party elections are scheduled for 2010 in Myanmar, a country where human rights violations are widespread. Following the elections, the country’s new Constitution will come into effect, including its provisions protecting fundamental freedoms. These provisions have been widely criticized due to the presence of limitation clauses that permit the government to suspend freedoms for reasons such as ‘national security’ and ‘public order’. After pointing out that such clauses are commonplace, this paper argues that the limitation clauses may counterintuitively provide greater constitutional protection than if they were not there. The limitation clauses, some of which are strikingly similar to those in international human rights instruments, arguably trigger internationally established parameters that limit the use and scope of the limitations. The inclusion of limitation clauses in the Constitution has furthermore made it impossible for the government to lawfully add or expand limitations except through constitutional amendment. The paper additionally argues that if the limitations had not been included, they would almost certainly be incorporated arbitrarily and expansively through interpretation by a Myanmar judiciary notorious for its lack of independence from the military regime. Free e-print: http://www.tandfonline.com/eprint/cjtcrYMBSzKrqNCaeDCF/full

Keywords: Myanmar, human rights, limitation clauses

Suggested Citation

Manley, Stewart, The Paradox of Limitation Clauses: How Restrictions on Basic Freedoms in the Myanmar Constitution May Strengthen Human Rights Protections (December 28, 2009). 16 Australian Journal of Human Rights 155 (2010), Available at SSRN: https://ssrn.com/abstract=2638566

Stewart Manley (Contact Author)

University of Malaya ( email )

Faculty of Law
University of Malaya
Kuala Lumpur, Kuala Lumpur 50603
Malaysia

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