神戸大学附属図書館デジタルアーカイブ
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https://doi.org/10.24546/81010095
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2024-04-30
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81010095 (fulltext)
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81010095
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open access
出版タイプ
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タイトル
ミャンマー2008年憲法における統治機構の特色と展開
ミャンマー 2008ネン ケンポウ ニオケル トウチ キコウ ノ トクショク ト テンカイ
その他のタイトル
Governance Structure of the Myanmar 2008 Constitution: Unique Features and Challenges
著者
著者ID
A1671
研究者ID
1000010291981
KUID
https://kuid-rm-web.ofc.kobe-u.ac.jp/search/detail?systemId=f2f28f96165ce602520e17560c007669
著者名
金子, 由芳
Kaneko, Yuka
カネコ, ユカ
所属機関名
国際協力研究科
収録物名
国際協力論集
巻(号)
25(2)
ページ
1-32
出版者
神戸大学大学院国際協力研究科
刊行日
2018-01-31
公開日
2018-02-27
抄録
This article considers the characteristics of the governance structure under Myanmar’s 2008 Constitution by returning to an accurate reading of the Constitution’s provisions, while also introducing a historical comparative viewpoint that focuses on the changes to the 1947 Constitution and the 1949 Constitution of India that served as its reference. First, as for the relationship between the Union Hlluthaw and the President, against the dominant opinion in general writing that further expansion of the President's authority is required based on an oft-made comparison to the United States presidential system, this article rejects that common view and finds that the 2008 Constitution adopts a centralized democracy that presupposes “supremacy of legislature.” Yet unlike the parliamentary cabinet system that was adopted by the 1947 Constitution, it adopts a unique system in which the President holds executive power under the direct confidence of the Union Hlluthaw. Although this intermediate structure that is between a parliamentary cabinet system and a presidential system is unique, it is certainly a product of a study of Myanmar’s unique history. Keeping in mind that the Parliamentary cabinet system under the 1947 Constitution was swayed by power politics and prolonged the confusion of internal trouble and the state of civil war, the current 2008 Constitution can be called a new ship that has departed to probe for a cooperative approach between the legislative branch and the executive branch. The separation of powers does not signify that power politics is futile. The constitutional organizations nurturing cooperative constitutional practices is being counted upon to prevent the national government falling into the quagmire of political battles, where the President brandishes the power to veto bills and take suit in the Constitutional Tribunal, and the Union Hlluthaw counterattacks with the impeachment process. Secondly, regarding the independence of the judiciary, it is necessary to consider both the Constitutional Tribunal that is responsible for constitutional judgments and the ordinary courts that are responsible for the prerogative writs that correspond to administrative litigation. The Constitutional Court should not be misled into existing as a loophole in the power struggle between the other branches of government, as seen in the drama of the mass resignation of the Constitutional Tribunal members in 2012. It is hoped that the Constitutional Tribunal develops with a spirit of interpreting the essence of the constitution and creating a transparent and logical system of judicial precedents. On the other hand, the ordinary courts’ power to issue prerogative writs is a type of litigation not necessarily attracting attention around the world, but it is the symbol of the “independence of the judiciary” which has accumulated precedents since independence from the British colonial judicial system. As such, the role of the judiciary in future democratization is to be watched as a focus of observation. However, the prerogative writ precedents from the 1940s - 1960s era are conservative in only questioning large deviations in discretionary power, so because being mechanically bound in the application of existing case law will only end with being a supporter and not a supervisor of administrative authority, so a logical formulation of sophisticated administrative legal theory is awaited to become the basis of a bold administrative supervisory function. Also, procedural processes are too dependent on the discretionary powers of the Supreme Court, so a clear procedural law is awaited. Thirdly, concerning decentralization under the 2008 Constitution, the binary distribution of legislative, administrative and judicial jurisdiction between the Union and the Region/State level that forms the essence of the “Union” system, and the existence of a vertical bureaucratic system centered on the General Administration Department (GAD) that substantially holds together the discord and omissions that naturally accompany such a binary system is a unique characteristic. The survival of this centrally-controlled bureaucratic system was not planned in the 1947 Constitution, and has been prolonged by the experience of a long civil that has continued to expose the constant risk to national unity as post-independence Myanmar has faced secessionist movements by many ethnic minority groups. Today, the voice of further decentralization and democratization is deeply rooted, and fundamental reforms are being debated, such as grassroots democracy based in the wards and village tracts, the direct election of leaders, the introduction of local councils, and the introduction of a local civil service system. However, if there is one misstep in the design and implementation of a local autonomy system, it will be a fuse that can ignite the secessionist movements of ethnic minorities, as is currently seen in 2017 with the Rohingya problem, where the Rakhine tribe has turned riotous. Until a fundamental solution to the ethnic minority problem is found, Myanmar’s local autonomy will be shelved by pessimistic opinions. Yet we should not be pessimistic. Instead of wasting time waiting for peace with the ethnic minorities, efforts to strengthen the foundation of grassroots democracy while making full use of the current provisional systemic foundation contained in laws such as the 2012 Ward or Village Tract Administration Law will bear fruit one day.
カテゴリ
国際協力研究科
国際協力論集
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25巻
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25巻2号(2018-01-31)
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資源タイプ
departmental bulletin paper
言語
Japanese (日本語)
ISSN
0919-8636
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NCID
AN10418744
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URI
http://www.research.kobe-u.ac.jp/gsics-publication/jics/
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