Burma Desk, Asian Human Rights Commission, Hong Kong
September 2008 is a month of many anniversaries for Burma. It is, as this special edition of article 2 (vol. 7, no. 3, September 2008), is commemorating, a year since the Saffron Revolution on the streets of cities and towns all around the country, so named because of the leading role that Buddhist monks had in its shape and direction. The uprising was the largest of its size in two decades, and one that pundits, analysts and so-called experts around the world said couldn’t or wouldn’t happen. That it did speaks to the intense anger that people throughout the country feel with the ineptitude and greed of the army officers who insist on remaining in control. It is also 20 years since the current regime took over power after months of unrest and strikes throughout that historic year of 1988. But there is another anniversary, perhaps the most important of them all, that has passed almost without comment. That anniversary is the agreed handover of state power to the “caretaker” government of General Ne Win in September 1958, a coup by stealth that opened the door to the tragedy of military dictatorship from which the country continues to suffer to this day.
In 1958 Burma was faced with intense and serious problems, including continued rampant crime and widespread insurgency, political turmoil and economic difficulties. In fact, these had been persistent problems for the first decade of its independence and it is arguable as to whether or not conditions were any worse in that year than they had been earlier. On some fronts things were definitely better for the administration than they had been in previous years. That the administration had managed to establish itself and survive the first few chaotic years, when at times it had been described as the “Rangoon government” because its authority had not extended beyond the city limits, was itself an accomplishment. The courts had under the circumstances held up relatively well. Although there were many of complaints of corruption and ineptitude in the lower levels these were matters that could have been addressed over time, particularly as the upper courts had throughout shown a relatively high degree of integrity and leadership, often standing at loggerheads with government interests. Although under heavy scrutiny and constant challenge, particularly from political forces, the system as a whole had remained intact and workable.
But in the 10th year since independence some other things happened that led the army into power. One was the army itself. It had gone from being a poorly-organised and badly-equipped liberation force, and one blamed for many excesses, into an integral part of the apparatus of state, one which had cut its teeth fighting civil wars on multiple fronts and that did not feel the need to take orders from anyone else. Another was the ten- year clause in the constitution that would allow the Shan States to break away from the union and form an independent territory. It was the threat of this event that was one of the pretexts for the push to take power. Then there was the maturation of a conflict within the ruling party, the Anti-Fascist People’s Freedom League, which led to fissures within the armed forces as well, alongside a range of other political intrigues.
The upshot was that on 23 September 1958 army officers visited the prime minister, U Nu, and warned him that they may not be able to control the army and prevent a takeover by force for much longer. With other officers they planned for a negotiated transfer of power to the army commander, General Ne Win. On September 26, Nu agreed to hand over the prime ministership General Ne Win: ‘Constitutional’ coup-maker after a month. It is this anniversary that is perhaps the most tragic and overlooked of all those in Burma’s modern history, and to which subsequent events also owe a great deal. There could not have been a 2007 or 1988 but for 1958.
The consequences of a ‘constitutional coup’
The 1958 stealth coup gave Ne Win the perfect opportunity both to accustom himself and the army to the leadership role as well as act the hero of the nation and claim to be working on behalf of the public and in accordance with the constitution. He played the role of servant to the parliament rather than master, and paid lip service to fundamental rights. The courts continued operating apparently as before and were lulled into a false sense of security about the work of the administration and its supposed sense of fair play. Meanwhile, the first soft blows were being landed, with a political vigilante group set up to check and monitor politicians, their associates, and anyone whom the military deemed a potential threat. The group trained in how to conduct arrests, act as informants and forge close links with police and if possible, judges.
The public and other parts of government acculturated to ac- ceptance of government under a military officer, the full take- over in 1962 was more of a walkover. After arresting the top na- tional figures, the self-styled Revolutionary Council moved quickly to shift all parts of government, including the judicial system, unequivocally to serve its purposes. There was no attempt at keeping legal cover for the takeover, such as in the Philippines where the Marcos regime left the apex court in place. The coun- cil set about abolishing the upper courts, along with the parlia- ment and presidency, and in their place established a single Chief Court under its control, to which a journalist and barrister of small repute who had served as deputy attorney general of the 1958 coup group, Dr Maung Maung (not to be confused with a brigadier of the same name) was appointed as a judge. He did his job well enough for his commander-in-chief that he was promoted to chief justice in 1965, and later became judicial minister for the purpose of destroying what remained of the system of courts that had existed prior to the army takeover. He ended up as a member of the executive council that ran everything in the years of the one-party parliament set up from 1974 and in 1988 was the president for a month at the height of the turmoil that ended in massacres and renewed army control.
Although the subordinating of the courts to executive control came through the 1962 takeover, it depended upon a project to bring the courts system down from within. The judiciary is at any time the weakest of the arms of state, and in Alexander Hamilton’s words, “has no influence over either the sword or purse; no direction either of the strength or the wealth of the society… in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches”, but its accumulated principles and habits do not by default disappear with the emergence of a military dictatorship. They must be eradicated. An overwhelmingly powerful army may dominate the state, but it cannot take over completely without strategies to control other parts, and not least of all, the courts. This cannot be done overnight. The sacking and replacement of superior courts may cause great damage to the system, but to bring the whole thing down requires a programme. Such a programme, implemented from 1962 onwards by the partnership of a general, Ne Win, and a holder of two doctorates, Maung Maung, brought Burma’s courts under control of the executive, and turned a sane legal system into the demented one that it is today. Whereas the intellectual classes in Asia like to represent themselves as progressive forces, Maung Maung is a classic example of what they more often represent: an intellect with no real ideas of his own who in the service of a dictator drove a flawed but working justice sys- tem into the ground.
The special criminal courts
After the top courts were replaced in 1962 the ordinary courts were left alone and again given the false sense that things would to some extent go along as before. With the judiciary still operating according to its own rules and the habits of its personnel, the new ruling group couldn’t fully rely upon it to heed its bidding. So, it established a new category of “special criminal courts”, in fact administrative tribunals consisting of three members under executive control.
Although there is virtually no mention of the special criminal courts in conventional histories on Burma, they were vital to the programme for destruction of the legal system. Under the edict to establish them (Law No. 15/1962), they were placed outside of the ambit of the ordinary courts and were authorised to try crimes of insurgency, crimes of obstructing state policy and programme, crimes against the society and other “important” crimes. There were only three penalties: death, full life imprisonment, or a minimum of three years with hard labour.
The courts were from the start given significant authority to do the work of the legal system from outside of it, but this authority was quickly widened and blurred. In the first stage of these courts’ operations, there was a schedule of offences that they could hear (which covered treason, a host of offences under the Penal Code, Arms Act, Emergency Regulations, Opium Act, Unlawful Associations Act, Public Utilities Protection Act and Public Property Protection Act), but in an amendment the next year (Law No. 34/1963) the schedule was erased, leaving it up to the executive to pick and choose any case to go to the tribunals as it pleased. More importantly, in the original law in cases where the death sentence or a seven year or above jail term had been imposed the defendant could appeal to the Chief Court, but two years later the law was amended (Law No. 11/1964) so that a new appeal bench was set up over the tribunals, with no final appeal to the ordinary courts, whose members consisted explicitly of army officers. Thus, the special criminal courts were now a completely sealed off parallel system in which the accused was at the mercy of the same authorities responsible for bringing him or her there.
A range of other powers were also peeled off the courts and handed over to administrative bodies. Powers of judicial review under the 1947 Constitution were effectively lost from the time of the military takeover for want of a parliament and the other organs of state that could make them workable, but over the next two to three years much more of the courts’ authority was stripped away. Committees throughout the country were authorised under various laws and decrees to set up and staff dubiously-named area people’s courts with the purpose of trying offences against the socialist economic order, and labour and trade disputes. As land and industries were nationalised, these became increasingly powerful bodies which again had peak councils for final appeals, with recourse to the courts explicitly written out of their provisions. For instance, under the Trade Disputes Act Amending Law (No. 20/1963), it was declared that “No award or order passed by the Central Labour Committee shall be called into question in any civil or criminal Court or by writ of certiorari in the Chief Court”.
The apex court is surrendered
Simultaneously, the army-appointed Chief Court issued a series of verdicts that narrowed and weakened the capacity of the ordinary courts to operate, and confined their ability to make judgments to the terms explicitly established in Revolutionary Council edicts, and then also in terms of the orders of the special criminal courts’ appeal bench.
In the U Thein Zan case the Chief Court stated that although it had taken on the powers and duties of the former Supreme Court and High Court it did not in fact have the same powers and duties but was bound to the terms for the judiciary as clearly laid out by the Revolutionary Council (See U Thein Zan vs. Union of Burma, 1967 BLR [CC] 660). In another case relating to the work of an area people’s court it found that with regards to the law for construction of a socialist economy it had no authority to receive appeals, writs or petitions to revise the orders of lower courts beyond what had been explicitly stipulated in that law, in effect writing off not only the role of the courts in helping to make law but also a great deal of their interpretive function, by implying that the state had the capacity to issue unambiguous law (Daw Aye Tin vs. Meikhtila District Area People’s Court Appellate Bench and Another, 1971 BLR [CC] 17).
Ultimately the court abdicated its power to the special criminal tribunals completely. In a 1972 case (Maung Chit vs. Union of Burma, 1972 BLR [CC] 28) the Chief Court bench headed by Dr. Maung Maung gave a ruling that the verdicts of the appeal bench of the special criminal courts had to be studied and applied in ordinary courts, for which purpose it had been issuing guidance to subordinate courts around the country, and to which it was itself also beholden to comply. Furthermore, it held that if the special appeal bench had reached a verdict in a given matter then it was unnecessary for a court to refer to any other precedent when deciding on the same type of case. The court registrar ordered that the judgment be distributed to all sessions and district criminal judges and that they in turn take responsibility to see that their subordinates were informed of it and that it was followed (Supreme Court Directive No. 9/1972, 21 July 1972).
With this ruling in effect the Chief Court was not the chief court at all. Not only did it make the appeal bench of the special criminal courts the de facto supreme court of the country but also cast doubt upon the capacity of the ordinary courts to perform the role of independent arbiters and interpreters of the law. The verdicts of the special appeal bench had already for some years been published and distributed alongside those of the Chief Court, including without any clarifications where there had been contradictions between rulings in one place and the other; from this decision it was evident that if there was a contradiction then it was the army-comprised court, rather than the army- appointed court, that had the final say.
Once this point was reached, it was a small step to the complete takeover of the system through wholesale removal of its personnel in 1972.
The legal turns political, the political goes mad
Over the latter part of the first decade of the Ne Win regime Dr Maung Maung left the chief justice’s post and worked on a new scheme of “people’s courts” based along the lines of some other ostensibly socialist countries, such as East Germany, where panels of untrained citizens were given the job of deciding cases instead of professional judges. In August 1972, on the back of a range of other administrative changes in advance of the new constitution, the entire judiciary was converted to an arm of the executive rather than an independent organ of state when the security and administration bodies at the state/province, dis- trict and township levels were ordered to establish justice com- mittees with which to occupy the courts. The special criminal courts were shut down and also ordered to transfer cases over for continued trial in accordance with ordinary criminal procedure; as the administration was now occupying the ordinary courts completely the special courts were no longer needed.
The justice ministry thereafter was responsible to see no less than three persons appointed in each court to try cases instead of a single judge, and to see that among them were “people’s representatives” who did not have professional training and who would instead receive advice from law officers. According to the Burma Lawyers’ Council, in practice this meant that a panel would discuss and reach a verdict and give it to a law officer to write it up in legal terms. One news item in the Working People’s Daily from around the time reported that the chairman of the Rangoon justice committee had appointed over 9000 of these people’s judges in his division who had in just nine months supposedly given verdicts in a staggering 30,000-plus cases.
Within two years, the work of these courts was further jumbled up when the one-party parliament followed constitutional dictates to establish a Council of People’s Justices elected from its own members as the supreme judicial body at the Chief Court, now renamed yet again as the Central Court, and committees of judges were formed at other levels from local executive bodies, all answerable to it, and appointed and removed in co-incidence with the appointing body. The majority of members on the top council were former senior army officers. Its first chairman, from 1974 to 1981 was Thura U Aung Hpe, a former colonel and divi- sional field commander, still carrying his honorific “thura” for distinguished army service. Another member of the first coun- cil was Colonel Hla Maung, also still carrying his rank. Only one of the first council of seven members had a law degree. Although as in other socialist states the official line still lent itself towards courts reaching their verdicts “independently”, all arrangements were made to the contrary.
The bar was abolished and its members made “people’s attor- neys” on the state payroll. The role of the courts was altered from the adjudicating of alleged crimes to the cooperating with other parts of the state to reduce crime and achieve a socialist economy. It was no longer one of deciding in favour of one party and against another but one of keeping one eye on some kind of law and the other on whatever policy had been cooked up.
Prohibiting fundamental rights
Although the language of the state was couched heavily in socialist rights and duties, and it established various laws to this end, in practice everything had been done to prohibit fundamental rights that had at least to some extent been enjoyed in the parliamentary era. Just as the 1932 Soviet constitution under Stalin had promised rights that could never be delivered, so too in Burma there was no possibility of relief for abuses of fundamental rights of the sort that existed to at least some degree in earlier periods. This can be illustrated with reference to cases of preventive or illegal custody, of which there have been many at all times and under all regimes in Burma’s modern history, but which after 1962 have lacked any effective remedies.
In the two years immediately after independence, when government authorities widely enforced emergency powers to combat myriad insurgencies and related violence, Maung Maung, when he was still enthusiastic about things such as the separation of powers, remarked that habeas corpus was “the most popularly invoked remedy”. The courts issued numerous orders to delimit the powers of government officials to keep people in custody. Habeas corpus was available both through the Supreme Court, via the 1947 Constitution (article 25), and through the High Court, via the Criminal Procedure Code (section 491). Throughout the 1950s the use of writs had continued to be widespread, in part because they were cheap and easy to file, and through them the courts remained salient and approachable for persons whose rights had been violated. After 1962, writ petitions were not formally abolished in the ordinary courts but there was no longer an independent functioning superior court to receive them and thus they simply became inoperable. But they had also been explicitly prohibited from the special criminal courts under its law (section 9), which is where cases most likely to give cause to charges of wrongful arrest and imprisonment would arise.
Reference to writ jurisdiction was thereafter completely erased from the subsequent 1974 constitution, and the only explicit writ- equivalent petition entertained was for review of lower courts’ proceedings on the ground of errors in law. A shadow of habeas corpus remained, through the Protection of Citizens’ Rights Law (No. 2/1975), which allowed for complaints to be made against state officers who abused their power, but there were by this time no independent avenues through which to lodge claims, no practical avenues for the effecting of relief of the sort envisaged by article 2 of the International Covenant on Civil and Political Rights. And as if to make a point, that law was immediately followed with the State Protection Law, 3/1975, which denied the rights under the former to persons detained under its terms, which were extremely wide and continue to be used to this day, including to keep Daw Aung San Suu Kyi confined to her house.
The few cases on illegal detention cited in various documents, despite the thousands of people detained and many disappeared throughout this time, speak to the total absence of guarantees and the lost understanding of what it ever meant to petition for the release of an illegally detained person. The last citation on habeas corpus in legal digests is from 1965, the same year that Maung Maung took the post of chief justice, but it did not actually relate to a matter of illegal detention at all and so it was dismissed (U Aung Nyunt vs. Union of Burma, 1965 BLR [CC] 578). In another case not in the law reports but written about in the Working People’s Daily during October 1976, an applicant named Daw Yin Kyein approached the apex court in 1975 with an affidavit to get a release order for her husband and son who had been arrested by military intelligence over a decade earlier, in 1964, and had last been known to have been sent to a “model prison” facility. The government law office repeatedly had the case postponed on various pretexts before finally the staff didn’t bother to appear at all and the men’s release was ordered in the same month as the news report, over a year after the petition was lodged in the court.
Matters were only made worse at times that special provisions were put in place, such as when military tribunals were established to try and sentence citizens after the dramatic events at the funeral of former United Nations Secretary General U Thant, and the protests in 1988. In the first case, martial law was imposed across Rangoon Division on 11 December 1974 (State Council Declaration No. 4), when university students kidnapped Thant’s body and entered a standoff with the security forces. Military tribunals set up to try offenders sentenced them to a minimum of three years. U Kyaw Lin, who was jailed by a military tribunal for three years over an offence (among others) that carried a maximum penalty under the Penal Code of six months, challenged the sentence in the Central Court but it was upheld on the basis that the military tribunals had been established in accordance with the law and the constitution, and there was no attempt to address the substance of his question about the contradiction of law that had resulted in the penalty against him being five times what it would have ordinarily been (U Kyaw Lin vs. Socialist Republic of the Union of Burma, 1978 BLR [CC] 6). And in Dr. Maung Maung’s book on the 1988 protests, when fifteen military tribunals were run from 17 July 1989 to September 1992 to try offenders (Martial Law Order, No. 1/1989) a pathetic scene is portrayed of the families of detained students desperately approaching the then-chief justice with letters of appeal for their release, only for the country’s top judge dutifully to turn the docu- ments over to the attorney general’s office, where they were also dutifully put on file.
For that, of course, Maung Maung blamed human weakness; surely it could not have been his demented creation. This is something that the designers and disorganisers of the pre-1988 system and the post-1988 system have in common: blaming others for their own disastrous handiwork. In many respects the systems are superficially different, Maung Maung having built up an unworkable and in many respects incoherent monstrosity, neither a fish nor fowl, consisting of borrowed ideas and bits and pieces of the old laws and structures pegged together with incompatible new pieces, the current regime having stripped the judicial system back to the model of straightforward army control from the top. But in both cases the incapacity of the people responsible for the displacement and dementing of the system to accept their responsibility is an abiding feature of the chronic continued abuse of the courts and in the courts. A government that is honest with itself and its people will at least acknowledge systemic faults for what they are, even if either unable or unwilling to do something about them. The greatest sign of political immaturity is in the incapacity to accept this much, and to blame the persons caught in the demented and confused system of one’s own making for everything that goes wrong.
Driving a legal system crazy
Burma’s legal system was through all of this pushing and pull- ing of its insides and outsides already suffering from deep confu- sion and uncertainty for its future, but it was driven mad by the constant reminders also of its past lives. The colonial-era laws at its heart were not extracted or replaced with anything else. On the contrary, people’s courts were called upon to enforce im- perialist law. A show was made of plans to revise and revoke outdated and inappropriate statutes, but these served the military as well as it had done the occupying order, and so the raft of codes that the British regime had imported from India over a century before remained virtually untouched, as is still the case today. In 11 years the Revolutionary Council officially issued 107 proclamations and 164 laws. Yet of these, the Penal Code suffered minor amendments but once, the Criminal Procedure Code likewise. This remarkably enduring foundation of the legal system is most noticeable in the silences around it in period propaganda and literature. For example, Dr Maung Maung in his 1975 general reader on the new legal system goes on at length about socialist concepts of law, and the bodies and management of the new system as opposed to that of the old, but barely even refers to the codes that were the basis for the orders that these new courts and judges were expected to pass.
As cases were still framed, categorised, brought, argued and ostensibly decided on the basis of these codes, their vocabulary persisted but was twisted to suit the interests of the new regime. Regard was still had to precedent for the purposes of interpreting,but not making, law; nor, for that matter, in deciding cases, un- less it was precedent established via the special criminal appeal bench. The dislike of precedent among the non-lawyers of the special criminal courts was especially apparent. Their appeal bench stated that precedent should be used “only for guidance” and not for reaching a verdict. It also held that precedent should not be treated as legal maxim and each case should be decided on its own merits and in order to “distinguish right from wrong”. (Captain Aung Win vs. Union of Burma, 1969 BLR [Special] 25. Ma Khin Myint a.k.a. Ma Khin Nyunt Kyi vs. Union of Burma, 1970 BLR [Special] 1).
Practices fundamental to the common law were also still partly retained and articulated, including the right to a defence, presumption of innocence, the benefit of the doubt, the burden of proof and equality before the law, but they also were disoriented and reduced. Among them, the presumption of innocence is perhaps the only one that continued to be firmly upheld in principle, even in cases where the accused was known to have committed similar offences. The importance of proof was also strongly emphasised in rulings and described as compatible with socialist jurisprudence. This was partly because in accordance with rulings from the special criminal courts the benefit of the doubt was not to be given lightly. It was reduced from an absolute principle to one among others that could be used in arriving at a verdict.
Legal articles and their footnotes were crowded with Latin and English terminology and continued to carry references to judgments from India, despite policy to erase “foreign precedent” and its language of law. Dr. Maung Maung, the foreign-trained barrister, in his general law text now belittled legal professionals who “were pleased with big words and could write long sentences”, and lawyers and law officers who, clinging to their big books and degrees, “recite the judgments that Justices Basu, Chaudhury and Bose laid down at the Calcutta, Bombay and Allahabad High Courts one time” but offered no intelligible or durable alternatives. Instead, as the judiciary was now a political rather than legal agency it was instructed to somehow obtain The Truth, rather than disinterestedly weigh up the alternative arguments. Obtaining The Truth, which was a particularly appealing topic for Dr. Maung Maung and one that he couched in the language of a religious ideologue, was not a matter of building upon a heritage of law and body of learning but just getting the facts out of the case at hand. Advocates for opposing parties, law officers and witnesses, although still working according to an adversarial procedure, were now expected to somehow work together towards this goal.
In 1988 the “people’s courts” and their baggage were uncer- emoniously consigned to history when the army shoehorned its way back into power as the old regime collapsed under weight of nationwide protest. But the ugly heritage of Ne Win and Maung Maung was not lost. It continues today in the procedural collapse of the system that is inimical to the rights of the public at large, where first information reports, daily diaries and charge sheets are filled out and filed only to record consistent breaches of the very codes to which they owe their existence, where there is no certainty of law and the systemic insecurity for the public in general vastly exceeds anything that preceded it.
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Central Organising Committee, Burma Socialist Programme Party (various articles and reports on party meetings, seminars and speeches; in Burmese)
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Is trust vindicated? Director of Information, Government of the Union of Burma, Rangoon, 1960
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Maung Maung, The 1988 uprising in Burma, Yale University Southeast Asia Studies, New Haven, 1999
——. General law knowledge, Win Maw Oo Publishing House, Rangoon, 1975 (in Burmese)
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