{"id":65,"date":"2015-08-26T09:00:06","date_gmt":"2015-08-26T09:00:06","guid":{"rendered":"http:\/\/alrc.asia\/wordpress\/?p=65"},"modified":"2015-09-08T13:02:32","modified_gmt":"2015-09-08T05:02:32","slug":"the-legacy-of-dictatorship-in-myanmars-judicial-system","status":"publish","type":"post","link":"https:\/\/alrc.asia\/article2\/the-legacy-of-dictatorship-in-myanmars-judicial-system\/","title":{"rendered":"The Legacy of Dictatorship in Myanmar\u2019s Judicial System"},"content":{"rendered":"

Thein Than Oo, Myanmar Lawyers\u2019 Network<\/strong> <\/i><\/p>\n

\u201cMyanmar is a country in which the rule of law is lexically present but semantically absent.<\/i>\u201d (Nick Cheesman- Opposing the Rule of Law).<\/i><\/p>\n

T<\/span>he above remark by Nick Cheesman, a Research Fellow at the Department of Political and Social Change, Australian National University, is a bleeding truth. Myanmar has a prolonged history of civil war and racial conflict. For nearly a decade of consecutive military \u201cReign of Terror\u201d, the Myanmar people have suffered extrajudicial killings, arbitrary detention, disappearances and have become IDPs. After some semblance of recent political reform, and five months ahead of the nation-wide election, many activists have been jailed, and journalists are facing great pressure, with many charged or sentenced to long prison terms. Nevertheless, the United States continues to praise the Thein Sein government as \u2018Democratic Reformers\u2019, while ignoring their iron-handed rule. The European Community has also jumped on this bandwagon. No on is asking whether the country\u2019s judicial system is independent, or whether the courts are still used as the junta\u2019s tool of oppression. It is undisputed however, that under Myanmar\u2019s military government, the judicial system is seriously corrupted and there is no rule of law.<\/p>\n

Nowadays, \u2018Rule of Law\u2019 is the favorite slogan of the government as well as the so-called opposition. Myanmar political leaders, from Hluttaw speaker Shwe Man to opposition leader Aung San Su Kyi, have called for judicial independence and rule of law reform. At the beginning of 2011, the 2008 constitution came into force. According to section 11(a) of the constitution, the three branches of sovereign power, namely, legislative power, executive power and judicial power are separated, to the extent possible, and exert reciprocal control, checks and balances among themselves.<\/p>\n

Nevertheless, the judiciary is still under the influence of administrative power. In 1991, under the reign of military intelligence chief Lieutenant General Khin Nyunt, a Burma Law Report was published that shook the legal community. The Law Report noted a shameful decision made in the case of \u201cUnion Vs U Ye Naung and one other – 1991 B.L.R-P-63\u201d, holding that<\/p>\n

\u201c<\/i>The appellant defendant Ye Naung and Mya Oo @ Myint Oo, Co-accused Win Naing and his wife Ma Than Than stated before the Military intelligence members how they committed the crime collectively in detail. Nevertheless these statements are not due to intimidation, coercion which is prescribed in Evidence Act Sec- 24. So it is no doubt to accept these statements as evidence.<\/i>\u201d<\/i><\/p>\n

Myanmar\u2019s legal system derived from the British colonial models, with Indian Codes generally applying to Burma in the colonial era. Since then, the Penal code and Criminal Procedure Code (CrPC) remain in force today, largely unaltered. CrPC Section 162(1) has barred the use of any statement made to the police as evidence:<\/p>\n

No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used as evidence (save as hereinafter provided) at any inquiry or trial in respect of any offense under investigation at the time when such statement was made:<\/i><\/p>\n

Provided that when any witness, whose statement has been reduced into writing as aforesaid, is called either for the prosecution or for the defense in such inquiry or trial, any part of such statement, if duly proved, may be used either by the defense or by the prosecution, as the case may be, for the purpose of contradicting such witness in the manner provided by section\u00a0 145 of the Evidence Act, or for the purpose of impeaching the credit of such witness in the manner provided by section 155 of the Evidence Act: and when any part of such statement is so used any part thereof may also be used in the re-examination or such witness for the purpose only explaining any matter referred to in the cross-examination.<\/i><\/p>\n

Despite this legal provision, the court decision to allow the confession as evidence was upheld by Chief Justice U Aung Toe, Chief Court Judge U Aye Ohn, U Kyaw Tint, U Myo Htun Lin and U Kyaw Win. This was a very shameful moment in Myanmar\u2019s judicial history. No civilized nation accepts confessions made to the police as legal evidence. Tragically, Myanmar\u2019s apex courts have never dared to overrule the \u201cYe Naung\u201d judgment to date.<\/p>\n

In July 2014, the so-called religious conflict broke out in Mandalay, resulting in long prison sentences for some Muslims after an unfair trial. One Pho Lone (alias Soe Zaw Htwe) and Thi Ha were sentenced to 10 years imprisonment for murdering a Buddhist. The two were further charged with illegal border crossing, contact with unlawful associations and breaking public tranquility. All these cases were based on a 92-page confession to the interrogation team of military and police officers. This was actually a statement to the police and confession to an authority other than a judge, which is barred by CrPc. 162(1) and Evidence Act Sec-26. Suddenly Pho Lone and Thi Ha, the two Muslims, were tried again at the Mandalay District Court C.R.T No-21 of 2015 for high treason under Penal Code section 122. The penalty for this is life sentence or death. Unbelievably, the prosecution again raised the two Muslims\u2019 92-page statement to the police. As their defense counsel I objected, but in vain. This clearly shows that the District Judge\u2014or the judiciary in general\u2014is still afraid of the military. This is the downfall of fair trial in Myanmar. It is truly a shame to be part of a country like this.<\/p>\n

According to the Constitution, the president nominates a Supreme Court Chief Justice, who is confirmed by the Hluttaw. The Hluttaw can only reject nominees if they do not meet the qualifications for the designations. The remaining Supreme Court and High Court Justices are nominated by the president in Consultation with the Chief Justice (S-299). Moreover, the text of the Constitution is somewhat vague and contradictory with regard to judicial independence. While section 10 (a) guarantees that the judiciary should administer justice independently according to law, section 11(a) states that the judiciary is separate \u2018to the extent possible\u2019, not entirely. With regard to the Supreme Court, section 294 states that, \u201cWithout affecting the power of the Constitutional Tribunal and the Courts-Martial, the Supreme Court of the Union is the highest Court of the Union.\u201d In other words, the country\u2019s Supreme Court has no jurisdiction to court-martial and over the Constitutional Tribunal. How can we then term it as the highest court of the country?<\/p>\n

The military can also easily pose a threat to judicial independence through the use of impeachment. The grounds for impeachment include potentially subjective terms such as \u201cinefficient discharge of duties\u201d (section 302). A quarter of Hluttaw members from either chamber can initiate impeachment proceedings; the military has its share of one-fourth parliamentary seats at any level of the Houses. The military can thus impeach any justice at any time, in accordance with the Constitution.<\/p>\n

It can therefore be unequivocally said that as long as this Constitution exists, an independent judiciary in Myanmar is like making a silk purse out of a sow\u2019s ear.<\/p>\n","protected":false},"excerpt":{"rendered":"

Thein Than Oo, Myanmar Lawyers\u2019 Network \u201cMyanmar is a country in which the rule of law is lexically present but semantically absent.\u201d (Nick Cheesman- Opposing the Rule of Law). The […]<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,3,17,6,8,9],"tags":[25],"class_list":["post-65","post","type-post","status-publish","format-standard","hentry","category-burmamyanmar","category-sri-lanka","category-thein-than-oo","category-vol14","category-v14n2","category-writers","tag-thein-than-oo"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/posts\/65","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/comments?post=65"}],"version-history":[{"count":1,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/posts\/65\/revisions"}],"predecessor-version":[{"id":233,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/posts\/65\/revisions\/233"}],"wp:attachment":[{"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/media?parent=65"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/categories?post=65"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/tags?post=65"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}