In Promoting Human Rights And The Rule of Law

Judiciary in Burma

The Role of Judiciary

In Promoting Human Rights And The Rule of Law

In Burma, the ruling State Peace and Development Council (SPDC) has institutionalized human rights abuses through what has been commonly characterized as Burma's "injustice system." Arbitrary arrests and unlawful prosecutions, used by the regime to silence its critics and discriminate against ethnic minorities and women, are perpetuated by the states judiciary, which serves merely as "an appendage of executive authority."

The Independent and Impartial Judiciary:

The Foundation for the Rule of Law

In the realm of human development, one of the core principles and drivers of economic growth, political modernization and the protection of human rights is the rule of law – a legal-political regime under which the law restrains the government by promoting certain liberties and crating order and predictability regarding how a country functions. In the most basic sense, it is a system that protects the rights of citizens from arbitrary and abusive use of government power and has the effect of furthering democracy.

Since its inception, the SPDC promised to usher in a functioning democracy, including and August 2003 announcement of a seven-step road map towards a democratic transition. Thus, it has a duty to establish and promote the rule of law as an indispensable part of its legal-political system. Indeed, as a state party to the Geneva Conventions and as a UN member state, the government in Burma has had an ongoing international legal obligation to protect its civilian by, among other things, a politically independent and impartial judiciary, an institution which is crucial to the establishment of the rule of law. It is necessary for resolving disputes among citizens as well as between citizens and the government in an unbiased, transparent, predictable and interpretive methodology. Political independence is achieved through the separation of powers, which ensures that the courts are respected by all parties to the dispute, especially by the government itself.

1947 Constitution and Burma's Judiciary

With independence of Burma, 1947 constitution came into force and that was landmark in Burma's journey to democracy. The judicial system was based on Common Law tradition. The Union Judiciary Act governed the judiciary. The main difference was the establishment of the Supreme Court, as the Highest Court of the land. It was the Court of final appeals but the feature of the system was that it was vested with powers to enforce fundamental rights guaranteed in the constitution. Burma's Judiciary then was independent and impartial and separation of powers was practice.

1974 Constitution and Burmas Judiciary

In the aftermath of the 1962 military coup, the judiciary lost its independence. Then the military regime applied 1974 constitution and people's judicial system was created. Accordingly, separation of powers was no longer practiced in accordance with the constitution.

Burma's Judiciary after 1988 Military Coup

Following the 1988 popular democratic uprisings, the military staged a coup again in September 18, 1988. Then, the Constitution was abolished and judiciary has been instituted under its total control. Judiciary Law 5/2000 (the "Judiciary Law"), implemented by the SPDC in 2000, provides the framework for the current legal system. Although under the Judiciary Law the judiciary is charged with "administering justice independently according to law," (emphasis added), the Judiciary Law undermines, if not eliminates, the separation of powers and leaves the civil society in Burma with no legitimate means of challenging the executive authority.

Burma's Judiciary and Independence Issue

From judicial aspect, "independence" issue has never been placed for debate in any public meeting or media or law schools or otherwise. Particularly, independence from executive is an untouchable topic for all legal communities and academicians who are knowledgeable, while it is unfamiliar with the general public who do not have enough knowledge on judicial norms. The principle, "Administering justice independently according to law," provide not only in Judicial Law 2000 but also in Article 19(a) of the 2008 constitution, does not actually guarantee institutional independence of judiciary. In today's Burma, judiciary does not exist as an independent institution, while the judicial proceedings themselves are also not independent in practice.

The Judiciary Law 2000

The Judiciary Law 2000 has no provision for how judges are to be appointed, how they can be removed, or their conditions of service. These matters are not provided in any other current law or constitution in Burma, and so are left to the military’s discretion. All appointments and dismissal were made only at the whim of ruling junta freely without publicizing any ground, consulting with the legal community, and receiving any suggestion from elected representatives. The current Chief Justice was appointed by the military in 1998. This was done by a military decree, which also effectively dismissed over 60 judges. On November 14, 1998, the SPDC “permitted to retire” to five, out of six judges in the Supreme Court, without providing any reason for their resignations and the vacant positions were replaced with four judges. The possibility of 80% of the Supreme Court judiciary simultaneously retiring is so unlikely that the event raises questions as to the independence and autonomy of Burma’s judiciary.

Then, on July 1999, another six judges were added 13 and then total number of Supreme Court judges was eleven. Since then on, no news was officially released by the junta that any one or more of Supreme Court judges were dismissed or forced to resign repeatedly. After that, in February 2003; more five judges were appointed and as such total number of Supreme Court judges was 16. It was against the existing Judicial Law 2000; because, total number of Supreme Court judges to be appointed in total are twelve. All the processes for appointment and dismissal of Supreme Court are done at the whim of junta. The term “judicial tenure” is mockery for the current judiciary in Burma. Furthermore, there is no judges’ association to protect the security of judicial tenure.

It is clear that the military regime has no tolerance for independent judges. Judges that seek to perform their judicial duties as impartial adjudicators cognizant of the democratic separation of powers are typically dismissed while others bow to pressure from the military to retain their appointments. As to the removal of judges at lower levels, it is difficult for international observers to know how bad the situation is, as this information is kept from the international community.