Trial by Jury (Myanmar/Burma)

While Chapter XXIII of Myanmar’s Code of Criminal Procedure does provide for a jury trial in certain criminal cases, it has not been used since 1946. With Myanmar’s democratic reforms, some feel now might be the time to bring jury trials back. According to The New Light of Myanmar,* several MPs have asked about the possibility of reintroducing jury trials to Burma/Myanmar. The MPs claimed that jury trials would strengthen judicial independence and reduce corruption.

While there hasn’t been much comparative research on jury systems,[1] the preliminary evidence suggests that they might be right. Juries help reduce corruption by acting as witnesses in the courtroom – especially important because the Hluttaw Judicial Committee cannot review every single case itself. Jury oversight ensures that cases are decided in accord with the facts presented in the courtroom. Moreover, it is more costly for litigants to bribe multiple jurors rather than a single judge. Indeed, one study of over 50 countries shows that countries that use jury systems have more independent courts and less judicial corruption.[2]

Jury systems should have the additional benefit of educating Myanmar’s citizens about the legal system, another benefit the MPs cite. Currently, many Myanmar citizens avoid using the judicial system because they perceive it as corrupt or too complex. By participating in a jury system, citizens will have the chance to understand how the courts operate in practice. Surveys in the United States reveal that people who participate in juries tend to have more faith in the legal system.[3]

The risk of juries coming to the “wrong” conclusion is minimal if the jury system is designed fairly. In the United States, surveys show that judges and jurors agree in 64-80% of cases. In fact, experimental evidence shows collectively groups tend to make better decisions than even the best experts.[4] However, Myanmar’s evidence law must be reformed in order to exclude from trial any evidence that would inappropriately bias jurors. Also, achieving an actual representative sample of “peers” on the bench is crucial because, as the post-Civil War South showed, if peers simply represent an oppressive majority then the jury system simply becomes a tyranny of the majority.

If the Judicial Committee does decide to adopt jury trials, it should first review the Code of Criminal Procedure to ensure that it conforms to the 2008 Constitution. Moreover, the law should be reviewed to make sure it provides juries with enough authority. Section 307, which allows the judge to overturn a jury verdict if he disagrees with the outcome, risks giving judges too much discretion.[5] It is also important to allow Myanmar citizens to participate in the jury system quickly in order to give it more legitimacy. 

Overall, I’m optimistic that reformers inside the government are looking at jury trials. It won’t be a silver bullet for Myanmar’s ailing justice sector, but has the potential to change the incentives of actors within the justice system. I also agree with the MPs that it is best to introduce the jury system gradually, in phases, starting with a few townships.

[1] For more information about jury systems in other countries, see Valerie P. Hans, “Jury Systems Around the World,” Annual Review of Law & Social Science Vol. 4 (2008).

[2] Stefan Voigt, “The effects of lay participation in courts — A cross-country analysis,” European Journal of Political Economy Vol. 25 (2009).

[3] Neil Vidmar and Valerie P. Hans, American Juries: The Verdict (2007).

[4] Scott Page, The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies (2008).

[5] A similar problem weakened the jury system in Russia and failed to stop corruption in the courts. S.C. Thaman, “The nullification of the Russian jury: lessons for jury-inspired reform in Eurasia and beyond,” Cornell International Law Journal Vol. 40 (2007).

*MPs call for uprightness of judicial system, right to trial by jury

U Thaung of Mawleik Constituency, U Ba Shein of Kyaukpyu Constituency, Daw Nan Wah Nu of Kunhein Constituency, U Win Myint of Pathein Constituency and U Thein Nyunt of Thingangyun Constituency discussed the report of the Pyithu Hluttaw Judicial and Legal Affairs Committee submitted on 24 day session of the Hluttaw. Chairman of Judicial and legal Affairs Committee Thura U Aung Ko explained intention and stances of the report, followed by discussion of other MPs.

This was followed by a general round of discussion. They argued that uprightness of the judicial sector calls not only for duty consciousness of judges but also for participation of the entire public. Only with the checks and balances among the three supreme powers of the nation, can disciplineflourishing multi-party democratic nation emerge with good governance and clean government.

It is desperately required to correct the judicial system of the country, argued the MPs recalling the memories of judicial system with three or five judges at court in the time of Socialist Programme Party, citing that there was no corruption those days like these days. It is of useless to point a finger at the civil servants in service from 1989 to date. Hluttaw represen-tatives need to seriously consider what laws should be enacted to prevent corruption.

In the time of People’s Council, judges were just the representatives of people, which called for protection of law. In modern times, judges are scholars with a strong sense of rationality and no more protection should be given to them.

Conditions are different in other countries. If wished to see the results in shortest time, it is advisable to provide the civil servants with sufficient and revoke all the protective laws and again to enact these laws when civil servants have enough sense of responsibility and accountability. It would be more appropriate to make a shift to trial by jury beginning from the level of township judges together with people’s representatives. It would fulfil more wishes of the people.

Member of Pyithu Hluttaw Judicial and Legal Affairs Committee U Than Tun read report of the committee and the report was approved by the Hluttaw.

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