Category Archives: Burma

July 14, 2011 · 23:41

If a soldier commits a crime…

It’s not uncommon for justice systems to permit the military to try their own soldiers in a separate courts-martial system. However, in more democratic countries, the constitution generally grants defendants the right to appeal their cases to the regular judiciary. Moreover, the military justice system’s jurisdiction is usually limited to incidents that occurred during the course in the line of duty.

By contrast, Myanmar’s new constitution establishes an autonomous system of military justice, in which not even the Supreme Court can exercise review of courts-martial. In an article posted on Mizzima, U Myo and James Tager argue that the Constitutional Tribunal can and should limit the military justice system’s jurisdiction and ensure that the regular courts can exercise review. While I suspect some of their prescriptions are somewhat idealistic, to say the least, they nonetheless provide a useful overview of the problems Myanmar’s military justice system might face. You can read the whole article here.

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Filed under Burma, military justice, Myanmar

July 9, 2011 · 02:11

"Shedding Light on Burma’s Judicial System"

Htet Aung, a journalist for The Irrawaddy, has written a fascinating account of a recent case in Burma’s judicial system. Unlike most news articles about courts in Burma, the litigants in this case aren’t high-profile political dissidents but rather farmers and workers. Their only crime was to resist attack from workers whose boss had close connections with Burma’s economic and military elite. The article is striking in that it shows how corruption and cronyism in Burma have filtered down throughout the judicial system. Unfortunately, this is the type of judicial corruption that is particularly problematic to uproot.

Aung Thein, a public interest lawyer associated with the National League for Democracy, was particularly critical of the courts. Htet Aung writes:

President Thein Sein pledged in his first presidential speech that the new government must carry out “clean and good governance.” Asked whether a reform of the judiciary should be one of the first priorities of the new administration, Aung Thein said, “Handing out the maximum sentence is such an easy job. Even a court clerk can do that.”

That highlights a crucial difference between the “rule of law” and “law and order.” The latter simply concerns controling crime, whereas the former requires elites and government officials to subject themselves to the law.

I encourage you to read the entire article here. I hope Htet Aung and his colleagues at The Irrawaddy continue to publish articles like this one about the courts.

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Filed under Burma, corruption, judicial independence, Myanmar

June 20, 2011 · 03:19

Commit thyself to the Truth

What do you do if your judicial system is notoriously corrupt and lacks any semblance of independence? One option would be to engage in a massive overhaul of the judicial system, but this entails risks and, as Indonesia has demonstrated, can prove difficult. Another option is to blame the judges.
For several years now, Burmese political leaders have lectured judges on the need to rule in accordance to the law and avoid corruption. The implication in several of these speeches has been that many judges have lapsed and they need to reform their ways. Now, the new Chief Justice, U Tun Tun Oo, seems to be carrying forth the same message – if a bit less harshly. Here is an excerpt from a recent article in The New Light of Myanmar:

“All citizens will be under the protection of law to enjoy equal rights and the judicial pillar will be strengthened,” vowed Union Chief Justice U Tun Tun Oo at a meeting with judges, law officers and court staff at Yangon Region High Court here this morning.

The Union Chief Justice noted that judicial system stands to settle rows and conflicts among citizens, bringing about stability of the nation.

Righteousness, fairness, calmness and sobriety are strength of judiciary. Judges should be committed to truth and thus are to do away with corruption and bribery, pointed out the chief justice, urging them to safeguard the judicial system.

There are a few things to note. First, the chief justice did not say that all citizens will be under “the equal protection of the law,” although admittedly this could simply be a matter of translation. More significantly is his portrayal of the judiciary as settling conflicts among citizens. Nowhere does he mentioned conflicts between the state and the citizen. As I mention in my recent article about Myanmar’s new constitution, citizens do not have standing to bring suits directly before the Constitutional Tribunal. Thus, most claims between the citizens and state will have to be handled in the regular judiciary.

Finally, and perhaps most worryingly, Chief Justice U Tun Tun Oo made no mention of judicial independence. In the past, Burmese political leaders have claimed some role for judicial independence, but also stated that judges must cooperate “in harmony” with other branches. The constitution also takes that approach, saying the judiciary is independent so far as possible (a qualifier, but judicial independence is always a relative rather than absolute concept). Whether or not this omission is significant is hard to tell at this point. What I can say is that the chief justice’s speech does not represent a sharp break from the past.

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Filed under Burma, judicial independence, Myanmar

June 15, 2011 · 02:44

Burma Constitution articles

Wow, I almost forgot to post these on the blog. First, my article for the Australian Journal of Asian Law on Burma’s new constitution was finally published. Second, I wrote a brief article summarizing Burma’s constitutional debates for Tom Ginsburg’s Comparative Constitutions blog. In both, I argue that the new Constitutional Tribunal will likely help the government centralize control over local government bodies and help manage and update constitutional interpretations. I’m looking forward to seeing whether my predictions come true over the next few years.

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Filed under Burma, constitution, Myanmar

April 26, 2011 · 16:40

More Burmese rule of law

Irrawaddy reports that National League for Democracy has also called upon Myanmar’s new government to adhere to the rule of law. As I mentioned yesterday, this seems to be an increasingly popular theme in the country’s political dialogue. However, I suspect the government has a different interpretation of what rule of law means. According to a New Light of Myanmar article from late 2007, then-Prime Minister Thein Sein told an audience of judges that the judiciary must work in harmony with the executive for the betterment of the country. Given the military’s dim view of the 1950s Supreme Court’s judicial activism, I suspect the new government will be wary of any sort of judiciary that might act as a check on the executive or legislative.

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Filed under Burma, Myanmar