Category Archives: courts

Watching Court (Myanmar/Burma)

According to Eleven news, Thura Aung Ko, chairman of the Pyithu Hluttaw’s Legislative and Judicial Affairs Committee, is preparing to submit a bill that would open courts to video and audio monitoring. The move is designed to allow media to report more effectively on trials and combat corruption. As noted before on Rule by Hukum, Stefan Voigt’s research suggests that the quality of media supervision over the judiciary does indeed reduce judicial corruption. The bill could also increase public trust in the judiciary if it appears most cases are not decided on corrupt grounds.

There are of course concerns whenever cameras are introduced into the courtroom. First, there might be legitimate concerns with exposing court trials to the public, such as the risk that classified or privileged information might be revealed. Knowing Burmese law, it seems safe to say that there will be an exception for “public safety” or “public order” that can accommodate these exceptions.

Second, there is a risk that judges will “play to the camera.” To some extent, this might just make judges more flamboyant or dramatic (think of Judge Judy on American television). However, there is also a risk that, if cameras are used to grade judges in the court of public opinion, judges will feel compelled to respond to popular criticism in their handling of cases. Benjamin Liebman has noted that Chinese judges have become very susceptible to public opinion especially because the Communist Party grades judges on how well they manage to keep the peace within their jurisdiction. As such, if this bill passes, it will be important to explain what impact, if any, public perceptions will have on judicial promotions and tenure.

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Blaming the victim: (Myanmar/Burma)

Sadly, I’m starting to wonder if I should start a new section called “blame the victim” on Rule by Hukum. This week, two more Muslims have been arrested in connection to the communal riots in Okkan, near Yangon. One of the Muslim women allegedly accidentally bumped into a Buddhist monk, while another woman yelled at the monk for lying about the incident. The incident then caused a riot in which Muslim property was burned.

Of course, what happened to the monk is unfortunate. But the rioting against Muslims has gotten out of hand. Even more worrying has been the ineffective government response. According to The Irrawaddy“Burma has seen clashes between Buddhists and Muslims in several states this year, but so far only Muslims have been imprisoned.” This year, the government has convicted more than 10 Muslims but no Buddhists.

At Wilson Center event in D.C., Pyithu Hluttaw Speaker Shwe Mann recently reminded the audience that the 2008 Constitution bans religious discrimination. One can only hope the government finds a way to put that sentiment into practice.

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Contempt of court bill (Myanmar/Burma)

According to The New Light of Myanmar, the Pyithu Hluttaw passed a contempt of court bill. Unfortunately, no details yet.

Contempt of Court Bill passed for freedom of jurisdiction and public trust in judicature

Nay Pyi Taw, 28 Jan- The Pyithu Hluttaw passed the Contempt of Court Bill at today’s session to ensure freedom of jurisdiction, and public trust in judicature.

Daw Khin Than Myint of Ngaputaw Constituency as regards the bill suggested that legislations which should be known by the general public should be explained widely to the public in simple and comprehensible terms.

As regards the question about if there is any plan to retire the government staff members who have reached 60 so as to give promotion to experienced and skilled staff in respective government institutions, Union Minister at the President Office U Soe Maung replied that some those who have reached 60 were assigned as advisors according to work requirements.

If there are government staff members to be assigned as advisors, it is required to submit to the President Office and the approval is subject to decision of cabinet meeting.

Some of the major reasons behind such appointment are incompetency of the potential substitute and the superior’s lack of confidence in potential substitute’s performance.

In some ministries, a government official is trained to take the duties of higher positions, two levels higher in echelon as well as lower positions, two levels lower in echelon. He suggested that every staff member is to continuously try to perform the assigned duties efficiently.

Quality determines the position, especially those to be promoted to higher positions in technical field are to always try to meet the demands. There will be places for deserving young blood. In the future, those who have reached 60 would not be appointed as advisor but technician, concluded the Union Minister. The questioner U Aye Mauk said if they are appointed as technician and not as advisor, there would be vacancies for the qualified ones, calling for legislation of it if necessary.

U Thein Nyunt of Thingangyun Constituency submitted a proposal urging the Union government to consider the existing rates of court fee and stamp fee adjusted depending on Notification Nos. 122/2012 and 123/2012 of the Finance and Revenue Ministry on adjustment of court fee and stamp fee rates and Legislation Nos. 3 and 5 of the Pyidaungsu Hluttaw which amend the court fee and tax fee laws.

Deputy Minister for Finance and Revenue Dr Lin Aung replied that the rates were adjusted in line with the changing conditions and asked to document the proposal.The proposer agreed his suggestion and the Hluttaw decided to document the proposal. The tenth day session continues tomorrow.-MNA

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Law as a last resort (Myanmar/Burma)

During President Thein Sein’s first press conference ever, he addressed the problem of land disputes. Most reports, including one in The Myanmar Times, have focused on the conference as a sign of the president’s warming relationship with the media. However, his answers hint to his administrations larger views towards judicial reform.

In my article for the Australian Journal of Asian Law, I quotes several of Thein Sein’s speeches in which he seemed to urge the courts to work in harmony with the other branches of government. In the context of the Saffron Revolution and Cyclone Nargis, these warnings sounded like an ominous sign of judicial independence under a civilian government.

Of course, events haven’t panned out quite the way I’d expected. The Constitutional Tribunal was very bold in striking down government acts. Until, of course, it was impeached. As I’ve noted many times, it seems many in the legislature were unwilling or unable to conceive of courts acting as a constraint on government.

In the press conference, Thein Sein states that he prefers for land disputes to be settled by negotiation, with adjudication as a last resort. Of course, many people prefer non-litigious dispute resolution. Litigation is costly and frustrating. However, the president’s comments did recall those earlier speeches he had made and suggest he hadn’t simply made those comments under duress.

I have no reason to suspect the government has any intention to try to limit judicial independence in land disputes. However, between the impeachment of the Constitutional Tribunal members and Thein Sein’s own views, I wouldn’t be surprised if judicial reform in Myanmar focused on alternative  dispute resolution (ADR), such as mediation and arbitration. Indeed, as Erik Jensen has often argued, for developing countries less formal dispute resolution might serve societies better.

So far, I haven’t heard much about a big push for ADR in Myanmar, but if that’s what was on the president’s mind during his press conference it might prove a useful direction for Myanmar’s legal reforms.

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Burma’s courts: rhetoric vs. reality

The Asian Human Rights Commission released a statement condemning the continued subordination of Myanmar’s judiciary. AHRC alleges the government’s talks the talk, but so far hasn’t walked the walk:

“The legacy of judicial corruption is today in the foreground of media and public debate, but the anti-corruption rhetoric that we hear is essentially a continuation of the same type of rhetoric that successive military and military-backed regimes iterated for decades,” said the AHRC.

In reporting on the statement, The Irrawaddy highlights recent libel suits against The Voice and Modern Weekly.

While of concern, I do think the government’s rhetoric is changing. Whereas a few years ago military officials would admonish judges and blame judicial corruption on loose morals, now public officials seem at least implicitly more willing to acknowledge systemic problems that lead to corruption. As I’ve written before, the Hluttaw has even taken to reviewing allegations of judicial bias. What’s becoming more troubling now is the gap between acknowledgement of the problem and effective judicial reforms.

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Cowardly Courts?

As I’ve written before, Burma’s judiciary seems not to have reformed at the same pace as the rest of the political system. Several recent articles have highlighted this. The Irrawaddy reports that the Supreme Court dismissed a Kachin woman’s case against a local military battalion without even informing her lawyer! The Guardian notes that judges haven’t been merely passive victims, but rather participants in the network of corruption:

The problem in Burma today is not that judges are struggling to be independent against a heavy-handed regime, but rather that judges are part and parcel of decades of a military governing system. Judges routinely impose unjustified sentences in political cases, allowing them to keep their jobs and access to the benefits of a corrupt system.

As I’ve said before, this reminds me a bit of Indonesia right after Reformasi. There, granting courts judicial independence effectively insulated the system of corruption that existed within the bench and prevented outside actors, such as the Judicial Commission, from forcing reforms. As such I strongly believe Burma should take steps to improve the quality of the judicial system before moving towards robust independence.

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Book Review: Courts: The Final Word

Martin Shapiro’s Courts: A Comparative and Political Analysis is one of those special books that changes the way scholars view a particular subject. Typically, political scientists and lawyers have considered courts independent, apolitical institutions that apply predetermined legal rules in a rational manner. Shapiro turns this narrative upside-down. He shows that courts are in fact political actors that respond to political incentives. He begins Courts by discussing the conventional prototype of courts. He shows that some element of consent is required for legitimate dispute resolution. In tribal societies, this was resolved by direct consent obtained by the “big man” adjudicator from each of the parties. Losing parties would abide by the decision because they had agreed in advance and because they are part of the same social fabric. In modern societies, when parties might come from different parties of country – or even across the world – it becomes more difficult to compel them to accept an adjudicator’s judgment. Governments had to increase the power of judges to compel losing parties to appear at trial and obey judgments. However, in order to compensate for this lack of consent, Shapiro argues governments were forced to grant judges some element of independence. Fairness and justice compensate the parties for their lack of consent and therefore losing parties generally at least grudgingly comply.

In particular, Shapiro focuses on disproving four common misperceptions about courts. First, he claims that all courts have limits on their independence and that no judge is truly separate from politics. In order to demonstrate this, he discusses the English judicial system, widely regarded as one of the more independent. In fact, Shapiro shows how English courts have been subordinated first to the King, and then to Parliament. While Parliament seldom interferes in the daily administration of justice, it does pass broad laws limiting the discretion of judges and preventing them from reviewing administrative acts. Increasingly, judges can no longer “create” the common law, as had been the norm in the 18th century, but rather must apply parliamentary decrees. In fact, (at least when Shapiro was writing) there had been extremely few cases in which judges challenged administrative agencies on any politically sensitive matters.

Next, he questions the concept of judges passively applying predetermined legal rules. Here, he discusses the European civil law systems, particularly France, in which judges are presumed to simply apply the text of the legal code. Here he shows that even civil law judges must fill in gaps and interpret ambiguities within the supposedly comprehensive code in order to resolve individual cases. For example, French judges had routinely employed “creative interpretations” of the personal injury provisions in the code in order to reduce burden of proof on plaintiffs in automobile accidents. Some of their legal gymnastics would have made a common law lawyer blush. Civil law lawyers and judges might not refer to “jurisprudence” as the source of law, but in reality jurisprudence forms the basis for interpreting the code for specific factual situations.

Courts then looks at imperial China as a system that is commonly regarded as based on mediation rather than litigation. Many scholars of Chinese law claim that Chinese citizens are averse to litigation and prefer mediated settlements. Again, Shapiro shows how this stereotype neglects important institutional and cultural developments, such as the comprehensive Chinese penal code. Indeed, he argues that all legal systems combine elements of mediation and judging. Mediation at the lower levels in China was undertaken with the threat of litigation in the background. In official litigation, the magistrate could impose severe penalties even for petty crimes. This usually convinced parties to settle their claims and find a solution so as to avoid the harshness of the state. Neither party wanted to risk severe punishment in most cases. Rather than a cultural norm against litigation, Shaprio shows that this system was the result of strategic political design. Pushing most cases toward mediation provided the imperial bureaucracy with a cost-effective mechanism to handle disputes and minimize the number of officials on the imperial payroll.

Finally, Shapiro argues that some system of judicial appeal is crucial so that political elites can monitor adjudication and provide a chance to correct errors. Here, he looks at the Islamic legal system, which has often been portrayed as “kadi justice” dispensed only at the first instance level. Unlike the other great families of law, Islamic law is not unified and does not have a strict legal hierarchy. There is no Muslim pope and different philosophical schools issued competing interpretations of shari’ah. As such, there was little demand for appeals within Islamic law. Litigants could simply retry their case before a different judge (from a different school) – the ultimate in forum shopping. By contrast, appeals mechanisms have arisen in the Islamic world when the secular state has established an adjudication system (often to avoid the heavy burden of proof under shari’ah).

Courts is a great introduction to comparative courts as it covers the four main legal systems. However, Shapiro’s narrative probably shouldn’t be taken as the final word on the history of any of these legal systems. Shapiro’s goal is to argue that courts are political actors and the implications of that argument. This book is design to dismiss stereotypes and generate new theories. Indeed, it seems like every page contains a pearl of wisdom – or a great idea for a dissertation thesis.

Courts is a must for anybody interested in courts or the rule of law. It’s a tough read, but well worth it.

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