This is the first time Brunei Darussalam has made it into a post of Rule by Hukum (a dubious honor to be sure). According to Reuters, Sultan Hassanal Bolkiah has stated that the country would enforce shariah criminal law. Shariah law famously includes harsh punishments, including stoning for adultery, but in theory these are balanced by the high burden of proof and significant discretion given to judges. The version of shariah implemented in Brunei will be much stricter than anything currently in force in Malaysia or Indonesia, so Brunei will likely bear closer scrutiny from human rights advocates and lawyers from now on (including Rule by Hukum).
Category Archives: criminal procedure
The Asian Legal Resource Centre has submitted a statement to the United Nations Human Rights Council criticizing the lack of progress under Myanmar’s new parliamentary government. One paragraph deals specifically with the criminal justice system:
Criminal justice: Structural changes to the judiciary under the 2008 Constitution have not been accompanied by any changes, or any evidence of intended changes, in the judicial system’s actual operations. On the contrary, it continues to be as closed and obscured from public view as before, perhaps even more so. For instance, at time of writing still no biographies or details have been made known publicly of the new Supreme Court justices, among whom three are believed to have come from the armed forces, two others from the civil administration. Legal professionals have doubts about the background and abilities of these persons, yet they too have no detailed knowledge about them, let alone the opportunity to discuss such matters. Meanwhile, legal professionals also say that the amount of corruption in the system is growing exponentially, as the costs of living rise and more and more judges and lawyers look to whatever opportunities they can to make as much money as they can. In some courts, lawyers estimate that up to 70 per cent of cases are decided in part or whole through the payment of money. This situation will continue to worsen. Simultaneously, no evidence exists to suggest plans for any meaningful reform to the highly abusive and corrupt police force. [emphasis mine].
First thing to note is that I’m not the only person having trouble finding out more about the current Supreme Court and Constitutional Tribunal justices. More substantively, ALRC primarily criticizes corruption within the system. While Myanmar’s government has certainly not done nearly enough to tackle corruption, regular readers of this blog will hopefully have come to learn that no Southeast Asian country has a monopoly on judicial corruption. However, if President Thein Sein was serious in his inaugural speech that his administration would combat corruption, one can only hope that somebody on his team looks at best practices from other countries or at least consider establishing a judicial commission to vet judicial nominees and investigate allegations of corruption.
It’s not often that we get insights into Burma’s criminal justice system. The biggest glimpse was probably last year’s trial of Aung San Suu Kyi. This morning, Irrawaddy published an interview with criminal defnese attorney Aye Nu Sein, who represented Arakanese abbot Ashin Pyinnya Sara. His client was just sentenced to 8 years and 3 months imprisonment for running a private orphanage. Aye Nu Sein is understandably reluctant to speak too frankly, but nevertheless provides enough hints to reveal what he really thinks about the system.
Burma’s justice system remains amongst the most opaque in Southeast Asia. While the law nominally mandates open trials, the judge can order a closed trial at his or her discretion. Yesterday, according to Democratic Voice of Burma, there was an interesting case of a judge apparently allowing the defendant’s family to attend trial, only for the family to be blocked by Military Intelligence. The entire article is worth a read as it provides a brief glimpse into the Burmese criminal justice system.
While looking for a copy of an Indonesian statute, I came across news of an odd case in HukumOnline. Apparently, under the Indonesian Code of Criminal Procedure (“KUHAP”) Article 263(1), only convicts or their heirs can seek a judicial review of their conviction. In Taswin Zein, the Supreme Court recently rejected an appeal from a Department of Labor and Transmigration official convicted of corruption because his lawyer filed the appeal on his behalf. Of course, for American lawyers, that outcome is unimaginable – we tend to assume that laypeople wouldn’t know how to file a pro se appeal. However, beyond this obvious fact, two things struck me about this case.
First, there seems to be a growing debate within the Supreme Court over whether to interpret a statute strictly or loosely. In other words, should the law be applied facially even when it results in a perverse outcome, or should it be reinterpreted to fit current norms of justice? This is a question that plagues any court that engages in any legal interpretation (that is, almost all of them).
According to the HukumOnline article, courts had tended to interpret such laws in a relatively relaxed manner. Now, there is more support for a strictly technical approach. I’d be curious to learn the reasons behind this shift. Indeed, the provision in question in the Taswin Zein case seems to be of the worst kind of legal technicality – the one that makes people hate lawyers. However, Justice Krisna Harahap did provide one plausible explanation in support of a purely facial reading of KUHAP § 263(1):
Many convicts… are convicted whilst being fugitives in other countries… if an attorney could file a case review for such convicted fugitives, it would be tantamount to a luxury extended to corruptors by the justice system.
I’ll leave it up to the Indonesian lawyers to resolve this legal debate. I do wonder though if it will eventually evolve into philosophical divisions of the kind we see in U.S. jurisprudence, like originalism or active liberty or purposivism, that construct legal theories justifying approaches to legal interpretation.
Another thing I noticed is that the HukumOnline article addresses the Indonesian Supreme Court justices as “Mr.” Supreme Court Chief Justice Harifin Tumpa is referred to as Mr. Tumpa. This seems to be a basic breach of protocol. It could well be a cultural difference, but I don’t ever recall seeing Indonesian justices referred to as “Mr.” before. Rather odd…