4.1

4.1.1

The Judiciary in Myanmar

PREVIEW

1. What is a ‘judiciary’? Write a definition.
2. What are the responsibilities of a judiciary and how does the judiciary fulfil these responsibilities? Make a list.

The judiciary of a country is responsible for interpreting and enforcing the law. It consists of different levels of courts. The law is interpreted by these different courts through decisions they make in legal cases, which can be based on a reading of a combination of national and international laws and standards. Their decisions in these court cases can guide how future court cases are resolved. Criminal courts enforce laws by determining guilt and sentencing according to evidence presented in court cases.

If someone believes a decision made at a lower-level court is wrong, they can appeal to a higher-level court. This means that their case can be tried again in a higher-level court and a new decision might be made. The right to appeal is important because lower courts might be more vulnerable to political pressure or corruption. It also provides a check on judges and an opportunity for errors to be corrected. 

There are three levels of courts in Myanmar:

• Township or District Courts are for most people who are accused of breaking the law.
• High Courts (also known as the State or Regional Courts) supervise the Township and District Courts and receive appeals from that level.
• The Supreme Court receives appeals from the High Courts. It also makes decisions about matters regarding treaties between Myanmar and other countries, legal issues between the national and regional or state governments and legal issues between the regional or state governments. 

The Supreme Court has the power to issue writs. A writ is a written order issued by a court that gives a command to a specific actor to perform or stop performing a certain act. People can petition the Supreme Court to issue writs in defence of their rights. Article 296 in the 2008 Constitution gives the Supreme Court the ability to issue five types of writs:

• Writ of Habeas Corpus, which releases a person who has been detained unlawfully.
• Writ of Mandamus, which commands a lower-level court, government agency or individual to perform or refrain from performing a particular act according to the law.
• Writ of Prohibition, which stops a lower-level court from continuing proceedings in a particular case over which it has no jurisdiction, or which prohibits a government agency or official from taking a certain action.
• Writ of Quo Warranto, which challenges an individual’s right to hold an office or a government privilege or the power to exercise a specific function.
• Writ of Certiorari, which reviews a decision by a lower-level court or a government agency, which might lead to another decision. 

Myanmar has two additional types of courts for special cases:

• Military courts are for cases involving any member of the Myanmar Defence Services.  
• The Constitutional Tribunal of the Union makes decisions on cases related to the 2008 Constitution.

REFLECTION/DISCUSSION

1. Why do you think a country has multiple levels of courts?
2. Why do you think Myanmar has a separate court related to the military and a separate court related to the 2008 Constitution?

Educator’s notes

The Defence Services Act of 1959, amended in 2010, established the current system of military courts in Myanmar. This system of military courts was also further confirmed in the 2008 Constitution (sections 293(b) and 319). 

Section 130 in the Defence Services Act allowed for legal cases involving members of the Defence Services to be tried again in a civilian court. However, section 8 in the Law Amending the Defence Services Act of 2010 removed this possibility. This means that all legal cases involving members of the Defence Services can currently only be tried in military courts, over which the Commander-in-Chief has the highest power. Appeals cannot be made to the Supreme Court (ICJ 2019:2).     

The International Commission of Jurists (ICJ) has concluded that Myanmar’s system of military courts has been used “as a tool to avoid accountability”, which enables “impunity for human rights violations by soldiers throughout Myanmar” (ICJ 2019).  

The Constitutional Tribunal of the Union makes decisions on cases related to the 2008 Constitution. It was created in the 2008 Constitution and installed in 2011. 

The International Institute for Democracy and Electoral Assistance (International IDEA) has explained that in order for a constitution to be “intended to be binding there must be some means of enforcing it by deciding when an act or decision is contrary to the constitution and providing some remedy where this occurs” (Harding 2017:1).

These measures can be done through a process known as ‘constitutional review’. Different countries use different systems for their constitutional reviews, but, in general there are two main systems. One system is more centralised and uses a specialised constitutional court or tribunal. The second system is decentralised and uses “a court with general jurisdiction over all questions of civil, public and criminal law - not just constitutional questions” (International IDEA 2017:1). Myanmar has a centralised constitutional tribunal system. 

International IDEA (2017:2) notes that:

Most states with a constitutional court have created it (or have dramatically reformed an existing institution, as in Taiwan) as part of a constitution-making or constitutional-reform exercise within the last 30 years. The constitutional court is usually seen as an essential mechanism to achieve and entrench democratic reforms, such as instituting multiparty democracy. States that have created constitutional courts have done so largely because they see the court as a necessary guardian of democratic institutions, constitutionalism and fundamental rights following a period of military dictatorship or totalitarian government.

Constitutional courts or tribunals are often established to have a specialised and strong focus on constitutional matters after a new constitution has been adopted. Such courts are often established when existing courts, such as a Supreme Court, are considered inadequate for handling constitutional matters (Harding 2017:2-6). 

However, constitutional courts or tribunals can also become very powerful and even act as a “fourth branch of government” (Harding 2017:7). Constitutional court judges might lack independence and impartiality, and also be under pressure to make certain decisions in politically important or sensitive legal cases. Moreover, in centralised systems, legal cases related to constitutional matters are tried in a constitutional court or tribunal without being tried in lower-level courts first. This means that politically important or sensitive legal cases are only tried once and cannot benefit from the reasoning that lower-level courts could otherwise have presented (Harding 2017:7).