Above the Law

Burma’s rulers will continue to lean heavily on the judiciary to impose their vision of a “discipline-flourishing democracy”

After decades of military rule, many Burmese are no longer aware that their country had one of the most progressive judicial systems in the region after independence in 1948. Judges had secure salaries and could only be removed for misbehavior or incapacity. The courts were not afraid to challenge the executive, and the Supreme Court proclaimed that the 1947 Constitution should be interpreted in a “liberal and comprehensive spirit.” Even at the height of insurgencies against Rangoon in the late 1940s, the Supreme Court ordered police to release men who had been detained illegally.

ILLUSTRATION: HARN LAY/THE IRRAWADDY

The slide from a judiciary with integrity to its present role as defender of the military began when the late Gen Ne Win seized power and imprisoned Chief Justice Myint Thein for six years—longer than he imprisoned former Prime Minister U Nu. When Ne Win drafted the 1974 Constitution, he removed any remaining separation between the judiciary and the government. He packed the Council of People’s Justice, which replaced the Supreme Court, with members of the Burma Socialist Programme Party. The Constitution required the court to “protect the socialist system” rather than the rights of Burmese citizens.

Although the military revived the Supreme Court in 1988, Human Rights Watch maintains that judges still “serve at the whim of the SPDC and must follow the directives of the military.”

As the world observed this past summer during Aung San Suu Kyi’s trial, judges will silence defense attorneys and refuse to allow witnesses to testify. They take orders from military intelligence to manipulate proceedings against political dissidents, such as the 300 democracy activists who were given lengthy prison sentences by the courts at Insein Prison last November. In commercial litigation, judges are known to auction off decisions to the highest bidder.

The 2008 Constitution will not significantly improve Burma’s corrupted judicial system. The Constitution separates the judiciary from the rest of government only “to the extent possible.” It allows the president or the Hluttaw, the Burmese parliament, to impeach justices for crimes as well as for vague offenses like “misconduct” and “inefficient discharge of duties.” Furthermore, the Constitution only requires the support of a quarter of members from either chamber of the Hluttaw to initiate impeachment proceedings, so military members in parliament alone could threaten judges with impeachment unless they agreed to the military’s agenda.

The 2008 Constitution also created a new Constitutional Tribunal to interpret and decide cases concerning constitutional law. This new body will be no more independent than other courts. Appointed proportionally by the president and the speakers of the two Hluttaw chambers, its nine justices serve for five years, ensuring compliance to military wishes by those who wish to be reappointed. An additional twist is that several government officials, including the president and speakers of the Hluttaw, can directly request the tribunal to rule on any part of the Constitution.

The National Convention never publicly explained why it established the Constitutional Tribunal. During genuine political transitions, such a court might demonstrate a commitment to democracy. For example, during South Africa’s transition from apartheid in the early 1990s, the African National Congress agreed to a strong constitutional court in order to reassure white Afrikaner and Zulu minorities that they would be treated fairly. In Burma’s case, however, where the court is controlled by a military that continues persecution of dissidents and ethnic minorities, suggesting that the Constitutional Tribunal is part of a commitment to democracy and or a guarantee to protect minority rights seems implausible.

From British colonialism through parliamentary democracy to socialism and military rule, Burma has accumulated many obsolete and contradictory laws that may not accord with the 2008 Constitution. Other developing countries have found it easier to rely on courts to determine the validity of older laws rather than review the entire legal code. Under Suharto, for example, Indonesia established administrative courts to remove older regulations that conflicted with laws parliament passed to attract foreign investment.