The judicial system, a design of former chief justice Aung Toe

A provision of the election manifesto of the National League for Democracy (NLD) stated that the judicial sector must be at the same level as the legislative and executive sectors and free from the influence of the executive sector.

The manifesto contained six stipulations about establishing a fair and unbiased judicial system:

The Union Supreme Court is the highest judicial body; the Supreme Court can manage and supervise the legal bodies under it independently; the trials must be held in front of the public – except from the situations where legal limitations are applied; the accused may have the rights to defend themselves in accord with the law; the judges are responsible to perform necessary tasks to hold a trial legitimately; anyone is innocent until he/she is proven guilty by law.

But such stipulations are not enough to establish a fair and just judicial system.

The current judicial system is about to collapse. According to the constitution, it is difficult to change the judges even the government changed.

Frankly, eight out of 10 judges need to be replaced to reform the judicial sector.

There was no good news in the last five years concerned with the judicial system.

The Thein Sein Administration has been strongly criticised for its judicial system in 2012. Some even said that the money rules the court instead of the judge.

President Thein Sein had said about the need of an open and transparent court hearing.

He again said in 2012 that corruption, abuse of power and malpractices were being handled.

But the situation has not changed in practice. The corruption thrives and more than 8,000 complaints against it were filed to the Parliament in 2013.

The corruption case was discussed in the Parliament but there was no significant improvement.

The Committee for Rule of Law and Peace and Stability – led by Aung San Suu Kyi – described the flaws in the judicial sector in its report to the Parliament in September 2014.

The committee received 7,200 complaints in 2014 and 3,500 of them were about the judicial sector.

The situation seems to get worse according to the report of the Lower House Committee for Scrutinising Complaints and Appeals and Judiciary and Legal Affairs submitted to the Lower House on December 8.

Tired of piles of complaints

The Lower House Committee for Scrutinising Complaints and Appeals and Judiciary and Legal Affairs received 12,360 complaints between July 2012 and November 2015.

A total of 1,485 were handed over to the relevant high courts and departments and received 1,071 replies.

Most of the complaints were disappointed over with the decisions of the different levels of court. When they were handed to the relevant courts, all of them gave the general answer “every complaint is handled in accord with the law.” The committee stated in the report that it found it hard to continue investigating.

So the committee came to conclusion: It was found that the corruption still exists in judiciary. The links were found in compromises among the different levels of judges as well as among the legal officials, and such situations were chiefly seen in criminal cases.

Moreover the committee stated that not only the judges but also the law officers, lawyers, prosecuting bodies, staff members and even postmen consist in the judicial sector, and therefore, the different levels of court need to be free from the corruption urgently.

The committee made it clear it is difficult to expose the corruption in different levels of judicial sector.

The complaints have been filed to the parliamentary committees but there was no significant action.

Who are those being oppressed?

The committee has pointed out the corruption is rife in criminal cases which is the current situation of the judicial sector.

The judiciary, however, suppresses the political and human rights activists. The rate of imprisonment of activists declined in September, but incressed back in October and November.

The report of the Assistance Association for Political Prisoners (AAPP) stated 96 people were jailed, and 466 were facing trials in September; 112 were jailed and 486 were being tried in October; 127 were jailed and 477 were being tried in November.

The judicial system is influenced by corruption in non-political cases, and takes strict measures against the cases concerned with politics. This fashion was observed under the former military junta.

The most recent case is the two-year jail sentence under Section 505(b) given to Thu Zaw Kyi Win and Naing Zaw Kyi Win on December 17. The brothers were jailed for demonstrating in support of labour rights.

There were many prosecutions concerned with political and human rights that can be deemed “unfair” after the November 8 election.

Saw Maung Gyi and Saw El Sei, the activists protested for land rights, were thrown into prison for two years under Section 17/1 for participating/communicating with unlawful organisations in Hpa-an, Kayin State.

A total of 11 people in Kayin State were jailed for two months and seven of them were farmers who protected to get back the lands forcefully confiscated from them.

Similarly, 14 activists that tried to ask for their lands in Michaungkan ended up in prison for three months.

Kyaw Swe, Kyaw San, Maung Maung Toe, Wunna and Myo Thu Htut who protested against the proportional representative system in Pyay, Bago Region, were given four-month jail term and hard labour under Section 19 of Peaceful Assembly and Procession Act.

Win Hlaing and Kyaw Swe in Pyay were sentenced also under Section 19 to spend five months in prison for protesting against the Myitsone dam project and calling for the release of political prisoners.

Kyaw Swe was already given four-month jail term and hard labour under other charges, and Win Hlaing had three-year-and-one-month jail term under other charges.

A Buddhist monk Yaypu Sayadaw was indicted and convicted under Section 42(b) of the forestry law; four students including Kyaw Ko Ko and Phyo Phyo Aung, who protested against the national education law, were charged additionally under Section 448; Chaw Sandi Htun was indicted under Section 66(d) of the Telecommunications Law very recently.

These cases happened after the NLD won in the November 8 election. The NLD has not made any comments on them. Similarly it still does not talk about how it will improve the judicial sector.

Myanmar's judicial system

The 2008 constitution mentioned in Section 18(b) that the Union Supreme Court is the highest court.

But the state’s judicial system can be divided into three parts:

The first one consists of Supreme Court, state and regional high courts, courts in self-administered zones, district courts, township courts, and legal courts.

The second is courts martial, and the third, the Constitutional Tribunal.

According to Section 294 under Chapter 6: Judiciary of the constitution, it is stated: “In the Union, there shall be a Supreme Court of the Union. Without affecting the powers of the Constitutional Tribunal and the Courts-Martial, the Supreme Court of the Union is the highest Court of the Union.”

It means the Supreme Court cannot rule out the courts martial and the Constitutional Tribunal in spite of being the highest court of the Union. Such condition is unheard of in the United States and the United Kingdom.

Moreover the bench trial is practiced instead of the jury trial in judicial system. The bench trial was also employed during the colonial era and the parliamentary era and there were civil court and criminal court.

Between 1974 and 1988, both the civil and criminal cases were tried at the single court and heard by a tripartite party, which was seemed as a jury trial.

Aung Toe became the Chief Justice after 1988. The bench trial was back in use and the judges were appointed by the government.

Since then, the executive body has influenced the judiciary openly and the corruption and bribery cases started to happen widely.

The judicial sector has been employed to oppress the politicians.

Aung Toe was the Chief Justice until President Thein Sein took the office in 2011. The judicial sector ruined the worst during the era of Chief Justice Aung Toe, and has not recovered in post 2011.

The main reason is the post-2011 judicial sector is still running within the frame mapped by Aung Toe.

The design of Aung Toe

Aung Toe, a long-serving chief justice for the military junta after 1988, controlled Myanmar's judicial system for over 20 years by dancing to the tune of military generals.

Than Shwe became head of state after Saw Maung. But Aung Toe remained as chief justice.

When the National Convention began in 1993, Aung Toe became chairman of the work committee for convening the National Convention while Major General Myo Nyunt acted as chairman of the National Convention Convening Commission.

When the National Convention ended in 2007, Aung Toe continued to hold the same post and General Thein Sein (now the President) became the commission chairman.

Aung Toe participated in the National Convention from beginning to end and he was a key player in drafting the 2008 constitution. In the constitution, he made judicial provisions as he liked.

In the constitution, the judicial branch is to be independent. But in practice, it is not like that.

Under the military regime, the chief justice and judges were appointed by the government. Under the current constitution, the Union Chief Justice is nominated by the President and then decided by the Union Parliament.

Union Supreme Court judges are nominated by the President in consultation with the Union Chief Justice.

Chief Justices of the States and Regions are chosen by the President in consultation with the Chief Justice of the Union and the concerned regional chief ministers. Actually, regional chief ministers are also appointed by the President.

The Union Chief Justice appoints judges for the regional high courts in consultation with the regional chief ministers appointed by the President.

Reviewing the process, the administration has the power to choose judges who are main controllers of the judicial sector. If we compare the current process with that of the previous military junta, it may be different in form but the same in essence. It is not strange that the judicial system under the military junta has been seen again under Thein Sein's presidency.

The last report submitted by the Judicial and Legal Affairs, Complaints and Appeals Committee of the Lower House says: "The constitution entrusts the President with the power to appoint the Chief Justice of the Union Supreme Court and appoint judges of the Supreme Court in consultation with the Chief Justice. Although the right to independence is recognised, the said provision seems to cause bias and the executive branch is found to have been influencing the independence of the judicial branch."

"Under the rights and powers entrusted by the constitution, it can also be reviewed that the judges carrying out their duties after being appointed with endorsement from the Chief Justice of the Union and chief justices of regional high courts shall not be free from the influence of those chief justices", the report points out.

These two points show that if any judge commits bribery and corruption or abuses power in the judicial sector, it could be the responsibility and accountability of the concerned regional chief justices and the Union Chief Justice as well as the President. 

Who is Chief Justice of the Union?

There are now seven judges in the Union Supreme Court, including the Union Chief Justice.

The Union Chief Justice is Tun Tun Oo, a former military officer. He served as Deputy Chief Justice under Aung Toe from 2007 to 2011. He became Chief Justice under the Thein Sein government.

The six other judges are Soe Nyunt (retired director general of the Judicial Department), Mya Thein (retired Yangon Region judge), Myint Aung (ex-regional judge), Tha Htay (former lieutenant colonel from the Advocate General's Office and former Election Commission member), Aung Zaw Thein and Myint Han.

Tha Htay, Aung Zaw Thein and Myint Han are former military officers. Mya Thein, Myint Aung and Soe Nyunt are civilians. Among those top posts of the Union Supreme Court, four are military officers and three are civilians.

Anyhow, the Union Supreme Court and regional high courts are formed in the way President Thein Sein likes. Such the way those courts are formed is also facilitated by Aung Toe, who made judicial provisions in the constitution to his heart's content.

After the November 8 elections, the Thein Sein government's tenure will be over in March, 2016. However, Thein Sein-picked up men such as the Union Chief Justice and judges of the Union Supreme Court and chief justices and judges of the regional high courts will remain even when the next government comes to power.

This is thanks to the judicial provisions enshrined by Aung Toe in the constitution. Even if the government they like is no longer in office, those they like will remain in the judiciary. And this is the scheme engineered by Aung Toe.

Those difficult to remove from power

Under the 2008 constitution, judges are difficult to be removed from their positions. What's more, there are very few chances to take action against and punish them.

It is not problematic if the judicial system is correct and independent. But it is a problem at a time our country's judicial system is rampant with corruption.

There are two reasons we find it difficult to remove judges from their positions. The first is their long-term service. The second reason is the complicated procedure to purge them. These two points are protected by the constitution.

In other words, Aung Toe masterminded the plan in order that the current judicial system could not be harmed. Meanwhile, making best use of this, they have been committing corruption in the judicial sector.

As per Section 303 of the Constitution, the Chief Justice of the Union and Judges of the Supreme Court of the Union shall hold office up to the age of 70 years.

Section 312 also stipulates that the Chief Justice of the High Court of the Region or State and Judges of the High Court of the Region or State shall hold office up to the age of 65 years.

The incumbent Chief Justice is only 59 years old so he can hold office for the next 11 years. Likewise, most other judges can hold office till after the year of 2020. I mean that when the NLD-led government takes office, the judicial system adopted by Aung Toe will continue to exist.

Under President Thein Sein's government, the judiciary is influenced by the executive. Such a situation is less likely under the NLD government. If the current constitution goes on in the same way as Myanmar was under the military junta, the country's judicial system will not change despite government changes.

The last report of the Lower House committee reviews that courts at various levels must be reformed in line with democratic norms if the judicial system is to be correct and independent and protective of the people. Without changes in the judiciary and judiciary system, the judicial sector could not be made correct.

How shall we go further?

Judicial system must be independent and free from corruption.

Under Section 19 of the Constitution, judicial principles are (a) to administer justice independently according to law; (b) to dispense justice in open court unless otherwise prohibited by law; and (c) to guarantee in all cases the right of defence and the right of appeal under law.

The phrase "according to law" as stated in the first point needs to be reconsidered. It is the jargon used by the previous military junta. As that phrase lacks a clear definition, the country's judicial system has been infamous for incorrectness and injustice after elastic-like laws have been enacted and used.

The report also blamed the generalisation of such a phrase for having difficulty in taking further action when the government sends a reply to the committee for public complaints.

If the phrase "according to law" is to be amended, the constitution must also be amended. Similarly, any amendment to the term of judges requires constitutional amendment.

Actually, there was an effort to amend the tenure of judges in parliament. The proposal was made to set the five-year tenure for judges. The motion was tabled by the ruling Union Solidarity and Development Party (USDP). But it was rejected by the military MPs. When some MPs were trying for charter change, a two-point proposal was submitted for the amendment to the judiciary.

The first point is for the parliament to choose the chief justice and deputy chief justices of the Union. The second is to limit their terms.

The proposal was turned down by the military side claiming that the legislative sector could influence the judiciary if those chief justice and deputy chief justices are chosen by parliament. If the judges' terms are to be limited, it will be the same as the terms of the executive and legislative. Then, the judicial system will get tainted, the military MPs said in their debate. A five-year term for judges could lead to influencing the judicial branch more than necessary, thereby affecting its independent judicial process. They also said limiting judges' terms is not found in democratic countries.

Other elected MPs defended the proposal about the term limitation, giving examples of other countries like South Korea (six years' term), Switzerland (five years' term), and China and Vietnam practicing a single-party system (five years' term).

However, the proposal was finally voted down.

We find it difficult to correct the country's judicial system and ensure checks and balances on judges without constitutional amendment. But there are some ways and means. To use those means, we need to enlist the public strength.

Public monitoring

At present, we cannot deny that the judiciary is not influenced by the executive. Our judicial system has not been independent and free from corruption. With the six points carried by the NLD's election declaration, it is not easy to make the tainted judicial system upright.     

With the provisions included in the constitution, we must ensure checks and balances on the judges. The Public participation is important for this.

Under the constitution, judges could be impeached and removed. They could be impeached for any of such reasons as high treason, breach of any provision of the constitution, misconduct and disqualification as prescribed in the constitution.

Among those reasons, misconduct is the best tool to impeach them. Any judge could be impeached and removed from their positions if they commit corruption, abuse power or pass incorrect justice.

If the people are to gather evidential information and if parliamentarians are to carry out follow-up procedures, corrupt judges could be punished in accord with the constitutional provisions.

The previous governments protected the judiciary. But now it is important for the incoming government to stop it. Otherwise, making the tainted judicial system upright is impossible.

Under current circumstances, about 600 out of more than 800 judges in the country should be replaced. Those who deserve punishment must be punished with the use of the Anti-corruption Law. This is the very first step. Then the judicial system must be reformed with new comers.

If the judicial system changes but the old corrupt judges remain in the name of national reconciliation, Myanmar will be in the circle of the judicial system that former Chief Justice Aung Toe has designed and there could be no progress.