The effort towards constitutional amendment is still unsuccessful in the Parliament.
The people understand that the 2008 Constitution cannot be modified as easily as expected. But some are hopeful that there might be a chance to escape from the existing political dilemma.
The current state of charter change is not in the way the people want it to be. It is just an obligatory effort of the Union Solidarity and Development Party (USDP) to prove that they have tried to amend it; just an insignificant part of it has been modified.
The National League for Democracy (NLD) wants the charter to be amended. But it does not appreciate the methods of the USDP.
Meanwhile the military representatives, who form the 25 per cent of the seats in the parliament, confirmed that they did not want to change the constitution. Its stance on the constitution is similar to that of the USDP.
There was a chance to escape from the political dilemma through the charter change. USDP created the opportunity. The NLD tried to go with the flow, but the military personnel blew the chance.
Refusal of Section 261 and its ill consequences
Section 20 (f) of the 2008 Constitution rules that the Defence Services is mainly responsible for safeguarding the Constitution.
Section 20 (e) mentions the important point: "The Defence Services is mainly responsible for safeguarding the non-disintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty".
It is acceptable that the military does not want to alter the sections 59 (f), 60 (c), 418 (b), 436 (a), and 436 (b).
But it becomes problematic when it again denies modifying the provisions of Section 436 (b).
The military wants the Section 261, which concerns with the ethnic groups, to remain unchanged.
The provisions of Section 261 are not similar to sections 59 (f), 60 (c), and 436 (a). There could be accusations that the efforts to change those sections are meant for the advantage of a particular individual or organisation.
But Section 261 is important not for certain groups but for all the ethnic nationals. It is also crucial for the federal union which Myanmar tries to attain in future.
If such sections remained unchanged, there would not be a federal union, just a central control ruled by the majority Burmese.
On the other hand, the peace process the President Thein Sein has strived for will be undone if Section 261 remains unchanged. The civil war may pay a comeback, and one of the duties of the defence services will fail.
Continued refusal to reform the judiciary
The military already said no to modify the important sections of the constitution. They cannot be altered as the military representatives won when it was decided by voting.
The proposed amendment of Section 261 will be put to the vote within a few days. The military representatives said they did not want the section to be changed. It seems they do not want to follow the desire of the ethnic groups.
Another important point concerns 51 million people: the reformation of the judicial branch.
The military representatives discussed to keep the existing provisions. They refused to modify with their old approach.
If the existing provisions of the 2008 Constitution concerned with the judiciary remain unchanged, there are two questions: 1) Are they trying to keep the judicial branch, which is losing popular support without any reform? 2) Do they want to continue holding on to dictatorship?
The proposed amendment draft does not contain much about judicial reforms.
There are the Union Chief Justice and two Deputy Chief Justices. The President, the speakers of the upper and lower houses will appoint each deputy chief justice to the Union Parliament which is supposed to elect the Union Chief Justice by voting.
This is the way of electing Union Chief Justice which is similar to that of the President.
Another provision that needs amendment is the tenures of Chief Justice of the Union Supreme Court and its judges, the Chief Justice of Regional/State Supreme Courts and their judges.
The provision states that the President is supposed to appoint the Union Chief Justice, and the Union Parliament is to approve.
And the provision does not limit the tenures; the Union Chief Justice and the judges of the Union Supreme Court can be in service till the age of 70.
The Chief Justice and judges of Regional/State Supreme Court can be in service till the age of 65.
The amendment is to limit the tenures of all the judges, including Union Chief Justice, to five years.
The military representatives wanted the original provisions of the constitution that concern with the judicial branch unchanged. Their refusals came with two reasons.
If the Union Chief Justice and Deputy Chief Judges are to be appointed by the parliament, it means the legislative branch has influence over the judicial branch.
The second reason is that if the tenures of the judges are limited, it will become similar to that of executive and legislative branches. If the service tenures of the people in judicial branch are limited in political style, the judiciary will tilt. Further, changing the judicial officers every five years may result in the form of over-controlling the judiciary and may harm the independency of the court.
And limiting the tenures of judges is uncommon in the democratic countries including the United States. Only the countries with the single-party ruling system limit the tenures of judicial officers similar to that of people in the parliament and the government, according to Lieutenant Colonel Ye Naing Oo, a military representative.
In fact, there are democratic countries that limit the tenures of judges: the tenures of judges in South Korea are limited to six years, and those in Switzerland, five years. As said by the military representatives, the single-party states like China limits to five years, and Vietnam, five years.
The system of Myanmar is not similar to the US style or the single-party ruling system. As said by the governmental officers, it adopts multi-party system.
But the country's judicial branch needs reform. If the proposed method cannot be accepted, the branch has to be modified in another way.
Military representatives worry that the judicial branch would be influenced by the legislative branch. But it is undeniable that the executive branch currently influences the judicial branch.
The legislative, executive, and judicial branches are meant to check and balance each others. If the military representatives do not want one branch influencing another, they should think about how not to let the executive branch influence judiciary.
Nothing said at the first draft of amendment
The current draft of constitutional amendment was submitted by the USDP.
There was the one submitted by the Joint Committee for Realising Charter Change prior to the current draft.
The joint-committee's draft recommended modifying 210 sections. But it could not make it to the Parliament.
The USDP's model advises to alter 28 sections, which were extracted from the joint-committee's draft.
The joint-committee's draft – released in October 2014 – contained remarks about the sections to be modified, why do they need amendments, and how to modify them as stated by the parties and organisations. It even contained the recommendations of the military.
Notably, the military representatives did not give any advices when it came to reforming the judicial branch back then.
They gave advices to the modification of the basic principles of the Union, and Section 436. They did not make any remarks over Section 59 (f), Section 261, and judicial reforms.
Only when the USDP submitted the draft, the military representatives discussed broadly that they did not want those sections to be changed.
The reason behind is known only to the military representatives themselves.
It is subject to question why the military representatives did not give their input in the first draft of constitutional amendment.
Why Myanmar's judiciary needs to be reformed
Military representatives refusing judiciary reforms may result in ignoring the desire of 51 million people.
Right now, Myanmar's judicial branch is not encouraging.
This is because the executive branch has directly appointed the judges throughout the ages.
The 2008 Constitution similarly regulates the President to appoint the highest judicial positions. That is why the Parliament wants to change.
“As the administrative authorities chose and appointed chief justices under the previous governments, the executive sector influence over the judicial sector, which decided what the former had asked. Till today, the people still think the administrative sector is the most influential. Regarding land grabbing problems, we can still see the decisions are made by the administrative sector, instead of the judicial sector,” said Lower House MP Aung Thein Lin during a session of the Union Parliament on July 2.
We can say what he has said is true. The reason we cannot fight against the bribery and corruption deeply rooted in our country is due to weakness in the judicial sector. Corruption is rife even in the judicial sector. This point can be seen in the report submitted by the Lower House’s committee for the rule of law and peace and stability in last September. The committee received 7,270 complaints, among which 3,500 were filed against the judicial authorities.
In 2014, the Anti-Corruption Commission received more than 500 complaints. But till February this year, only nine out of those complaints had been settled.
Myanmar’s corruption level is still worsening, according to the reports of Transparency International. The 2014 ranking showed that among 175 countries included in the Corruption Perceptions Index, Myanmar is ranked 156th. The situation is the worst not only in the international community but also in the Asean region.
Lower House MP Thura Aung Ko has said in parliament that bribery and corruption can be fought only if the judicial sector is just and correct. He cited Japan, Germany and China as examples.
“We can read from daily newspapers that the Chinese government is giving heavy prison sentences to corrupt military and civilian officers in its fight against bribery and corruption. As their judicial sector is correct and independent, the rule of law has improved and it has become one of the top countries in the world. We should copy this. As the rule of law is weak in Myanmar that has a population of just over 50 million, we always have to see chaotic situations,” said Aung Ko during a session of the Union Parliament on July 3.
The question for the judicial sector
We have a question as to whether the judicial sector is really independent although the Union Supreme Court is trying to keep the judicial sector upright by adopting a strategy. The Parliament proposed to amend Section 18 of the Peaceful Assembly and Procession Law, but by-laws, procedures and orders have not been complete. So activists are still facing imprisonments under Section 18.
The situation is the same in the law promoting farmers’ rights and interests. The bill to form groups for court monitoring was submitted in parliament but suspended.
Similarly, the bill preventing unfair arrest and torture was suspended. We therefore question the judicial sector why those laws, by-laws and orders related to public interest are slow to come out.
Meanwhile, the Union Chief Justice, judges for the Union Supreme Court and regional chief justices have been appointed by the executive sector.
Currently, the Union Supreme Court has seven judges including Chief Justice Tun Tun Oo. Among them, Tun Tun Oo, Tha Htay, Aung Zaw Thein and Myint Han have come from the military. Mya Thein, Myint Aung and Soe Nyunt are civilians. Therefore, we can say four are from the military and only the three others are civilians.
Likewise, some chief justices from regional high courts come from the military.
The Anti-Corruption Commission is also formed with most that used to serve in the military.
In the 15-member commission, Mya Win, a retired major general, is chairman. Out of the 15, eight are ex-military officers.
Due to these points, we wonder if the military has opposed the restriction of tenures of judges.
In reality, the ruling USDP itself is willing to impose such restrictions.
For example, Upper House speaker Khin Aung Myint himself from the ruling party himself has proposed appointment of the Union Chief Justice only by the Union Parliament.
“The provision saying that the President shall submit the nomination of the person suitable to be appointed as the Chief Justice of the Union to the Union Parliament and seek its approval would mean that courts falls under the control of the executive sector as the president is entrusted with power to appoint the head of the highest court in the Union. Therefore, it should be amended to say that the Union Parliament shall choose and appoint the Union Chief Justice,” said Khin Aung Myint in a report of the constitutional review committee issued in October 2014.
Conflict or what system in constitution?
The current circumstances show that the appointment of judges from the judicial sector by the administrative sector does not work. The military does not want the judicial sector to make those appointments.
Changes should be made if we want to improve the situation. We have seen conflict in the constitution regarding the judicial sector.
Under Section 18 (a) of the constitution, the Supreme Court of the Union is the highest court of the Republic. But there are three groups for judicial affairs.
The first group is comprised of the Supreme Court of the Union, High Courts of the Regions, High Courts of the States, courts in Self-Administered areas and district and township courts.
Military courts are the second group and the constitutional tribunal the third.
In the constitution, Chapter (6) on judiciary says 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.
This means that the Union Supreme Court is the highest court but it cannot fall beyond the capacity of military courts and the Constitutional Tribunal. This is unseen even in the United States and Britain. Unless there is limitation over the tenure of a judge in the US, the Supreme Court and the Constitutional Tribunal should not exist either.
Another point I want to say is the judicial system. In the current judicial system, Myanmar uses a single judge in court hearings, not a jury system. The present system was used in the colonial and parliamentary democracy eras. There were two kinds of court—criminal and civil courts. Courts heard both criminal and civil cases from 1974 to 1988. The courts used jury system (a three-member jury).
After 1988, courts had a single judge for court decisions like in the parliamentary democracy era. Under the 2008 constitution, the same system is used and judges are appointed by the government.
So it is necessary to choose which system if we want to improve the judicial sector. Meanwhile, it is also up to the decision of the military representatives in parliament as to whether the executive sector will choose judges or not.
Don’t insist on opposing
The main duty of the military is to defend the country. It also has the duty to ensure integration of the Union and integration of national solidarity and safeguard perpetuation of the sovereignty.
In the countries ruled by democratators, the dictators appoint their followers in courts and constitutional tribunals. They use their followers in times of emergency to grip on to power.
To prevent this, Myanmar needs to ensure that the judiciary is independent from the administrative sector. The decision should be made only by the parliament which represents the people.
As the proposal does not say Union Chief Justice or a judge is not entitled to next term though their terms are to be limited, they can have the chance to be elected more than a five-year term depending on their morality. In that case, the judicial sector cannot be affected as the military MPs has feared.
In reality, the military should not oppose the proposed amendments to the judicial sector related to the public because they already have military courts.
If the military representatives continue allowing the administrative sector to choose judges, it will be a good opportunity for those who want to see democratators. Then it will be as though the military itself was willing to install dictatorship again.
As the military rejected changes to Section 261 of the constitution, the first step towards establishing a federal Union has been lost.
If the military opposes any amendments to the judicial sector again, it will be amount to making the second mistake and turning a blind eye to the will of 51 million people.