An independent judiciary?

Decades of authoritarian rule systematically weakened Myanmar’s judiciary and compromised the independence of its legal system. With economic and political reforms underway, Myanmar now faces demands from business and civil society to ensure its courts instill the rule of law, protecting the interests of the former and the rights of the latter. The Supreme Court, for its part, has begun to recognize its role and cautiously assert independence.

The Office of the Supreme Court, as part of a constitutional review process, submitted a letter to the president of Union Parliament to examine the independence of the judiciary. In doing so, the Supreme Court has asserted that Myanmar’s constitution, laws and policies must ensure judicial independence from other branches of government. This first step was almost unimaginable under the military regime. The ICJ believes this to be a significant development in the creation of an independent judiciary and calls on the legislative and executive branches of government to support the initiative.

Strengthening the rule of law requires an independent judiciary. Article 10 of the Universal Declaration of Human Rights says that everyone is entitled to a fair and public hearing by an independent and impartial tribunal. Whether it’s for fighting corruption, fostering good governance or attracting foreign investment, Myanmar needs judges and lawyers who are able to operate independently and impartially to provide proper jurisprudence and, importantly, change the public’s poor perception of the system.

An independent judicial system is crucial to the protection of human rights. It plays a major role in ensuring victims effective remedy and protection, and that perpetrators are brought to justice by fair trials. The judiciary provides an essential check and balance on other branches of government, ensuring that new laws and policies passed comply with the constitution as well as international human rights law standards.

In this context, the ICJ has pledged to work closely with the Supreme Court to build capacity and independence in line with the Constitution of Myanmar and international standards. While reform has been slow, there are signs that the judiciary is beginning to carve out a role in upholding the rule of law, providing fair trials and protecting human rights in Myanmar.

Other examples of tentative independence have emerged. The ICJ collected certified copies of cases heard by the Supreme Court in Naypyitaw. The administration officer noted that, ‘you are the first to collect these type of cases in such numbers.’ That this basic legal research is now possible reflects a renewed openness on the part of the Supreme Court. Permission is now easier to obtain and lawyers can now more easily access jurisprudence. Until now, Myanmar’s common law system under utilized written judgements and jurisprudence.

Meanwhile, a District Court in Dawei has accepted a civil lawsuit against the Myanmar Ministry of Mines No. 2 Mining Enterprise and its joint venture partner Myanmar Pongpipat Company Ltd. for damages caused to by pollution from the Heinda mine. Previously, the executive discouraged local courts from hearing cases against the government ministries or their commercial operations. It is understood that this is the first time a court will preside over a case of this nature and could act as a litmus test for the legitimacy and independence of the country’s judiciary.

Recent positive developments aside, there remain monumental challenges to instilling the rule of law and human rights in Myanmar. There is no question—even inside the judiciary—that there is a lot of room for improvement in the recruitment, training, conduct and integrity of the system. Corruption, a lack of facilities and resources, as well as a legal education system deliberately undermined for three generations will not be overcome easily.

The courts of Myanmar are not yet independent. The executive maintains undue influence within the judicial system. Lawyers interviewed by the ICJ agree that in politically sensitive and criminal cases the state and security authorities continue to exert improper influence. In addition, multiple long-standing and systemic problems impair judicial independence, including the poor state of legal education, restrictions on the licensing of lawyers, and violations of lawyers’ rights to freedom of association. Lawyers in Myanmar lack an independent Bar Council.

Improving the independence of the judiciary and bolstering the rule of law requires a systematic and concerted effort from the entire government and in particular from the powerful executive and legislative branches of the administration. It will also require the allocation of significant resources towards training and capacity building for present and future judges and lawyers.

Without cooperation from the powerful executive and legislative branches of government, judicial reform and the independence of the judiciary will not be achieved. This not only undermines the rule of law and human rights but already threatens Myanmar’s stated economic policy of attracting foreign investment. After all, investors require an independent judiciary in which to assert their interests just as much as citizens require one to assert their human rights.

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