Any intelligent talk about corruption and malpractice in a justice system must start by recognising that it is by definition systemic. The way that judges, prosecutors and police work depends largely upon how they are organised and administered. While there may be individuals among judges, prosecutors and police who abuse their powers more than others, an effective system of control can make their behaviour the exception rather than the rule.
The talk by the prime minister of Burma about judicial corruption and malpractice on February 5 was not intelligent talk. In his speech to judges and state law officers, General Soe Win, while rightly pointing out that judicial affairs have a big effect on society, stated that judicial failures and corruption in his country are “not because of the system, codes of conduct and procedures but because of personal weakness”, while others may be caused by a lack of skill or professionalism.
A group of lawyers, retired judges and human rights defenders from around Asia who gathered in Hong Kong during 2006 did not have time for such talk. By contrast, what they concluded was that the primary cause of judicial corruption was the non-separation of powers between the judiciary and executive. They identified secondary causes as including the lack of clear and effective procedures on appointment and remuneration of judges and for making of complaints against officials, and the lack of specialised investigators, equipment and laws.
What are the real causes of judicial corruption and malpractice in Burma? For all intents and purposes, the courts there are under complete control of the executive, as is everything else. The primary cause for judicial corruption and wrongdoing is the control of the courts by government ministries, which are in turn controlled by the military. As to the secondary causes, the executive also controls appointment of judges, pays them very badly, and runs one of the most primitive investigating systems in Asia.
The day after the prime minister’s speech, state-run newspapers carried announcements that people are entitled to make complaints against state officers whom they believe have committed wrongs. As in earlier similar announcements, complainants are invited to complain to the source of their grievance: complaints against officials of the Supreme Court may contact the court; those against officials in the attorney general’s office may contact the office, and so on.
What happens to complainants in Burma? Suppose a person answer one of these announcements with a grievance. U Tin Nyein complained about government officials who knocked down a dyke and destroyed his crops; he got two years’ jail, and only succeeded in getting out this January, after winning his appeal in the Supreme Court. U Aye Min and U Win Nyunt are in jail for complaining about corruption by officials in the same township, even though their complaint was originally accepted by the township authorities, only to be overruled by higher-ups. They lost all their appeals. Daw Khin Win has been in jail since last November for complaining about theft of land and cattle by local government officers in her area: her appeal is still pending.
The reason that this supposed system for making complaints is actually no system for making complaints is the same as virtually everywhere in Asia: it is not independent. A person unhappy about a prosecutor taking bribes must complain to the prosecutor’s own office. A person unhappy about a judge must complain to his place of employment. This is no solution: rather, and in Burma especially, it just opens the complainant to persecution by those whom he had sought to hold to account.
By contrast, the most vivid example of an effective counter-corruption campaign in Asia can be found in Hong Kong. There, the Independent Commission Against Corruption was established in 1974 after intense public outcry over massive abuses by government officers, especially among the police. The Hong Kong government did not put it down to “personal weakness”. Rather, it began from the understanding that the deep systemic problems resulting in gross misuse of power and malfeasance required a complete separation of the receiving, documenting, investigating and prosecuting complaints from the rest of the state apparatus. The governor at the time acknowledged that,
“I think the situation calls for an organization, led by men of high rank and status, which can devote its whole time to the eradication of this evil; a further and conclusive argument is that public confidence is very much involved. Clearly the public would have more confidence in a unit that is entirely independent, and separate from any department of the Government, including the Police.”
This is a more useful starting point for talk on corruption and malpractice than that it is “not because of the system… but because of personal weakness”. And while we shouldn’t expect any better from the generals hanging on to power in Burma, we can expect it from the people of Burma, and others outside of the country concerned about prospects for human rights and the rule of law there.
The Asian Human Rights Commission therefore calls upon judges, lawyers, prosecutors, government officers, human rights defenders, complainants, prospective complainants and other interested persons inside Burma and abroad to use the speech by General Soe Win as an opportunity: talk more intelligently than the prime minister. Talk about what can really be done to rid the country’s courts, police stations and government offices of the overwhelming corruption and malpractice afflicting them today.
