BURMA: The 1974 Constitution and challenge for Burma’s courts

May 12, 2006

A Statement by the Asian Human Rights Commission

BURMA: The 1974 Constitution and challenge for Burma’s courts

U Tin Nyein is among the latest victims of Burma’s courts of injustice. On March 29, the 49-year-old farmer was jailed for two years because he complained that his crops were destroyed after embankments on a stream were demolished by government workers. After complaining, he was sued for spreading “false information”. In a carefully-worded petition to a higher court, Tin Nyein pointed out that the case against him was procedurally flawed and should never have been taken up by the township court in the first place. The higher court agreed with his argument, and instructed that he instead be prosecuted under a suitable provision. The authorities then submitted a new case, accusing him of attempting to breach the peace by making his complaint. This time he was convicted. 

While it is widely accepted that Burma’s courts are subject to the dictates of its armed forces in cases freighted with political importance, what has not yet been studied properly is the extent of their compliance in virtually all cases where a private citizen stands against a state agent, of whatever rank, in whatever matter, and the consequences of this. Tin Nyein was first sued by a lowly member of the local waterworks team. When his case failed, it was taken up by the neighbourhood police chief. In the same township, in December 2005 U Aye Win and U Win Nyunt were jailed for reporting extortion by junior administrators. Although the local authorities disciplined the accused, a higher office ordered that the villagers be prosected, again for giving false information. Last August, U Aung Pe was handed three years jail by a court ostensibly for giving “illegal tuition”, due to grudges held against him by local officials. His subsequent appeals have been thrown out without hearing. All of these cases, among many others, speak to the disgraceful condition of Burma’s judiciary. 

The effective and independent functioning of Burma’s courts has been steadily eroded for decades. The assumption of power by General Ne Win in 1962 inevitably ended the possibility of the courts operating impartially. In 1974 they were dealt a death blow, when the new constitution literally merged the country’s judicial and legislative arms. Under its article 95, the senior-most judges were chosen from among the members of parliament. They in turn appointed other judges down through the hierarchy: most were handpicked from the socialist party. The first and foremost principle upon which they worked was “to protect and safeguard the Socialist system”. Their powers and duties were dictated by the government, and at each level they were answerable to local councils, just as the entire system was ultimately answerable to the executive, itself answerable to Ne Win.  

The regime that brought in the 1974 constitution–together with the constitution itself–is long gone, but its mutilated legal system remains. In fact, Burma’s judiciary is today a far more degraded creature than it was a decade or two ago. Like other state agencies, the courts and law offices are staffed by persons who at best are untalented and disinterested, and at worst incompetent and ignorant. Constant meddling and interference from authorities, coupled with rampant corruption, have ruined judicial institutions and personnel. To win a private dispute is a matter of paying enough money. To win a dispute with the state is all but impossible. 

However, the government of Burma seeks to maintain the pretence of legality, which can mislead observers into thinking that a partly-functioning system still exists. Detained political opponents and parties have cases constructed against them. Bizarre stories of complicated conspiracies are told in press conferences to incredulous but obliging journalists as a means to justify their detention. 

In a recent speech, a retired UK lord of appeal, Lord Steyn, offered pertinent examples of how authoritarian governments consistently seek to maintain a veneer of legality:

“In Nazi Germany defendants sentenced to periods of imprisonment before the Second World War were left alone during the terms of their sentences. Only when their sentences expired did the Gestapo wait for them at the gates of the prisons and transport them to the death camps. So even in Nazi Germany an impoverished concept of legality played some role…
“In the apartheid era millions of black people in South Africa were subjected to institutionalised tyranny and cruelty in the richest and most developed country in Africa. What is not always sufficiently appreciated is that by and large the Nationalist Government achieved its oppressive purposes by a scrupulous observance of legality. If the judges applied the oppressive laws, the Nationalist Government attained all it set out to do.  That is, however, not the whole picture.  In the 1980s during successive emergencies, under Chief Justice Rabie, almost every case before the highest court was heard by a so called ’emergency team’ which in the result decided nearly every case in favour of the government. Safe hands were the motto. In the result the highest court determinedly recast South African jurisprudence so as to grant the greatest possible latitude to the executive to act outside conventional legal controls.

“Another example is Chile. Following the coup d’etat in September 1973, thousands were arrested, tortured and murdered on the orders of General Pinochet. The civilised and constitutionally based legal system of that country had not been formally altered. It was not necessary to do so. The police state created by General Pinochet intimidated and compromised the judiciary and deprived citizens and residents of all meaningful redress to law…

“Here I pause to summarise why I regard these examples of some of the great tyrannies of the twentieth century as containing important lessons. They demonstrate that majority rule by itself, and legality on its own, are insufficient to guarantee a civil and just society. Even totalitarian states mostly act according to the laws of their countries. They demonstrate the dangers of uncontrolled executive power. They also show how it is impossible to maintain true judicial independence in the contaminated moral environment of an authoritarian state.” 

Steyn’s insightful comments are equally applicable to Burma, as they are to Cambodia, Singapore and other jurisdictions in Asia. In each of these too, safe hands is the motto. And the demoralising effect on society of courts willing to do the bidding of these authoritarian governments is far worse than that caused by other institutions. The police or military may breed resentment and spread fear when they assault an innocent person, but it comes as little surprise that police and soldiers are violent. The courts and related institutions exist to monitor and punish their excesses and abuses. They are essential weapons in the struggle against brutality and oppression. If the courts instead serve as tools for the agents of brutality and oppression, then this has a terrible draining effect on national spirit. Over a prolonged period–in Burma’s case, some four decades–the effects may be all but irreversible. They feed into and deepen the contaminated environment to which Steyn rightly refers. 

The government in Burma routinely iterates its intentions to build a modern and developed state, but without functioning courts where persons with legitimate grievances can bring complaints, this is an absurd notion. It is a commercial impossibility, as investors will not commit to a place where the courts are the playthings of executive councils, which are in turn the playthings of military officers. It is also, most importantly, a psychological impossibility, as the lack of positive thinking among people in Burma is directly linked to its debased courts. If a farmer cannot make a complaint that his crops are awash because of incompetent local officials without risking jail, irrespective of other factors, how can any progress be expected? Who will wish to repeat his experiences? Where else can they turn? What else can be done? When even natural disasters–such as the cyclone that ripped through the country’s central coastline at the end of April–can be denied or diminished, how can a society properly address anything other than the most trivial and juvenile concerns? How can its courts do any more?

Burma’s judges are as culpable as its generals for the demoralised state of the country today. But while no one looks to the latter for relief, even in their perverted and reduced form, the former are still sought out by persons with some hope for redress. Rarely do they give any cause for hope. Yet rarely too are they the subject of sustained criticism or sanction by persons and institutions concerned with human rights in Burma. 

The Asian Human Rights Commission calls upon all interested persons, international organisations, embassies and rights and law groups everywhere to examine in detail and discuss how Burma’s judiciary is contributing to the country’s current plight. Much more must be understood about its damaging role in order to address the military stranglehold on the country. It urges judges in Burma who are troubled by their work and the poisoned institutions to which they are confined to study their role in prolonging the abject misery of their people. It calls for them to study vigorously discuss the law, and seek ways to become more assertive without risking their careers or lives. It lauds those lawyers who are still bravely taking cases to the courts against the authorities, and hopes that they will strengthen and redouble their determination. And it expresses the strongest moral, emotional and intellectual support for those ordinary persons, like U Tin Nyein, who are struggling through and against this system of injustice for their right to be heard. They can be assured that although their courts are not yet listening, others are, and the struggle is not in vain. It is a struggle that is slowly but surely contributing to the decontamination of their society, and a struggle to which others must pay heed and lend support.   

Document Type : Statement
Document ID : AS-107-2006
Countries : Burma (Myanmar),
Issues : Judicial system, Rule of law,