JUSTICE SYSTEM IN MYANMAR
Legal system: mixed legal system of English common law (as introduced in codifications designed for colonial India) and customary law. Remnants of the British-era legal system are in place, but there is no guarantee of a fair public trial; the judiciary is not independent of the executive; the 2011 constitution calls for a Supreme Court, a Courts-Martial, and a Constitutional Tribunal of the Union. [Source: CIA World Factbook]
Myanmar still uses English legal systems. There are prosecutors and defense. Sometimes the judges, lawyers and witness can hardly be heard because of the clacking of typewriters. Judges wear black robes and bright yellow traditional headwraps. There are usually two of them and they have stern expressions. Defendants sit on plastic chairs behind a table. Defense lawyers make their case, Defendants answer questions directly from the judges. Myanmar has the death penalty but sentences are almost always commuted to life imprisonment.
The Myanmar judiciary is not independent of the military regime, which appoints justices to the supreme court. These justices then appoint lower court judges with the approval of the regime. Judicial mottos: 1 Adjudicate as to the laws; 2) Adjudicate fairly and speedily; 3) Act as to the procedure; 4) Maintain the integrity and reputation of the court.
The legal system of the Union of Myanmar is a unique combination of the customary law of the family, codified English common law and recent Myanmar legislation. The principles of English common and statutory law were implanted in Myanmar by the British law codes of the pre-independence India Statutes. These statutory laws, based on and incorporating the English common and statutory law of the time, include the Arbitration Act, Companies Act, Contract Act, Evidence Act, General Clauses Act, Negotiable Instrument Act, Registration Act, Sale of Goods Act, Transfer of Property Act, Trusts Act and the Civil and Criminal Procedure Codes. Where there is no statute regulating a particular matter the Courts are to apply Myanmar's general law, which is based on English common law as adopted and molded by Myanmar case law, and which embodies the rules of equity, justice and good conscience. Where there is no relevant statutory general law on point , the Myanmar Courts are obliged to decide the matter according to justice, equity and good conscience. [Source: Ministry of Justice, Japan moj.go.jp ]
Problems with the Myanmar Justice System
Decisions in Myanmar trials are believed to be to be preordained. David Mathieson, a Myanmar researcher with the activist group Human Rights Watch, told the Los Angeles Times The regime maintains the outward appearance of following laws, replete with formal charges, witnesses and legal representation, when in fact many verdicts are decided by a few powerful people. It is not unusual for people arrested in political charges to be sentenced to seven years in prison after a 15 minute trial. Many political prisoners are tried in the one-story- one room courthouse outside Insein Prison.
According to Countries and Their Cultures: “There is no provision for judicial determination of the legality of detention. Before being charged, detainees rarely have access to legal counsel or their families. Political detainees have no opportunity to obtain bail, and some are held incommunicado for long periods. After being charged, detainees rarely have counsel. [Source: Countries and Their Cultures everyculture.com ]
According to a Washington Post editorial: “The cruelest dictatorships, like the most ruthless criminal gangs, always have understood that the most effective way to deter opposition is to go after the innocent loved ones of potential enemies. Thus it was not enough for Gen. Than Shwe and his junta in Myanmar to sentence the Buddhist monk U Gambira to prison for 68 years last fall. It was learned last week that his brother, his brother-in-law and four cousins have been sentenced to five years in Burma's gloomy prisons. U Gambira, 28 at the time, was a leader of the nonviolent protests that broke out in Burma in September 2007. [Source: Washington Post editorial, March 15, 2009]
The 1975 state protection law allows authorities to detain anyone suspected of committing or planning to commit an act that threatens security. The law allows suspects to be detained for up to five years with no access to a lawyer or family for 180 days and no chance of appeal.
In the 2000s lawyers representing pro-democracy activists were jailed after being charged with contempt of court for submitting a letter that stated their clients “no longer have confidence in the court.” Human rights groups say that political activists have been denied lawyers, defense witnesses and visitors to their jail cell.
Crime in Myanmar
Myanmar has a relatively low crime rate and Burmese are generally a very law-abiding people. Violent crime is uncommon but petty crime occurs. There is some theft in the big cities. There is also some banditry, illegal drug activity and insurgent activity in some areas in the countryside. Foreigners are generally not victimized by violent crime. If they are and the criminals are caught they are dealt with harshly. Police and other authorities generally do not hassle foreigners to much or shake them down for bribes.
Not much is known about the crime situation in Myanmar in part because the government doesn’t release data on it. It seems, though, the crime rate is relatively low. You don’t hear much about foreigners being affected by crime and the punishments can be quite harsh. Female black market moneychangers used to work on the streets with bags full of money at night without worrying about being robbed.
Most of the crime you read about in press is related to drug smuggling and mob violence against minorities. There is also the arrest of political activists and protestors. However there are quite a few people in Myanmar’s prisons. Hundreds, even thousands, of prisoners when ever there is mass prison release.
See Illegal Drugs
Military Intelligence and Police in Myanmar
Some Burmese police have guns stuffed in their longyi (sarongs). When there is a threat of demonstrations police with assault rifles and machine guns and are deployed and main intersections and bridges and offices of Aung San Suu Kyi’s party.
Military intelligence is one of the most dominant organizations of its kind in the world. It has been greatly expanded. There are reportedly more than 27 military intelligence battalions. According to Countries and Their Cultures: “The regime reinforces its rule with a pervasive security apparatus led by a military intelligence organization known as the Directorate of Defense Services Intelligence (DDSI). The regime engages in surveillance of government employees and private citizens, harassment of political activists, intimidation, arrest, detention, and physical abuse. The movements and communications of citizens are monitored, homes are searched without warrants. [Source: Countries and Their Cultures everyculture.com ]
The vigilantes and thugs that are part of a pro-government “community groups” such as the Union Solidarity and Development Association played a big part under the military junta in enforcing their draconian policies. Thugs with these groups attacked Aung San Suu Kyi in 2003, when she was touring in the north of the country. The use of such tactics shows a lack of interest in democracy as well as a lack of self-confidence.
Burma Campaign UK reported:“The dictatorship began using members of the Union Solidarity and Development Association to harass and attack NLD meetings. This political militia was set up and organised by the military, with Than Shwe, dictator of Burma, as its President. It later transformed as the Union Solidarity and Development Party, the political party front for the military in the elections held on 7th November 2010. [Source: Burma Campaign UK |||]
After her release then, Aung San Suu Kyi was largely confined to her house. Her attempts to leave were thwarted in various ways. Once the train carriage she was traveling on was unhooked from the rest of train. On another occasion, her car was blocked and after she refused to get out. Some thugs then literally picked up the car and turned it around.
Government thugs are also believed to have been involved in attacks on Rohingya Muslim minority.
Government Thugs Attack Aung San Suu Kyi’s Convoy in 2003
Richard Paddock wrote in the Los Angeles Times, “In 2003, during a period of freedom, Suu Kyi traveled in northern Myanmar, where large numbers of people gathered to see her. Government-backed thugs armed with clubs and sharpened bamboo sticks attacked her motorcade outside the village of Dipeyin. Some believe the assault was an assassination attempt. Suu Kyi's bodyguards and supporters fended off the attackers and saved her by shielding her with their bodies. The government says four people died in the attack; the opposition says the toll may have reached 200.[Source: Richard Paddock, Los Angeles Times, June 18, 2005]
Burma Campaign UK reported:“On May 30th 2003 members of the USDA attacked a convoy of vehicles Aung San Suu Kyi was travelling in. It was an attempt by the dictatorship to assassinate Aung San Suu Kyi, using a civilian front so as not to take the blame. Aung San Suu Kyi’s driver managed to drive her to safety, but more than 70 of Aung San Suu Kyi’s supporters were beaten to death. The attack became known at the Depayin Massacre. The dictatorship claimed it was a riot between two political groups, incited by the NLD. The United Nations General Assembly called for the incident to be investigated, but it never was.” |||
In what is sometimes referred to as the "Black Friday," Aung San Suu Kyi’s convoy was attacked by thugs backed by the military regime near the town of Dipeyan in northern Myanmar, where she had been meeting with members of her party there and representatives of ethnic minorities. The government claims four people were killed and 50 were injured. The NLP said that at least 70 people were killed, perhaps scores, including five NLP members. Many were injured. People were beaten with bamboo sticks and rods and shot at with slingshots and perhaps firearms. More than a hundred were arrested.
According to government sources Aung San Suu Kyi was driving in a convoy of 15 cars and 100 motorbikes and the convoy was confronted by a mob of 5,000 people. They said a scuffle grew into a larger fight that lasted for about two hours and was finally put down by police. Aung San Suu Kyi told Razali Ismail, she heard a “commotion” from behind. “They tried to smash the windows of her car,” he said. “She was protected by her people.” The attackers threw stones at her four-wheel-drive vehicle which was able to speed off “ U.S. diplomats found bamboo staves and iron bars at the scene. A U.S. State Department report found that the attack was premeditated and the thugs that were involved had connections with the military regime.
For about three months Aung San Suu Kyi’s whereabouts was unknown. She was finally discovered at a Yangon hospital in September. There were rumors that Aung San Suu Kyi been seriously injured or even killed. As it turned out she was unhurt. U.N. envoy Razili Ismail met with her a couple of weeks and said: “I can assure you she is well and in good spirits...no injury on the face, no broken arm. No injury. No scratch. No nothings.” He said Suu Kyi’s car managed to speed off when the violence began. [Source: Richard Paddock, Los Angeles Times, June 18, 2005]
In April 2012, The Bangkok Post newspaper published a recording of a conversation with Myanmar intelligence chief Khin Nyunt. In it, according to The Irrawaddy, he claims to have personally intervened to save the life of Aung San Suu Kyi when a pro-junta mob attacked her motorcade in Sagaing Division in 2003, killing at least 70 of her supporters. “I sent my men to snatch her from the mob that night and they brought her to safety to a nearby army cantonment,” he was quoted as saying. Later, however, Khin Nyunt denied that he had made the claim and the Special Branch, a Burmese security unit, put out a statement that rejected The Bangkok Post article. [Source: The Irrawaddy, March 20, 2013]
Thugs Break Up Fuel Price Protests Before the Saffron Revolution Protests in 2007
A few days after the first high-fuel-cost protests began launched the Saffron revolution protests in 2007 Associated Press reported: “Myanmar's military government broke up a peaceful protest march for a second straight day, beating and arresting participants in an attempt to tame street rallies led by democracy activists against fuel price increases. Plainclothes officers and some civilian supporters of the junta stopped about 40 people marching quietly two miles toward their party headquarters in the capital. Authorities ordered bystanders, especially journalists, out of the area after a 30-minute standoff. Protesters sat on the pavement and formed a human chain, but about a dozen were dragged and shoved into trucks and buses, where some were slapped around, said witnesses, who asked not to be identified for fear of being called in by police. Reporters were also roughed up by security personnel, who shouted abusive language. [Source: AP, August 23, 2007 ++]
“The protest march was the third this week against the government's doubling of fuel prices last week in the impoverished country. Government supporters with sticks attacked some of the 300 protesters who marched the day before, seizing eight who were accused of being agitators. The eight were interrogated and released. A similar protest was held three days before. Most demonstrators in the most recent protest were from the party of opposition leader Aung San Suu Kyi. ++
Aung Hla Tun of Reuters wrote: “A tense stand-off ensued before the marchers, who had been walking towards the offices of the opposition National League for Democracy, were manhandled into trucks belonging to the junta's feared Union Solidarity and Development Association A Reuters reporter at the scene was told not to take photographs. For a second day, armed police and truckloads of USDA men armed with spades and brooms took up positions in the center of the former capital. However, in an apparent effort to stop to the widespread public anger at last week's shock fuel price rises, bus fares for the shortest journeys were halved. However, the junta's coordinated action, starting with midnight swoops on the student leaders, had probably ensured the series of small but persistent social protests did not snowball into something larger. "These people have vowed to continue the struggle at all costs. They have vowed to go all the way, and so for sure they will continue to protest," said Aung Naing Oo, a 1988 protester who fled to Thailand to escape the bloody military crackdown. "But I doubt a large majority of people will participate. Small gatherings of 100 here, 200 there, will go on but the emphasis is on the word small," he said. [Source: Aung Hla Tun, Reuters, August 23, 2007]
Two days later Associated Press reported: “Yangon was quiet with pro-junta supporters and plainclothes police deployed throughout the city to prevent further protests. Trucks stood ready to take demonstrators away. [Source: AP, August 25, 2007]
History of the Burmese-Myanmar Legal System
In olden days Dammathat - collections of customary traditions conventions and decisions of eminent judges and learned personal in their decisions or writings—were collected and consolidated into versions of Myanmar Customary Law throughout the ages. Dammathets are composed of legal rules and principle for civil matters and civil law; mainly related to matters such as marriage, divorce, partition, succession, inheritance and adoption. Legal rules and principles based on egalitarian rights relating to equality under law are still being applied by the present day courts of Myanmar. Phyahton — “The Judicial Decisions Passed by Courts, Benches and the King’s Hluttaw— are similar to the present day Law Reports (Rulings) of the Supreme Court. [Source: Ministry of Justice, Japan moj.go.jp ]
After becoming an independent State, the Supreme Court and High Court were established and Courts at different levels were also formed under the Union Judiciary Act, 1948. In March 1962, the Revolutionary Council took over the sovereign powers and the judicial system was transformed into socialist system. The Revolutionary Council abolished the Supreme Court and the High Court and established the Chief Court instead. Under the 1974 Constitution, the Central Court, the State and Divisional Courts, The Township Courts and the Wards and Village Tracts courts were formed. The salient feature of the then Judicial system was the participation of the working people in all level of courts.
In September, 1988 the State Law and Order Restoration Council promulgated the Judiciary Law, 1988 for the formation of the Courts at different levels and for the administration of Justice in the Union of Myanmar. It was subsequently repealed by the Judiciary Law, 2000 which was promulgated in June 2000 by the State Peace and Development Council, for the promotion of the Judiciary, and to revamp the formation of Courts. In October 2010, the Union Judiciary Law was enacted to adopt the present Judicial System under the 2008 Constitution of Myanmar
Judicial Principles and Different Courts in Myanmar
The administration of justice shall be based upon the following principles (Section 3 of the Judiciary 2010): (A) to administer justice independently according to law; (b) to dispense justice in open Court unless otherwise prohibited by law; (c) to obtain the right of defence and the ri ght of appeal in cases according to law; (d) to support in building of rule of law and regional peace and tranquility by protecting and safeguarding the interests of the people; (e) to educate the people to understand and abide by the law and nurture the habit of abiding by the law by the people. (f) to cause to compound and complete the cases within the framework of law for the settlement of cases among the public. (g) to aim at reforming moral character in meting out punishment to offenders. [Source: Ministry of Justice, Japan moj.go.jp ]
No penal law shall have retrospective effect. Any person who committed an offence shall be convicted only under the relevant existing law at the time of its commission. Moreover, he shall not be sentenced with a penalty more than that which is applicable under the said law. If a person is convicted or acquitted by a competent court for an offence, he shall not be retried for such offence unless a superior Court sets aside such convicting or acquitting judgment and passes order for retrial.
Under the Judiciary law, 2010 the following courts were established in the Union of Myanmar: 1) The Supreme Court of the Union of Myanmar; 2) The High Court of the Region or the State; 3) Court of Self-Administered Division; 4) Court of Self-Administered Zone; 5) District Courts; 6) Township Courts; 7) Other Courts established by Law The Supreme Court.
Supreme Court of Myanmar
The Supreme Court of the Union is the highest organ of the State Judiciary of the Union of Myanmar. The Supreme Court consists of team a minimum of 7 to a maximum of 11 judges, including the chief justice. The Supreme Court is the highest court of appeal. It exercises both appellate and revision powers. It also has original jurisdiction which enables it to hear cases as the court of first instance. It is the only court in Myanmar which can try maritime cases in its original jurisdiction [Source: Ministry of Justice, Japan moj.go.jp ]
Only the Supreme Court of the Union has original jurisdiction in the following matters- (a) Matters arising out of bilateral treaties concluded by the Union; (b)Other disputes between the Union Government and the Region or State Government except the Constitutional problems; (c)Other disputers among the Regions, among the State, between the Region and the State and between the Union Territory and the Region or the State except Constitutional problems; (d)piracy, offences committed at intern ational water or airspace, offences committed at ground or international water or airspace by violating the international law; (e)Cases prescribed under any law.
Subject to any provision of the Constitution or any other law, the Supreme Court of the Union, has the jurisdiction on: (a) The appeal against the judgment, decree or order passed by the Supreme Court of the Union by exercising its original jurisdiction. (b) The appeal against the judgment, decree or order passed by the High Court of the Region or the State (c) The appeal against the judgment, decree or order passed by other Court in accord with law. The Supreme Court of the Union has the jurisdiction on revision in accord with law against the judgment or order passed by a Court.
(1) District Judge Pecuniary Jurisdiction to try original civil suit for a maximum value of 500 million Kyats (2) Deputy District Judge Pecuniary Jurisdiction to try original civil suit for a maximum value of 100 million Kyats Jurisdiction The District Judges Self-Administered Division and Self Administered Zone are conferred with original criminal jurisdictional powers, criminal appellate and revision jurisdictional powers according to the Criminal Procedure Code. They also invested with original civil jurisdictional powers, civil appellate and revision jurisdictional powers according to the Civil Procedure Code. As courts of original jurisdiction they hear and deter mine serious criminal cases and civil cases.
Duties and Powers of the Supreme Court of Myanmar
The Supreme Court of the Union has the jurisdiction on confirming death sentence and appeal against the death sentence. It also (a) Has the Jurisdiction on a case transferred to it by its own decision. (b) Has the Jurisdiction for the transfer of a case from a Court to any other Court. The Supreme Court of the Union: (a) Has the power to issue the following writs: (i) Writ of Habeas Corpus: (ii) Writ of Mandamus; (iii) Writ of Prohibition (iv) Writ of Quo Warranto; (v) Writ of Certiorari; (b) At the time of the occurrence of the following situation, the right to claim the rights contained in section 377 of the Cons titution shall not be suspended unless it is required for public security: (i) in time of war; (ii) in time of foreign aggression; (iii) in time of insurrection. [Source: Ministry of Justice, Japan moj.go.jp ]
The Supreme Court of the Union is the superior court of record and has supervisory powers over all courts in the Union and its decisions are binding upon all courts. A case finally and conclusively adjudicated by the Supreme Court exercising its original jurisdiction, or a ca se finally and conclusively adjudicated by the Supreme Court on the final and conclusive decision of any court may, on being admitted for special appeal by the special Bench in accordance with the procedures, be heard and adjudicated again by the Special Appellate Bench. The Special Appellate Bench will consist of a total of 3 Justices including the Chief Justice. Only when substantial question are arisen will the Supreme Court interfere by way of appeal by special l eave in criminal and civil matters. The decision of the Special Appellate Branch is final and conclusive. The Supreme Court of the Union: (a) shall supervise all Courts in the Union; (b) may direct to adjudicate the important cases of the High Court of the Region or State, Courts of Self- Administered Division, Self - Administered Zone and District Courts by a bench consisting of more than one judge. The Supreme Court of the Union is entitled to submit the bills relating to the judiciary to the Pyidaunsu Hlutta w in accord with the stipulated manners.
The Chief Justice of the Supreme Court may, subject to such rules and restrictions as may be prescribed by the Pyidaungsu Hluttaw appoint so many and such clerks and other judicial officers as may be found necessary for the administration of justice and the due ex ecution of all the powers and authorities granted to the Supreme Court of the Union. Appointments of Supreme Court Staff.
Regional, Town and District Courts in Myanmar
The High Courts of the Region or the State are established under the Judiciary Law, 2010. Composition From a minimum of 3 to a maximum of 7 judges of the High Court of the Region or State including the Chief Justice of the High Court of the Region or State may be appointed in each High Court of the Region or State. The President shall, in co-ordination with the Chief Justice of the Union, relevant Chief Minister of the Region or State, appoint a person who fulfils the qualification under section 310 of the Constitution and section 48 of this Law as the Chief Justice of the relevant Region or St ate, with the approval of the Region or State Hluttaw. The President shall appoint the persons in respect of whom the Chief Minister of the Region or State co-ordinates with the Chief Justice of the Union, and who fulfill the qualifications under section 310 of the Constitution and section 48 of this Law as the Judges of the High Court of the Region or State with the approval of the Region or State Hluttaw. [Source: Ministry of Justice, Japan moj.go.jp ]
The High Courts of the Region or State have the following jurisdictions in accord with law: (a) adjudicating on the original case; (b) adjudicating on the appeal case; (c) adjudicating on the revision case; (d) adjudicating on the cases prescribe by any law. The High Court of the Region or State has the jurisdiction: (a) to adjudicated on a case transferred to it by its own decision within its jurisdiction of the Region or State; (b) to adjudicate on transfer of a case from any court to any other court within its jurisdiction of the Region or State. The High Court of the Region or State may, in exercising its jurisdiction, adjudicate on cases by a judge or a bench consisting of more than one judge as determined by the Chief Justice of the Region or State.
The District courts of Self-Adminis tered Division and Self Administered Zone were established under the Judiciary Law, 2010. In every District Court, a District Judge is appointed by the Supreme Court. Judges may also be appointed by the Supreme Court of the Union depending on the volume of work. Those Judges are conferred with judicial powers by the Supreme Court of the Union in accordance with the provisions of the Criminal Procedure Code and Civil Procedure Code. District judges have pecuniary jurisdiction to try original civil suit for a maximum value of 500 million kyats Deputy have District judges pecuniary jurisdiction to try original civil suit for a maximum value of 100 million Kyats
The Township courts were established under the Judiciary Law, 2010. In every Township court a Township Judge is appointed by the Supreme Court of the Union. Additional Township Judges or Deputy Judges may also be appointed by the Supreme Court depending on the volume of work. Those Judges are conferred with judicial powers by the Supreme Court in accordance with the provisions of the Criminal Procedure Code and Civil Procedure Code. A Township Judge is the officer in charge of court administration matters. He or she also has the power to distribute all cases received in the Township court to other judges of Township courts. But every judge has independent jurisdiction over cases assigned to him or her.
Township courts are mainly courts of original jurisdiction. The judges appointed to a Township court are Township Judges, additional Township Judges and Deputy Township Judges. Township Judges by virtue of their posts are specially empowered as Magistrates who can pass sentences of up to seven years imprisonment where as an Additional Townsh ip Judge, if he or she is especially empowered with such special magisterial powers, may award sentences not exceeding seven years. The remaining Deputy Township Judges can impose sentences according to their magisterial powers. Some of the civil cases in which the amount in dispute or value of the subject matters is not exceeding 10million kya ts are adjudicated in Township courts. They also exercise Juvenile Jurisdiction specially conferred under 1993 Child Law. (1)Township Judge Pecuniary Jurisdiction to try original civil suit for a maximum value of ten million Kyats. (2)Additional Township Judge Pecuniary Jurisdiction to try original Civil suit for a maximum value of seven million Kyats. (3)Deputy Township JudgePecuniary Jurisdiction to try original civil suit for a maximum value of three million Kyats.
Municipal Courts and Juvenile Courts in Myanmar
Juvenile Courts: The Child Law, 1993 was adopted to implement the rights of the child envisaged in the United Nations Convention on the Rights of the Child. In the administration of Justice in the Union of Myanmar a juvenile offender is usually tried summarily by a competent court irrespect ive of the severity of the offence. In ordinary circumstances the legislature intended the juvenile offender to be punished as leniently as possible so that he or she may be able to enter the mainstream of life with a clear conscience, confident, efficient. To achieve that spirit, juvenile offenders cannot be sentenced to death or transportation for life, or whipping. In accord with the Child Law, Township courts are conferred with powers to try juvenile offences. A separate Juvenile court (Yangon) has been constituted to try juvenile cases occurring at 20 townships in Yangon City Development Area. A separate Juvenile court (Mandalay) has been constituted to try juvenile cases occurring at 5 townships in Mandalay City Development Area. Apart from that, Juvenile court has been established separately township within the Court House. [Source: Ministry of Justice, Japan moj.go.jp ]
Municipal Courts; Seven separate courts have been opened in Yangon after consultation with the Yangon City Development Committee to try municipal offences. Such offences include; violating provisions of the City of Yangon Municipal Act, Rules, By-Law, Orders and Directions still in force and those under the Yangon City Development Law enacted by the State Law and Order Restoration Council, 4 separate courts have also been established in Mandalay after consultation with the Mandalay City Development Committee, to try municipal offences.
Try Traffic Offences Courts: In order to try offenders violating vehicle rules and road discipline, seven separated courts in Yangon City Development area and two separated courts in Mandalay City Development area, exclusively for that purpose have been constituted in consultation with the Traffic Rules Enforcement Supervision Commit.
Lawyers in Myanmar
There are two classes of lawyers in Myanmar: Advocates and Higher Grade Pleaders. Advocates are authorized to practise in all courts including the Supreme Court. Higher Grade Pleaders are licensed to practices in subordinate courts only, i.e. State and Divisional courts, District courts, and Township courts. Both classes of lawyers are also allowed to practise in all Revenue Tribunal, subordinate to the Ministry of Finance and Revenue and other separate courts. [Source: Ministry of Justice, Japan moj.go.jp ]
In early 1997 there were approximately 6,400 locally qualified legal practitioners in Myanmar and only a few resident foreign –qualified lawyers. The activities of legal practitioners (both advocates and pleaders) in Myanmar are governed by the legal Practitioners Act 1879 and the Bar Council Act 1926. The Legal Practitioners Act is mainly concerned with the entry qualifications, practice and discipline of pleaders, whereas the Bar Council Act creates the Bar Council (run along similar lines to Bar Council Act creates The Bar Council region), determines the necessary qualifications of persons wishing to practice as advocates and is responsible for the conduct of advocates.
The minimum educational requirement to become an advocate is a Bachelor of Laws degree (L.L.B), a post graduate Bachelor of Law degree (B.L) or a post graduate Registered Lawyer certificate (R.L) and three years practice as a pleader. In order to become a pleader (without the right to become an advocate), one must pass the Higher Grade Pleader's examination. To become a judicial officer or judge it is necessary to have completed the requirements for admission as an advocate and to pass a special examination held by the Public Service Commission. A legal practitioner may, by private agreement, settle the terms of his/ her engagement and the fee to be paid for his/ her professional services, and may institute and maintain legal proceeding to recover any fee due to him/her. Legal practitioners are not exempt from liability in respect any fee loss or injury due to any negligence in the conduct of his/ her professional duties and may be sued in respect of such.
Legal Reforms in Myanmar
According to U.S. State Department: An important element of strong, democratic societies is adherence to the rule of law, which in turn depends on a strong constitution that has broad public support. Civil society actors, ethnic nationality representatives, and international human rights experts alike have repeatedly called for changes to Burma's 2008 Constitution so the document may better reflect the country’s new democratic aspirations. The Constitution is the foundational document of any society — in the run up to the 2015 national elections there is an opportunity for the people and government to debate and decide how best to address these issues. [Source: U.S. State Department, Human Rights in Burma, February 18, 2013 ]
Revision and repeal of flawed laws and regulations is another key area to which the government – both executive and legislative branches – should pay attention in the coming years. In the last two years the parliament has drafted, and the executive has signed, a series of new laws that constitute the first important phase of legal reform. During this period the government has passed laws criminalizing forced labor, legalizing labor unions, and allowing the opposition to run in the April by-elections. However, a number of other laws remain in place, many are hold-overs from the colonial administration that are inconsistent with international human rights standards. The government has begun to review and revise these laws, for example by repealing two problematic laws last month, one banning public gatherings of more than five people and another banning daily newspapers.
Broadly speaking, these remaining laws fall into three categories: 1) media and “electronics” laws that restrict freedom of expression and the press; 2) laws that are inconsistent with the freedom of association by restricting membership in associations of which the government does not approve; and 3) vaguely defined national security laws that give the government overly broad authority to arbitrarily arrest citizens. While the government has mostly ceased enforcing these laws, reforming outdated legal statutes should be a high priority for the parliament and the executive.
For example, the 2011 Law on Peaceful Assembly and Procession legalized protests for the first time in 20 years – a major step forward for freedom of association. However, the new law also contains provisions that have proved problematic, for example, the requirement to apply five days in advance with detailed information about a planned protest or demonstration. According to the law, the right to protest will be denied if “the security of the State, rule of law, public tranquility and the existing laws protecting the public are to be breached.” Any protest for which permission is denied is deemed illegal under the law, and anyone taking part can be arrested and sentenced for up to a year in prison. Dozens of protesters have been arrested, and many have been charged and are awaiting trial for violations of this law since its adoption in 2011.
We met a Kachin activist on our recent visit who faced charges that could land him in prison for six years under the Law on Peaceful Assembly and Procession for joining a peace walk through Rangoon calling for peace in Kachin State. He received one count worth one year for each of the six townships through which he walked. Independence of the judiciary also is critical to advancing reforms. There is no independent bar association, and we are told that there is not one lawyer on Burma’s Supreme Court. The justice system also lacks a number of basic elements of due process. For example, defendants are not guaranteed the right to a state-appointed attorney except in capital (death penalty) cases. Improvements need to be made in the quality of legal education, training of legal professionals and investigators, accessibility of laws and of electronic and forensic evidence. We stand ready to assist in these areas.
The government has taken several promising steps in recent months. Dozens of lawyers who were previously disbarred for taking politically sensitive cases have had their licenses restored; government officials have stated that those still without licenses will be able to seek reinstatement. We understand also that there are plans underway to create an independent bar association. In addition, efforts are underway to train prosecutors and other government legal staff on international standards and the rule of law. Going forward, as long as we see signs of genuine political will to make these and related reforms, we stand ready to provide technical assistance and support. The Office of the High Commissioner for Human Rights can also, among other functions, provide key technical assistance and training to the government and civil society actors to support the rule of law and legal reform.
At our October 2012 bilateral Human Rights Dialogue in Naypyitaw senior government representatives were open and candid in their assessment of the challenges in the legal system and in expressing their intention to undertake wide legal reform. We also urged the government to take steps to sign and ratify key human rights treaties, including the International Covenant on Civil and Political Rights and the Convention Against Torture. We raised our concerns about legal and other restrictions on religious freedom and our desire to collaborate to address them. We look forward to working with the government and with civil society to lend support and technical expertise in this important process.
Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, The Irrawaddy, Myanmar Travel Information Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Global Viewpoint (Christian Science Monitor), Foreign Policy, burmalibrary.org, burmanet.org, Wikipedia, BBC, CNN, NBC News, Fox News and various books and other publications.
Last updated May 2014