Posted in Legislative Analysis, Political Institutions on Dec 05, 2019

On 19th of November 2019, the Union Attorney General’s Office (UAGO) issued Prosecution and Prosecutor Directive No. 1/2019. The Directive instructs law officers that the Law Protecting the Privacy and Security of Citizens (Privacy Law) is not applicable to cases between citizens, but only those concerning the Ministry of Home Affairs (MoHA), relevant government departments, organisations and administrative officers.

According to Athan Myanmar – Freedom of Expression, by 7th November 2019 there had been 45 cases, and 132 individuals prosecuted, under the Privacy Law since it was enacted in 2017. Most of the cases are citizens taking legal action against one another, for example on grounds of defamation, and may not represent legitimate complaints about invasions of privacy. Therefore, the objectives of the law undoubtedly needed clarifying, and the directive issued by the UAGO may be welcomed.

However, whether the issuance of such a Directive is in line with correct procedure, under the concept of separation of powers, is open to question. In this article we examine this question.

Check and Balance

In a democratic system, it is essential to maintain the independence of three branches of government – the executive, legislature and judiciary – such that they allow for mutual checks and balances. Such mechanisms must be guaranteed, especially in a nascent democracy where the risks of any one branch over-riding another may be greater. If the separation of powers is not clear, power struggles can occur that undermine democracy itself.

If the executive overrules the legislature, laws may be prioritised that serve the interests of the former in maintaining power (to limit criticism of the government, for example), over laws that prioritise protecting citizens’ constitutional and democratic rights (such as all peoples’ right to privacy). Similarly, if the judiciary is routinely overruled, judgments may not be based on universal principles of impartial justice but instead used as a tool to achieve other objectives by the other two branches. Thus, to help a democracy thrive, the three branches must be separated, and checks and balances must be in place.

2008 Constitution and Relevant Laws

As for the separation of powers, Article 11 (a) of the Constitution says “The three branches of sovereign power namely, legislative power, executive power and judicial power are separated, to the extent possible, and exert reciprocal control, check and balance among themselves”. And Article 19 (a) includes “to administer justice independently according to law” as one of the principles for the judiciary.

The Union Attorney General Law 2010 determines the duties of UAG as ‘performing duties as part of the Union Government, tendering legal advice upon the request of government bodies, prosecuting criminal cases on behalf of the government, guiding and supervising the law officers of the UAGO and various levels of the Law Office, and carrying out other duties assigned by the Union Government’. The UAGO is clearly established as part of the executive branch.

The Union Supreme Court is the country’s highest ‘ordinary’ court (the Constitutional Tribunal and Courts Martial are separately constituted) and sits atop a subordinate hierarchy of state/region, district and township courts, together forming the judicial branch of government. The website of the Supreme Court describes its role as being “to support in building of rule of law and regional peace and tranquility by protecting and safeguarding the interests of the people”.

Prosecution and Prosecutor Directive 1/2019

The Privacy law prohibits searches of people’s homes, arrests, following, covert listening, gaining telecommunications data, controlling correspondence, intervening in personal affairs and seizing property by “anyone without permit, permission or warrant by the existing law or permit by the President or Union Government”. However, the term ‘anyone’ is vague. Directive 1/2019 provides an interpretation of ‘anyone’ to mean “MoHA, relevant government departments, organisations and administrative officers”.

The Directive is presumably issued in accordance with Article 41 (b) of the Union Attorney General Law, which allows the UAG to issue instructions to law officers. But closer scrutiny reveals that as well as being an instruction to law officers, the Directive is clearly an interpretation of the law by the UAGO, part of the executive branch. Here, the question we are interested in, is whether the UAGO, part of the Union Government, is overriding the powers of the judiciary.

Distinction of the Privacy Law

Unlike the other laws, the Privacy Law possesses two distinctions. One is the absence of objectives in the introduction to the law. However, when the Pyithu Hluttaw Bill Committee submitted its report to the Hluttaw for discussion, the report explained that the bill was drafted to promote democracy in the country, protect privacy and security, and ensure rule of law and safety by protecting security of citizens’ homes, property, correspondence and telecommunications. These objectives did not, however, find their way into the final draft.

The second distinction is that the bill, as originally introduced, contained a provision giving MoHA the role of issuing ‘by-laws, rules and regulations, announcements, procedures, orders and directives’, but this was subsequently removed. So the law does not establish that any executive government body has the power to issue such regulations.

Both of the above raise questions of whether the Privacy Law possesses all the required characteristics of legislation, and whether the power to issue directives should be given to a specific executive body.

Remedy for the Public’s grievance

When considering the intended objectives of this law, as set out by in the Bill Committee’s report, it is clear the law has been abused in some cases for vexatious complaints between citizens. As remedial action to prevent these issues, the Directive of the UAGO should be welcomed. However, in terms of appropriate separations of power, the fact that one branch is overruling another is worrying, and risks setting a problematic precedent.

The directive is in effect providing a legal interpretation, which is a function of the judiciary in a democracy and contrary to the Articles of the Constitution establishing three independent branches. It implies a direct interference into the judiciary by the executive.

In a common law system, interpretations of the law are a judicial responsibility and occur in the courts. Judges interpret the law to decide on individual cases, building up a body of case law that is applicable to all subsequent cases. If in this way, Union Supreme Court and its subordinate courts can apply the rule of law equitably for all people.

However, given the problems noted above in the drafting of the bill, such as the lack of clear objectives, it is difficult to imagine how the law could ever have been satisfactorily interpreted and applied in the courts. In this instance, the law must surely go back to the legislature, and repeal or amendment of the law properly considered by lawmakers.

By Moe Aung and Paul Taylor