Rule of law, equality before the law and the right to fair trial

Twenty-five civil society organisations have outlined some of the most pressing reforms necessary to protect human rights and democracy in Myanmar. An [online platform](https://campaignpromise.info) will be launched on 9th October 2020, where election candidates from all parties will be able to sign up to these pledges and commit to taking action in the Hluttaw or in government, if elected. Members of the public will be able to see which candidates support the various legislative or policy reforms, helping to inform their choice at the ballot box. After the election, the platform will be used to monitor progress with reforms. To mark the launch of the platform we will be publishing a series of articles on the pledges between now and the elections on 8th November.

Myanmar, by signing the Universal Declaration on Human Rights (UDHR), has indicated to the world that as a nation, we are committed to the rule of law. Articles 6 to 11 enshrine ‘rule of law’, and include the principles of equality before the law, including protection against discrimination; equality for fair public hearings by impartial and independent tribunals; and the right to be presumed innocent until proved guilty.

Rule of law in Myanmar remains elusive. From the top down, the court system is not independent but under the control and influence of both civilian and military state authorities. The weakness and lack of independence of the judiciary, and subsequent lack of access to impartial justice, fundamentally underpins many of Myanmar’s contemporary development challenges.

In the absence of a strong independent court system, access to justice often depends on the ability of defendants to pay bribes; on the extent to which other branches of government wish to see a conviction and their undue influence on the process; and often on popular opinion. Frequently, therefore, those most marginalised in wider society are those with least access to impartial and fair treatment in the courts. The poor, women, ethnic minorities and LGBTQIA people are particularly vulnerable to mistreatment. People are regularly jailed for years before their case even comes to trial, often in cases that would be clearly bailable in any other jurisdiction. This undermines the presumption of innocence until proven guilty. The courts themselves are largely closed off from the public. Defendants can rarely afford or access defence lawyers to argue their case.

The government is largely above the law in Myanmar. Unless there is political motivation, government or military officials will rarely be subject to prosecution. Human rights violations committed by security forces are not brought to justice, and if they are defendants are tried in secret military courts that do not reveal the outcome, denying justice to the victims.

The judiciary’s lack of independence is maintained by the Constitution under Article 299, which gives the President sole power of appointment to the position of Chief Justice. In essence this means the loyalty of the Supreme Court is to the executive. In other and more established democracies, the highest court tends to be appointed by a mix of government representatives, elected MPs and existing judges, often through a judicial council or appointments committee. At lower levels, courts are heavily influenced by the police and General Administration Department and may even act as subordinate to them, rather than as independent arbiters of justice. In true federal government systems, the judicial branch of government has been devolved to the regional/state level, however in Myanmar the courts are a centralised hierarchy.

Article 19(b) of the Constitution requires that justice be dispensed in open courts. In reality, courts rarely publish information about when cases are will take place, and may not display notices stating that the court is open to the public. Court judgements are generally not published. Corruption is rife throughout the court system – being granted bail, or escaping a fine or a jail sentence, may often depend simply on whether the defendant can afford to pay off the judge or the law officer.

There is a lack of consistency in the way the law is applied in comparable cases across the country. Judgements reached on verdicts and in sentencing often appear inconsistent and arbitrary. Overbroad provisions in the law may be used by prosecutors and the court to determine guilt – eg in defamation cases – and judgements appear not to refer to previous case-law, as should be the case in a common law system.

Many regulatory functions of the government are carried out by government committees. There are many examples of decisions, large and small, that different government entities take every day. Sometimes, procedure is not followed, and decisions are taken that do not follow the guidance. In these cases, the courts should be available to private citizens to seek judicial review of decisions – with the result that decisions may be reversed and/or compensation provided to those disadvantaged. However, many laws deny the right of judicial review of government decision-making.

In order to establish equal rights before the law in Myanmar, the pledge platform launched on 9th October will invite prospective Hluttaw candidates to agree with or commit to the following statements:

• The judiciary should be an equal branch of government alongside the executive and the legislature, and appointments to the Supreme Court should not be under the sole purview of the executive.
• The Armed Forces Act 1959 should be amended to allow criminal cases between civilians and armed security personnel (police, soldiers) to be heard in civilian courts.
• Customary laws will be recognised and fully respected as having equal weight in the legal system where relevant, in particular in respect of land laws.
• Decisions made by all levels of court and schedules of hearings will be made publication in notices at the courts, and online. This is not only because justice must be done in public, but also because an open record of cases is essential for common law systems where reference to past cases is an integral part of making judgements.
• The Hluttaw and the Anti-Corruption Commission will establish an in-depth joint inquiry, including an open public consultation, into corruption in the justice system.
• Adequate resources and procedures will be made available to courts for administrative tasks, to ensure more efficient case management.
• Defendants will not be detained for long periods before trial unless there are clear reasons for doing so.
• In the case of prosecution. It will be made to ensure compliance with the rules and regulations of the court and impartiality.
• Independent administrative tribunals must be established to enable people to appeal unfair or incorrect decisions by government bodies or committees.
• Disciplinary or legal action should be taken against police who detain suspects for over 24 hours without the permission of a judge.
• Government should end the use of hard labour as a punishment for crimes.
• The concepts of the justice system will be reviewed to bring it in line with the modern system.