Posted in Legislative Research on May 28, 2019

Aiming to further improve the impartiality and independence of the Judiciary in Myanmar, the Union Judiciary Law had been frequently amended by the Hluttaw: in 2013, 2014 and 2015. A further fourth Amendment Bill has now been introduced in 2019.

Defining the judiciary

In a practicing democracy, there must be a system of checks-and-balances between the executive, legislature and judiciary, to ensure government is administered fairly and efficiently and to prevent violations of people’s rights, which are often an inevitable side-effect when one branch of government has more power than the others.

Rule of law is essential in a democratic system and the impartiality of the judiciary, a critical pillar of government for upholding the rule of law, is imperative. The judiciary has three main functions – applying the law, interpreting the law, and judging cases based on the justice, equality and the common sense in the absence of existing law. Its effectiveness can be measured in the fulfillment of these functions.

Tracing Myanmar’s judiciary

In looking at Myanmar’s judiciary following independence, we can see how the judiciary has been changed and adapted in response to each different political era. Myanmar started practicing a system of common law based on the British system with the Union Judiciary Act of 1948, and in 1974, a judicial court and judges’ committee emerged with the People’s Judges Law.

This was then replaced in 1988 with the Judiciary Law which describes the Supreme Court as composed of a Chief Justice and no more than 5 judges. However, there were no provisions for required qualifications of judges, the appointment procedure, nor their length of tenure, and the jurisdiction of the Supreme Court was drawn extremely broadly. The Judiciary Law of 2000 amended the Supreme Court to be formed by a Chief Justice, 3 Vice Chief Justices and between 7 and 12 judges. This law also introduced the possibility of examination of judgments of the Supreme Court through a ‘Special Appeal Court’. Courts were also established at the district level.

In 2010 the Union Judiciary Law was passed, intended as a transitional measure. The law specified a Union Supreme Court, High Court in the Regions and States, District Courts, Township Courts and other courts established by law, including in Self-administered areas.

This Law was is more precise with the number of, appointment procedure, and length of tenure for judges, specified in both the Union Supreme Court and the High Courts of the Region or the State. In addition, provisions for disqualification of judges are included.

Current situation of the judiciary

Although the budget of the judiciary has increased annually, it is less than 1% of government’s budget. The Union Supreme Court is guided by its Judicial Strategic Plan (2015-2017), updated in the Judicial Strategic Plan (2018-2022). The Judicial Strategic Plan (2015-2017) set 5 strategic action areas for fulfilling judicial objectives, one of them being to speed up judgment of cases. For this, strict policies were exercised not to overload the judicial procedures and avoid postponement of cases without reason. The Judicial Strategic Plan (2018-2022) also describes 5 strategic action areas, among them to ensure public access to court services (information held by the courts and legal aid) and promoting public awareness. A legal support team has been formed under the law to assist in the delivery of these objectives.

When studying the courts’ annual clearance rate (the extent to which a court is keeping up to date with its current caseload) published by the Union Supreme Court, an improvement can be seen, and a decline in the duration of legal proceedings for criminal and civil cases can also be found. However, public trust in the judiciary is declining, and the Anti-Corruption Commission’s report to the 11th session of the Pyidaungsu Hluttaw highlighted increasing corruption in the judiciary.

For the judiciary to achieve impartiality and independence, there are many proposals, from increasing the salary or benefits for judges, forming a judicial monitoring team by the related Hluttaws, establishing the Ministry of Justice, and amending the Union Judiciary Law. The fourth Bill amending the Union Judiciary Law will be analysed here.

Examination of the Section 23c(ii) of the Amendment Bill

Section 23c(i) of the Amendment Bill says judges must take an oath or affirmation, arranged by the Union Supreme Court, and Section 23c(ii) says they must also take an oath in their daily court.

In Myanmar, there was an Indian Oaths Act 1873 about taking the oath or affirmation. After independence, the aforementioned act was reaffirmed with the Oaths Act, Section 5 of which specifies those who must take an oath or affirmation. According to the Act, those who must take the oath or affirmation are the witnesses, interpreters and jurors.

However, the Section continues with the exception that interpreters appointed by the courts do not need to take an oath.

Under this law, judges are not required to take an oath or affirmation, and government servants do not need to take another oath or affirmation beyond that taken when they enter the office. So Section 23c(ii) of the fourth bill amending the Union judiciary law is contradictory with those two points found in the Oaths Act.

But there are also two more important questions to be asked about the Section 23c(ii) of the Amendment Bill: whether taking an oath or affirmation is an effective means for enhancing the righteousness of the judiciary, and whether such an amendment implies the legislature is in this case, over-riding the judiciary.

Taking such a regular oath or affirmation in daily court could demean the significance of the act. In addition, is this really a practical use of judges’ valuable time during their busy day – especially given the pressures they are under to determine cases more quickly?

The real need is a provision in law for holding to account those who break their oath or affirmation to uphold the sanctity of their office. A daily affirmation could be seen as little more than a publicity stunt. For example, there should be a specific review of the process for change of judgment on appeal, in order to make lower courts accountable, with regular reviews of how effective the lower courts are.

Section 193 of the Penal Code specifies penalties for witnesses who lie, but unlike a witness, judges have no accountability or responsibility. Making judges accountable and responsible is the only way to improve the performance and independence of the judiciary.

What should be considered next is how to link the Judicial Strategic Plan and the Bill to accomplish the judicial objectives. Any contradiction between the law and the statement of government policy in the Strategic Plan, could create conflict and frustrate the implementation of much needed reforms. If the strategic plan is good and properly resourced, it should be implemented successfully and amended as necessary. Laws and By-laws should be passed insofar as they support the strategic plan.

Forcing judges to take an oath or affirmation on a daily basis implies the judiciary is being directed in its business by the legislature in this case, and suggests an imbalance between the branches of government.

In the democratic system neither the legislature, the executive, nor the judiciary should override each other in this way. As the judiciary attempts to reform its operations, they should be supported and consulted in the law-making process. Therefore, Section 23c(ii) requiring the judges to take the oath or affirmation should be reconsidered, and in achieving righteousness within the judiciary more pressing considerations should be taken into account.