In a democratic system, three branches of power – legislature, executive and judiciary — has to be independent from each other. The separation of powers is to ensure the essence of a democracy by enabling each of them check and balance others while ensuring no branch of the government to substantially influence others. Among these three branches, the legislative branch is tasked to develop new laws and amend and revoke the existing laws. We have seen some instances in past seven years that the legislature performed checks and balances on the executive and the judicial branches. But, no remarkable changes happen to the judicial system which has been under the influence of the executive branch for many years. No matter how operational the executive and legislative branches are, only when many citizens trust and benefit from the judicial system.
As the saying goes ‘No one is above the law’, it is imperative for enabling every citizen to have equal rights in accord with the law and to enjoy legal protection. Making the courts free from intervention of executive and legislative branches under an independent judicial system is vital importance in the rule of law system.
Myanmar’s judiciary system includes the Supreme Court of the Union and courts under its supervision, courts martial and the Constitutional Tribunal of the Union. The Supreme Court of the Union is the highest organ of the State’s judiciary in dealing with all legal matters except matters that fall within the jurisdictions of the martial courts and the Constitutional Tribunal of the Union. This article is aimed at building very basic understanding of the formation of the Supreme Court of the Union and its duties and powers through legal basis.
Supreme Court of the Union
The number of judges of the Supreme Court including the chief justice appointed to the Supreme Court must be seven in minimum and 11 in maximum. The president shall submit the nomination of the person suitable to be appointed as the chief justice to the combined house and shall appoint the person who has been approved by the parliament as the chief justice. The president, in coordination with the chief justice, shall submit the nomination of persons suitable to be appointed as supreme court judges to the parliament. The parliament has to confirm the supreme court appointments unless it can’t prove that the nominations failed specific qualifications set out in the constitution. The bench must be free from party politics, the law prohibits. If they are active civil servants, they shall be deemed to have retired from the day of their appointments. To guarantee their rights to get elected, they, if they wish to run in the upcoming general elections, shall be given the right to run election campaigns commencing from day when the election date was announced by the Union Election Commission. The bench can hold office up to the age of 70 years unless resignation, removal or permanent disability caused by either or physical or mental defect according to the findings of the medical board. If the president wishes to impeach any one of them for reasons of breach of any provisions of the Constitution, misconduct, inefficient discharge of duties assigned by law, he shall submit the charge to the combined house speaker who forms an investigation body with an equal number of representatives from each of two houses, setting the time for the completion of the investigation. The speaker, on receipt of findings by the investigation body, shall present it to the combined house. The impeachment is confirmed by two-third majority of the parliament. If the Hluttaw representatives wish to impeach, a charge signed by not less than one-fourth of the total number of either house shall be submitted to the house speaker. Action shall proceed only when this charge is supported by not less than two-thirds of the total number of representatives of the house. The same procedures in another house happens to confirm the impeachment by both house.
The bench could be summoned to the parliamentary sessions for providing their statements on laws and for questioning. The chief justice can opt to provide updates on judicial matters to the parliament. The bench is required to visit prisons, labour camps and cells in police stations once a year for enabling inmates to enjoy the rights in accord with the law and ensuring no delay in court proceedings. The chief justice has the right to make direct submission relating to definition, decision and consent of the Constitutional Tribunal of the Union. If there arises a dispute about whether or not a court’s judicial procedure is in conformity with the Constitution, the proceedings in court shall be suspended and the case shall be referred to the Constitutional Tribunal of the Union for its judgment.
Checks and balances
The legislative and executive branches are given the right to impeach the judicial branch. To use the system of checks and balances on the executive branch, the judicial branch is vested with the power to issue writs.
Duties and Powers
Except matters related to bilateral treaties concluded by the State and constitutional disputes, the Supreme Court of the Union has original jurisdiction in the controversies arising between the Union government and the Region and State government, other disputes among the Regions, among the States, between the Region and the State and between the Union Territory and the Region or State, piracy, crimes occurred in the international waters or in the airspace, crimes occurred on the soil or in the international waters or in the airspace by the breach of international laws and cases prescribed under any law. The Supreme Court of the Union has the power of jurisdiction over the revision and appeal against the judgment, decree or order passed by the High Court of the Region or State or other court. The Supreme Court of the Union has the power of jurisdiction on death penalty confirmation and death sentence appeal. The Supreme Court of the Union has the power of jurisdiction for reconsideration to a case transferred to it by its own decision and for transfer of a case from one court to another. The verdict, decree or order passed the Supreme Court of the Union in the exercise of its original jurisdiction is entitled to be appealed against in order not to lose the right of appeal and special appeal may be allowed against the judgment, decree or order passed by the Supreme Court of the Union in the exercise of appellate jurisdiction or a revision jurisdiction. Except the cases adjudicated by the special appellate tribunal or appellate court, if the Chief Justice of the Union considers, that any problem on which action should be taken for the public interest has arisen in any cases passed finally adjudicated by the Supreme Court of the Union may be granted rehearing by the special appellate tribunal or appellate bench.
The Supreme Court of the Union shall supervise all courts across the country and may direct to adjudicate the important cases of the High Courts of the Region or State, Courts of the Self-administered Division/Zone and District Courts by a bench comprising more than one judge. Although the Supreme Court of the Union has the power to issue writs, the writ is suspended in the areas where the state of emergency is declared and at the time of war, foreign invasion or insurrection.
Although the Supreme Court of the Union is the highest court of the State and has the power to supervise all courts, it has no right to overturn decisions made by the Constitutional Tribunal of the Union, the Union Election Commission and courts martial. Courts martial decide the cases concerning servicemen. Although the military justice system is set up for dealing with offences committed by the servicemen, they are after all citizens and the role of the Supreme Court should also be considered.
It is required to pay more attention to judiciary as judicial independence and independent courts are vital to protect the citizens who are enjoying the fundamental rights in accord with the law.