Myanmar's Old Judiciary: A Challenge to the New Era of Governance (CSIS)

Myanmar’s Old Judiciary a Challenge to the New Era of Governance

By Aung Din
January 5, 2016
http://cogitasia.com/myanmars-old-judiciary-a-challenge-to-the-new-era-of-governance/

In February 2016 in Myanmar, the new Union Parliament will begin to exercise legislative power with newly-elected members. Myanmar’s new government will take administrative power in April. The National League for Democracy (NLD) party, led by Aung San Suu Kyi, won a landslide victory in the November 2015 election, so both the new parliament and the new government will be led by the NLD for a five-year term. However, the country’s legislative power will continue to be checked by incumbent judges, all of whom were appointed by outgoing President Thein Sein.

The 2008 constitution drafted by the military government set the length of terms for the president and legislators for five years. Many governing bodies appointed by the president and approved by the parliament also have five-year terms. However, the chief justice and judges of the Supreme Court are allowed to serve up to the age of 70 years, and those of the high courts of the states and regions until the age of 65. The average age of incumbent judges at present is about 60 and therefore most judges can serve at least two presidential terms consecutively, unless they resign from their positions, are found guilty of violating the constitution, or are unable to complete their duties due to illness or death.

During the recent election campaign, the NLD promised voters that it would bring about changes to the country. However, with 25 percent of seats in parliament controlled by the military, three important ministries and domestic agencies in the government controlled by the military, and all incumbent judges appointed by the former president controlling the judiciary, the NLD and Aung San Suu Kyi may not be able to change the country as much as she and the electorate wish.

Since President Thein Sein assumed office in 2011, he deserves credit for making positive changes in governance. Parliamentary Speaker Shwe Mann warrants praise for making the legislative bodies more active and productive. However, the country’s judiciary remains unchanged. Like under military rule, the judiciary is still corrupt, not independent, unjust, and under the influence of the Ministry of Home Affairs, whose minister is appointed by the commander-in-chief, not the president. In Myanmar, the police special branch, under the Home Affairs Ministry, represents the government in legal cases and puts pressure on judges to rule in the government’s favor. The attorney general, who is appointed by the president, has limited powers under the constitution and primarily supports the police and works to make sure that the government wins its cases.

On December 8, 2015, a parliamentary committee investigation into the judiciary submitted its findings to the Lower House. The committee reported that “a chain of bribery” is deeply entrenched throughout the judicial system. Because the constitution authorizes the president to appoint the chief justice, and the chief justice to consult the president for the appointment of other judges on all benches, a patronage network is unofficially activated with each appointment and judges at every level are under the influence of senior judges and the administration.

The investigation concluded that, “the people have been feeling insecure in their social and economic lives due to the lack of the rule of law. Only a judiciary system that is clean, independent, and just can protect the people — therefore democratic reform of the judiciary system is much needed.” However, the NLD government will not be able to implement these recommendations if it cannot overhaul the current judiciary system by replacing old judges with the new ones.

Generally, allowing judges to serve a longer term than the government is desirable and necessary for the independence of the judiciary if judges are seriously vetted by the president and thoroughly scrutinized by the parliament. However, in Myanmar, the parliament has no power to scrutinize judges nominated by the president. The constitution clearly stipulates that “The Pyidaungsu Hluttaw (Union Parliament) has no right to refuse the persons nominated by the president for the appointment of the chief justice of the Union and judges of the Supreme Court of the Union unless it can clearly be proven the persons concerned do not possess the qualifications prescribed for judges of the Supreme Court of the Union in the constitution.”

In the United States, the appointment of a justice for the Supreme Court can become an epic political battle. The president has to exert significant effort to vet a nominee to guarantee his or her personal history and qualifications. The U.S. Congress also investigates the presidential nominee to decide if he or she really deserves to hold a judicial position. The public is also deeply involved in helping Congress to make an informed decision.

In Myanmar, the confirmation process for judiciary nominees is too swift — no more than a week because the parliament only has to scrutinize the nominee for simple qualifications prescribed in the constitution, such as “a nominee must be an age between 50 and 70, have at least five years experience at a state/regional court or at least 10 years experience as a state/regional legal officer or at least 20 years experiences as an high court attorney, or be a person whom the president trusts as a prominent legal expert.” There is no room for the public to express its opinions on presidential nominees.

The judges appointed by President Thein Sein have run the judiciary with broad powers in Myanmar over the last five years, and unfortunately they will continue to rule the courts for at least another five years. Many people hope that Aung San Suu Kyi will find a magic formula to clean up the judiciary and reform corrupt court rooms, in order to make judges accountable for their decisions. Without an independent and impartial judiciary, Myanmar’s democracy cannot grow and blossom and Aung San Suu Kyi and the NLD can be stymied at almost every turn.

Mr. Aung Din is a former political prisoner in Burma and currently lives in the United States. He serves as a consultant for Moemaka Multimedia, based in San Francisco, and as senior adviser to the Open Myanmar Initiative (OMI), a non-profit organization based in Yangon that promotes the right to information and education. See more information about OMI here.