The Asian Human Rights Commission (AHRC) welcomes the news of the UN Special Rapporteur on human rights in Myanmar, Tomás Ojea Quintana, in his press conference of 22 October 2009 that the Chief Justice of Myanmar, U Aung Toe, has accepted a visit by the Special Rapporteur on the independence of judges and lawyers. As the AHRC has studied the situation of judges and lawyers in Myanmar very closely, we would like to preface discussions concerning this important trip with the following general comments.
First, the problem of the non-independence of the judiciary in Myanmar is a 50-year-old problem. It began with the caretaker government of General Ne Win in 1958, and since 1962 there has been no independent judiciary at all. In the 1960s and 70s the structure and habits of the independent judiciary were completely destroyed. So the problem of a non-independent judiciary in Myanmar is not just one of a military dictatorship. It is not the sort of problem with which the rapporteur will be familiar from the past experiences of countries in the Americas, where judiciaries were variously co-opted and cajoled by military dictators to go along with their agendas, or were marginalized and bypassed if they failed to cooperate. It is a more comprehensive problem of the thorough demolition of the independent judiciary, from top to bottom, over a period of decades, to the extent that the notion of an independent judge upon which the Special Rapporteur’s mandate it premised no longer exists in Myanmar at all. Therefore, it is not a problem that will be addressed with some short recommendations for changes in personnel and laws. It is a problem that ultimately will take decades to address, just as it took decades to create.
Second, the problem of the total loss of habits of an independent judiciary is not only among judges and law officers (prosecutors) in Myanmar but also among defence lawyers. Ordinary defence lawyers see their role not as advocates of law but as brokers. This is because ordinary criminal cases are decided through payment of money between the parties, to the police, the prosecutor, the judge and other personnel. The Government of Myanmar itself to some extent acknowledges the corruption in the system, but is unable to address it because the corruption extends to all parts of government, because there are no institutional means to address it, and because the cooperation of the judiciary with the official programme depends upon its personnel being able to make money out of their positions. Therefore, the problem of the non-independence of the judiciary is intimately tied to the problem of endemic corruption.
Third, the problem of non-independence and the problem of corruption together mean that people in Myanmar have zero confidence in the courts. People come before the judiciary because they are brought before it on charges. Most are poor people who are not represented by lawyers, a fact adverted by the Special Rapporteur on Myanmar in his last report when he remarked of his visits to jails on his previous trip that nobody whom he spoke to at random had had legal counsel, and that some did not know the meaning of the word “lawyer”. Some businesspeople also use the courts as part of their commercial negotiations, because if they have more resources than their rival then they can buy judges to settle disputes. But ordinary people do not bring genuine complaints to the courts. This is because there is no perception of the courts as places where someone can find justice. It is also because the courts have less power than other parts of the state apparatus. Instead, a person with a grievance against a state official will take the complaint to a senior person in that part of the administration to which the official belongs, such as the police or the Ministry of Home Affairs. Rather than being able to rely upon the judicial process to consider a complaint, the complainant must hope, in the manner of feudal rule, that someone high up will hear his or her prayer, take sympathy and do something about it. Therefore, the problem of non-independence is intimately tied to the loss of confidence in the system.
Fourth, the problems of non-independence, corruption and no confidence are tied to the non-separation of powers in other parts of the state. For the last half-century Myanmar has been run by decree or, for about 14 years, by a one-party parliament that was anyhow under executive control. The non-independence of the judiciary is intimately connected to the non-separation of the executive and legislative functions. Its role has been completely changed from a body to interpret and apply statute in individual cases to a body to enforce pronouncements that are described as “laws” but that have never had any legislative backing, nor, for most of the time, any constitutional framework; they are only “laws” insofar as laws can be made without a law-making organ and in the absence of a supreme law to give them coherence. Therefore, the problem of non-independence cannot be properly addressed until the non-separation of powers is properly addressed. You will be informed by the government that this will soon be done through the election for new parliaments at the national and regional levels. However, from the contents of the 2008 Constitution of Myanmar–the drafting of which the chief justice oversaw–it is plain that this is not the case. The constitution has declared that the parts of government will be separated only “to the extent possible”, which speaks to how far the Government of Myanmar is not only from separation of powers in reality but also even from a basic conceptual understanding of separateness.
Fifth, the problems of non-independence, corruption and no confidence are also connected to the lack of public space for reporting and debate on the work of judges and lawyers. At present there are no publications in Myanmar that can report openly and honestly on the work of the courts. The government publications rarely make mention of the courts at all. Private publications do so more but they are tightly censored and very little of the types of problems outlined above ever makes it into print. You can buy some of these from newsstands during your visit and ask for some articles to be translated so you may ascertain the limits of their contents. The absence of public space for debate also means that the types of opportunities for public advocacy on cases that have existed under other regimes, such as those formerly in Latin America, do not exist in Myanmar. This also greatly hampers opportunities to address the endemic problems of the judiciary, and therefore its non-independence is affected by the lack of open media.
The upshot is that the courts in Myanmar are not judicial agencies at all. They are merely administrative organs for the management of crime through bureaucratic rather than adjudicative functions, and for the making of money for their personnel. They carry out their activities without public scrutiny and there is no confidence in their work.
These features of the system present rather large challenges for a Special Rapporteur with a mandate premised upon some minimum agreement about a norm that ceased to exist in Myanmar so long ago that its real meaning is completely unknown to people working in the system. Notwithstanding, the Asian Human Rights Commission sees the anticipated visit as an excellent opportunity to explore the deep problems of judicial non-independence in Myanmar further and looks forward to you engaging with as many knowledgeable persons and groups inside and outside the country as possible to make it a success, not with the expectancy of being able to address the problems outlined above, but at least with the hope that they can be explored and understood further such that in the future some informed strategies can be put forward to begin the immense work to again make the work of judges and lawyers in Myanmar independent.
Yours sincerely
Basil Fernando
Director
Asian Human Rights Commission, Hong Kong
Cc: Special Rapporteur on the situation of human rights in Myanmar
Note: The information about the news of the visit of the Special Rapporteur on the independence of judges and lawyers was based upon a UN press release (http://www.un.org/News/briefings/docs/2009/091022_Quintana.doc.htm). The AHRC has since learned that the Special Rapporteur on human rights in Myanmar stated in his press conference that the Chief Justice of Myanmar had agreed to the visit, as indicated in the press release, but that the government had subsequently refused it, not initially refused it as stated in the release. Therefore, at present there are no plans for a visit by the Special Rapporteur on the independence of judges and lawyers. However, as the contents of the open letter relate to the general issues of the judiciary in Burma (Myanmar) we are leaving it posted unaltered.
