An interview with a Burmese lawyer taken by the Asian human Rights Commission
BURMA: Burmese lawyer shares his point of view on habeas corpus and related issues
(1)The lower house Senators swore on 30 March 2011 to maintain sovereignty as their priority. Do you think that as a result of this declaration they can practice as an independent judiciary?
To practice as an independent judiciary, the administrative, legislative and judiciary divisions need to be separated first. The Administrative authority should not be involved in or interfere in the workings of the judiciary. Otherwise it cannot be free. The current government should avoid getting involved in the judiciary as they swore to maintain sovereignty. And the priority should be to create a peaceful, just and developed society. Only then will there be an independent judiciary.
(2) For the judiciary and the rule of law to be trusted by the people, what do you think needs to be done?
First of all, judges should judge independently. Secondly, the government should be one which represents all the people. To build a judicial pillar that endures, judges, public prosecutors and lawyer need to cooperate and work together. On the other hand, people should be made aware of the laws and government should educate them so that they can use them wisely. The judicial pillar should be clean, that is free from corruption .There is a saying “you cannot carry justice with a dirty hand.” In order to clean out corruption, staff within the pillar of jurisdiction, have to have a secure life, a proper salary and a decent standard of living. In order for there to be a balance within the rule of law, the administrative, legislative and judiciary components should go forward together in equal rhythm.
(3) Do you think habeas corpus can afford effective protection against the violations of human rights?
Habeas corpus exists already in our Criminal Procedure and the 2008 Constitution recognizes this. If we use habeas corpus effectively, it is a very good vehicle which can promote and protect human rights and ensure that justice is done. But I doubt that in the 2008 Constitution, in a military tribunal, the chief of military defense can judge and render a final decision in cases of military and military affairs. According to the 2008 Constitution, the Supreme Court cannot decide in cases of military affairs. That is why we have to observe and see whether the Supreme Court can really practice habeas corpus.
(4) How can the new government solve the problem where military families and business companies occupy the lands belonging to farmers? These lands are occupied in order to extend the power and influence of the military and to continue the use of forced labor.
In order to render a fair judgment, the judge should try to be free from four biases. Partiality (the bias of wish), meaning affection or love for anyone that affects a judgment in their favor. The biases of anger fear or ignorance in which cases the judge should refrain from handing down a decision.
(5) What do you think of the following scenarios? Cases in which the authorities are involved, cases where the people make a complaint to the court, cases where the court transfers the matter to the police to investigate who do not reach the stage in which any action is taken.
According to Criminal Procedure, after the police investigate, they have to report to the public prosecutors. Through this procedure, they report to the court. The court should judge in accordance with the law through a public trial. If they do not, lawyers and legal experts should make this situation known to the people concerned. The Supreme Court should watch carefully these kinds of cases so that there will be a judiciary in which the general public can believe. If the lower courts put forth decisions that are not fair, the Supreme Court should use Habeas Corpus to correct these cases.
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The views shared in this article do not necessarily reflect those of the AHRC, and the AHRC takes no responsibility for them.
