Min Lwin Oo, Lawyer, Burma Lawyers’ Council, Thailand
It is human nature that nobody will be satisfied with losing. Humans will not miss the opportunity to go to the ends of the earth and sky if they can get there. So too in criminal cases, if a party is dissatisfied with the decision and order of a lower court, they will appeal to the upper courts one by one for an amendment. In Burma, a person dissatisfied with the decision of a township court can appeal to a district and division court, and from there, to the Supreme Court. If dissatisfied with the Supreme Court decision, one can apply for a special appeal.
The upper courts must assess whether the decisions of the lower courts are in accordance with the law, and correct them where there are errors of judgment. However, if the Supreme Court is itself making more and more wrong decisions, it causes anxiety among the public, and undermines the rule of law. It is not enough to point out that nobody is without errors; it is the duty of the courts, above all the Supreme Court, to ensure that errors are minimised. A Burmese humour magazine joked that if a doctor does wrongly, he is reborn into existence six planes below our own, but if a lawyer makes an error, he is reborn into existence six planes above; a funny joke, but it also warns of the weighty responsibility owed by lawyers. That said, if lawyers err, it is still possible for the highest courts to correct them. However, if the highest judges in the land err, it is a bad situation that cannot be easily remedied.
To minimise errors of judgment, it was written into the 1947 Constitution that Supreme Court judges in Burma must have a minimum of 15 years’ experience as advocates in that court before taking up their positions. The reasoning behind that clause was that only such persons would have developed the ability to assess and decide cases. However, under the 1974 Constitution, when it was decided that the ‘people’s courts’ should be presided over by the people, to become a judge one did not even require legal training. Most judges were just handpicked from among the Burma Socialist Programme Party membership, and most in the upper courts came from military backgrounds. As a result, a functioning and developed legal system was at once tossed on the scrap heap; years of case law were ruined. When the socialist era ended in 1988, these personnel were again changed by the new regime; the members of the Supreme Court were again chosen without regard to legal qualifications or experience. The consequence of this situation has been a growing number of special appeals against decisions by the Supreme Court.
At the hands of the current regime, enacted law has also become ambiguous, thereby posing danger to the basic rights of citizens. Take for instance the 1993 Narcotics Drugs and Psychotropic Substances Law, which does not prescribe a life sentence for any offence, but instead allows sentencing of ‘unlimited periods’ of imprisonment. Whereas a life sentence is a period of around 20 years, an unlimited period can mean one day, one year, ten years or whatever. Hence, the making of laws and passing of sentences has also lost clarity and exactitude under this administration, and as a result it has created confusion in the courts. In a recent drug case arising from the Shan State Court (Taunggyi District), the accused was charged with violating section 19(a) of Narcotics Drugs and Psychotropic Substances Law (possessing, transporting, transmitting and transferring a narcotic drug or psychotropic substance for the purpose of sale). The section carries a penalty of a minimum ten years’ imprisonment, and no maximum limit. On appeal to the Supreme Court, the court gave a life sentence, even though the law does not provide for one (Union of Myanmar vs Aung Myint [a.k.a.] Archin [and others] 2001; SC Law Reports, pp. 38-41). In fact, it seems as if the court is not even reading the regulations in many instances. Looking through the Supreme Court published case records of important decisions during 2001, one sees that–remarkably–out of 15 rulings listed, special appeals against erroneous decisions were allowed in ten cases. In this manner, lengthy delays in concluding cases are being caused by incompetent judges giving dissatisfactory rulings.
One of those ten cases related to the circumstances under which an offender could be released on bail, a matter that is established in the court house and relevant police station, in accordance with section 497(1)(2) of the Penal Code. The court can find within its reasoning grounds for the giving of bail in cases where it is not possible for the police to do so. The case in question arose at the police station of South Okkalapa Township, in the suburbs of Rangoon, during 1999 (First Information Report No. 648/1999), and involved one Aung Soe Win, charged under section 406 of the Penal Code with criminal breach of trust. However, section 406 is a non-bailable offence at the police station, bailable only upon consideration of the court. The bailors of the accused, U Aung Kyi and U Than Lwin, in order to get him out of custody, had Deputy Superintendent U Htay Win open the case under section 514. Finally, as if scribbling numbers up on a blackboard, a bail bond was issued under section 420 for cheating, which is also a bailable offence at the police station. It is not known how much it cost the two guarantors two arrange this with the police.
Trouble arose when the accused, who might have had more experience with the police than he let on, immediately skipped bail and was nowhere to be found, subsequently missing his hearing date. The two bailors were brought before the court in his stead and–in accordance with the judicial maxim– “correctly and quickly” ordered to pay 200,000 Kyat (US0) each out of a fine of 400,000 Kyat. The case made its way to the Supreme Court on appeal, which reduced the amount of the penalty from 200,000 Kyat to 100,000 Kyat. The bailors were still not satisfied, and made a special appeal to the Supreme Court (U Aung Kyi [and others] vs Union of Myanmar; 2001 Special Criminal Appeal No. 27; Law Reports, pp. 113-119). The appeal was accepted, and the judges held on this occasion that only the Officer in Charge of a police station is able to grant bail for a non-bailable offence of this nature, and not his subordinates. However, the court did not indicate in whose presence the bail bond could be issued. Anyhow, the judges of the Supreme Court found that in this case the bail bond was not issued legally in the first instance, and annulled the earlier orders for payment of fines.
Readers can conclude for themselves where the mistakes lie in the above judgment. Suffice to say that it seems to encourage a police officer to give a little ‘help’ to a citizen in exchange for a bribe where and when he wants to do so. The case speaks to the problem defined throughout this article: the ambiguity eroding all aspects of the Burmese judicial system, which arises first from staffing the judiciary with incompetents; and second, from the replacement of developed case law and legislation with deliberately ambiguous regulations and decision-making. Under the circumstances, what else can be expected than erroneous judgments and victimised petitioners and defendants? A Burmese citizen going before the country’s Supreme Court in the years after 1947 could at least rely upon the judges having the constitutional prerequisite 15 years of experience as advocates in the same institution, upon which to base their judgments and minimise errors. The current administration seems to have concluded that a constitution is not even necessary for the running of a country, let alone the functioning of its courts. As a consequence, the same citizen going to the Supreme Court today can do no more than to put a loss down to fate, and atonement for sins from past lives, as it appears that these factors, rather than the law, are responsible for any given outcome.
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Footnote: This is an adapted version of an article that originally appeared in the Journal of Constitutional Affairs, no. 14, December 2002, published by the Burma Lawyers’ Council, Thailand, translated and edited for English by Nick Cheesman, Asian Legal Resource Centre.
