Judicial Power in Myanmar and the Challenge of Judicial

Independence

MELISSA CROUCH 1
Citation: Melissa Crouch (forthcoming 2017) ‘Judicial Power in Myanmar and the Challenge of Judicial
Independence’ in HP Lee and Marilyn Pittard (eds) Asia-Pacific Judiciaries: Independence,
Impartiality and Integrity. Cambridge University Press

I. RIBBONS OF RESISTANCE

In September 2015, concerns over military interference in the judiciary in Myanmar led to the
organisation of a ribbon campaign.2 The idea was simple: court officials and supporters of the
campaign for judicial independence were encouraged to wear a yellow ribbon (and post a photo
on Facebook) as a sign that they were protesting against the transfer of ex-military officers into
judicial positions. This followed on from high profile campaigns in other parts of the civil
service, such as the Ministry of Health, against the transfer of ex-military officers into positions
of high office without relevant training and above those with greater experience.

The issue of the direct involvement of ex-military personnel in the courts is not new in
Myanmar. The current Chief Justice of the Supreme Court is formerly from the military and
appointed by President Thein Sein (2011 – March 2016) at the start of the reform era in 2011,
having previously served as Deputy Chief Justice from 2007 to 2011. Three other judges of the
Supreme Court also have military backgrounds, while four others come from the Attorney
General’s Office, the courts or court administration. In addition to the Supreme Court, a new
Constitutional Tribunal has been introduced. While members of the Constitutional Tribunal do
not have military backgrounds (although some of the Tribunal staff do), the institution has been
accused of lacking independence and of being influenced by the President’s Office. The most
spectacular example of this was the 2012 impeachment proceedings brought against the entire
bench in relation to a Tribunal decision. Before the parliamentary process for formal
impeachment was complete, all nine tribunal members resigned en-mass. A new bench of nine
members was installed in 2013, yet debate over the role of the Constitutional Tribunal and its
precarious future has continued.

In light of the predicament of Myanmar’s courts, what can be learnt about the idea and ideal of
judicial independence in authoritarian regimes? In some regimes there may be a parallel system
of justice, with independence for ordinary courts with a limited jurisdiction, and the hearing of

1
Citation for this publication: Melissa Crouch (forthcoming 2017) ‘Judicial Power in Myanmar and the
Challenge of Judicial Independence’ in HP Lee and Marilyn Pittard (ed) Asia-Pacific Judiciaries:
Independence, Impartiality and Integrity. Cambridge University Press
2
Pyae Thet Phyo and Swan Ye Htut, ‘Yellow ribbons seek an end to militarised judiciary’ The Myanmar Times
(10 September 2015) <http://www.mmtimes.com/index.php/national-news/nay-pyi-taw/16400-yellow-ribbons-
seek-an-end-to-militarised-judiciary.html> accessed 6 March 2016.

1
most cases by special courts, as occurred in Franco’s Spain.3 The literature on courts in
authoritarian regimes has identified that, in some authoritarian regimes, courts may be given
degrees of judicial independence for strategic purposes like boosting foreign investment, such
as in Egypt.4 Yet these arguments have little relevance in Myanmar, where there is much talk
of judicial independence, and yet explicit and ongoing efforts by the executive and parliament
to contain and control the courts’ actions.

Judicial independence has been identified by some as the preeminent goal for courts in
transitional democracies.5 At a theoretical level, the concept of judicial independence is tied to
the idea of the separation of powers. The judiciary as an institution is imagined to be
independent of the executive and legislative branch. Judicial standards, such as the Beijing
Statement of Principles of the Independence of the Judiciary, refer to the courts’ separation
from the executive. No mention is made in these standards of the military, with the exception
of reference to military courts. The implicit assumption is that the military is under executive
control. Likewise the Bangalore Principles refer to the need for judicial independence from the
executive and legislative branches of government, but no mention is made of the military. Yet
in Myanmar’s quasi-civilian (or semi-military) regime where the military has an overt and
guaranteed presence in both the executive and legislative branch, and an implicit role in the
courts, the question of independence from the military is equally if not more pressing. In this
sense, it is perhaps more useful to talk about the judicial power of the court, that is, its
jurisdiction, interpretive authority and enforcement powers.6

This chapter considers the judicial power of the Constitutional Tribunal and Supreme Court
under the new quasi-civilian government between 2011 and 2016. It highlights the debates
raised over appointment and removal procedures, questions over which court should have
jurisdiction on constitutional review matters, concerns of military-executive interference and
the attitude of the Parliament towards the courts. While the branches of government in
Myanmar have largely been studied in isolation from each other,7 ideas around judicial
independence can only be understood if we consider the courts in relation to the parliament,
the executive, and the military. This exploration of separation from the military in Myanmar
(as a necessary precursor to judicial independence) remains timely and imperative given that
the courts have yet to undergo significant reform.

II. REJECTING THE CONSTITUTIONAL TRIBUNAL’S AUTHORITY

The literature on constitutional courts identifies the initial years of a new court as critical to its
future success and legitimacy, and yet at the same time these formative years are not necessarily

3
J Toharia, ‘Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain’ (1975] 9(3)
Law & Society Rev 475.
4
Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics and Economic Development in Egypt.
(CUP 2007); G Helmke and F Rosenbluth, ‘Regimes and the Rule of Law: Judicial Independence in Comparative
Perspective’ (2009) 12(1) Annual Review of Political Science 345.
5
Stephen Gardbaum, ‘Are Strong Constitutional Courts Always a good thing for new democracies?’ (2014] 53
Columbia Journal of Transnational Law 285.
6
John Gillespie, ‘Rethinking the Role of Judicial Independence in Socialist-Transforming East Asia’ (2007] 56(4)
ICLQ 837 [discussing the concept of judicial power in the context of commercial disputes in Vietnam]
7
See, for example, Thomas Kean, ‘Myanmar’s Parliament: From Scorn to Significance’ in N Cheesman, N
Farrelly and T Wilson (eds), Debating Democratization in Myanmar (ISEAS 2013) on the Union Parliament, or
Dominic Nardi, ‘Discipline-Flourishing Constitutional Review: A Legal and Political Analysis of Myanmar’s
New Constitutional Tribunal’ (2011) 12 Australian Journal of Asian Law 1 on the Constitutional Tribunal.

2
determinative. The Constitutional Tribunal is the first separate institution in Myanmar to have
power to review statutes for unconstitutionality. From 2011 to 2016 the Tribunal heard and
published decisions in fourteen cases.8 Many have suggested that the low number of cases that
the Tribunal has heard should be a reason in favour of abolishing the Tribunal. In addition,
some have argued that because Myanmar identifies as a common law legal system, the current
civil law model of Constitutional Tribunal is at odds with this tradition (although this ignores
the reality that countries like South Africa are a common law system with a civil law style
Constitutional Court). Yet, given the socialist/military legacy, and the fact that it is the only
common law country that is not part of the Commonwealth, its claim to common law status is
questionable. Concerns about its small caseload and civil law attributes are a nominal
justification for the strong negative sentiment towards the Tribunal. The real issues relate to
the perceived capture of the Tribunal by the President’s Office, and to a lesser extent its
structural features. In short, the authority of the Tribunal, and any real impact it could have,
has been rejected.

III. CONTROVERSY OVER APPOINTMENTS AND REMOVALS

The selection process for judges is often said to be the key to judicial independence.9 The
Tribunal consists of nine members and the selection process is in the hands of the Parliament
and the President. Three of the Tribunal members are chosen by the President, the Speaker of
the Pyithu Hluttaw (Lower House) and the Speaker of the Amyotha Hluttaw (Upper House)
respectively.10 There are restrictions on who can be appointed to the Tribunal, and these
restrictions include a person who is a member of the Hluttaw, the civil service, or a political
party.11 While this suggests a division between the branches, there is no time limit to prevent a
person who is part of the military, executive or legislative branch from moving directly into a
court appointment. For example, in 2016 an NLD member of parliament was appointed directly
to the bench of the Constitutional Tribunal. As long as they have given up their prior position
on commencing their role as Tribunal member, they meet the relevant requirements. The first
Tribunal bench (2011-2012) was elected by a parliament that primarily consisted of the
military-backed USDP political party, the 25 percent of military representatives in parliament,
and ethnic national political parties. That is, these Tribunal members were appointed before the
2012 bi-election, when 43 National League for Democracy members won seats in the national
parliament.

The length of tenure of the Tribunal is five years. However, on expiry of its term, the bench
continues until the new President initiates the process for the selection of a new bench. The
bench is therefore tied to the current government of the day, reducing both real and perceived
institutional independence. Due to the elections in November 2015, the new government took
office in February 2016. U Htin Kyaw took over as President on 1 April 2016, and this will
lead to the selection of a new bench of the Tribunal.

8
However of these thirteen cases, three related to the same issue (Decision 2/2014, 3/2014 and 4/2014). Only the
third decision was determinative of that issue. I mention that the Tribunal has ‘published’ thirteen cases, because
there is evidence it has provided additional advice to the President and Parliament on some issues (such as
proportional representation), but as these communications are not made public, it is unclear how many have been
made.
9
N Garoupa & T Ginsburg, ‘Guarding the Guardians: Judicial Councils and Judicial Independence’ (2009] 57(1)
American Journal of Comparative Law 103-134.
10
2008 Constitution, s321.
11
2008 Constitution, s330.

3
The leadership of a new constitutional court is often said to be crucial to the success and
consolidation of such a new institution. In Myanmar, the chairperson is nominated by the
President, which means that the head of the Tribunal is selected by the executive. The
President’s nomination can only be refused by the Pyidaungsu Hluttaw (Union Parliament)12
if the proposed candidate does not fulfil the requirements under the law.13 These qualifications
require a candidate to be over 50 years old; meet the qualifications for Pyithu Hluttaw
representations;14 and they must have either served as a judge of a State/Region High Court for
five years, or as a judicial officer or law officer (public prosecutor) at the State/Region level
for ten years; as an advocate (lawyer) for 20 years; or who is in the opinion of the President an
‘eminent jurist’. While attention has been drawn to the potential abuse in allowing the President
to appoint an ‘eminent jurist’ as a vague category, this appeared in the 1947 and 1974
Constitution and may be similar to the tradition of appointing academics as judges. The issue
over who can appoint an ‘eminent jurist’ was raised in the only case heard in 2016. Members
of the Amyotha Hluttaw (including some military members), challenged the decision to appoint
two Tribunal members based on differences between the constitutional provisions and the
Constitutional Tribunal Law over who can elect a member based on the criteria of ‘eminent
jurist’.15 The Tribunal rejected the case on a separate issue, but the question of who is an
eminent jurist and the credibility of the selection process remains a live issue.

More controversial than the appointment process is the impeachment and resignation (forced
or voluntary) proceedings of the Tribunal members, which came into acute focus in 2012. The
President submitted an application to the Tribunal seeking an opinion on the status of Union
Level Organisations. The President argued that organisations with this status do not have the
power to propose legislation. This was in the context of delays over the passage of the foreign
investment law due to concerns and amendments proposed by parliamentary committees as
Union Level Organisations. The Constitution does not specify whether Union Level
Organisations have power to submit draft legislation. On 28 March 2012, the Tribunal held that
because ‘union-level organisations’ fulfil an administrative function by submitting proposals
to the Hluttaw, they could not also exercise the power to submit legislative amendments.16 The
decision was therefore in line with the President’s submission, and this raised concerns among
members of parliament for two reasons. First, the decision was perceived to reduce the power
of parliamentary committees vis-à-vis the president, and second, there were concerns that the
decision had been influenced by the President’s Office.

Pressure on the Tribunal began to build, and by August 2012 a petition for impeachment
circulated among the Pyithu Hluttaw. The Amyotha Hluttaw then initiated the formal
impeachment process with all non-military members agreeing to the proposal. The Pyithu
Hluttaw established an investigation committee, but in September the members submitted their
resignation in writing to the President.17 Impeachment can be initiated in relation to allegations
of high treason; breach of the Constitution; misconduct; ‘inefficient discharge of duties’; or if
they are disqualified under section 333. This necessitated the appointment of an entirely new

12
The Union Parliament consists of the two houses of parliament sitting jointly.
13
2008 Constitution, s 328.
14
2008 Constitution, ss 120, 121.
15
Eminent Persons Requirement Case 2016.
16
Parliamentary Committees Case 2012.
17
President’s Office Order No 29/2012, Resignations of Chairman and members of Constitutional Tribunal of the
Union allowed, 6 September 2012.

4
bench in February 2013,18 yet this incident left dark clouds brooding over the Constitutional
Tribunal’s future.

IV. FINAL BUT INCONCLUSIVE? THE RESPONSIBILITIES OF THE TRIBUNAL

The Tribunal has the mandate to fulfil a range of functions under the Constitution, which I
group here in relation to four key roles. The primary role of the Tribunal is to hear cases
concerning constitutional review of laws issues at either the national, state/region or self-
administered area level.19 The Tribunal has clarified that it cannot review draft laws but only
laws that have been approved by Parliament and the President. This was the key issue in a case
concerning the draft bill regarding proportional representation in 2014.20 As the draft bill had
not been passed, the Tribunal dismissed the case on the basis that it could not review a draft
law. The popular understanding of this case is that the Tribunal ruled that proportional
representation is unconstitutional, however this appears to be due to communications between
the Tribunal and the Parliament and is not reflected in its written judgment. This issue is one
indication that it is not decisions of the Tribunal that are important, but rather its
communications with other institutions.

Second, the Tribunal has power to hear matters concerning executive decisions of the President,
national, region/state or self-administered area executive bodies.21 This potentially allows the
Tribunal to review any order, decree, regulation or directive of an executive body to determine
whether it is in breach of the Constitution. In 2014, a case initiated by the Speaker of the Kachin
State Hluttaw asked the Tribunal to decide whether the Kachin State Government’s decision to
refuse to approve the state budget was constitutional, and whether the decision of the
Government to fund the construction of a garden is beyond the legislative power of the state
government under Schedule 2 of the Constitution.22 This case also called upon the Tribunal to
exercise a third aspect of its powers, which is to determine the rights and duties of various
levels of government, or disputes between different levels of government.23 In this case the
Tribunal had to decide whether the Kachin State Hluttaw (that is, all members of parliament
including military members) has the power to amend or reject a budget bill proposed by the
Kachin State Government (led by the Chief Minister, appointed by the President) under section
193 of the Constitution. The reason this was in dispute is because the budget is in practice first
approved by the Union Parliament, and then goes to the State Parliament for approval. The
Tribunal held that the Hluttaw only had the power to do so in relation to matters that fall under
section 193(b) of the Constitution (and so partly agreed with the applicants).

A further aspect of the Tribunal’s powers that indicates its close relationship to the Pyidaungsu
Hluttaw is that it also has responsibility for any other duties that the Parliament chooses to
confer on it by law.24 It is difficult to assess this aspect of the Tribunal’s role, but there is
indication that court staff and members have been studying the constitutions of other countries
in order to inform the constitutional amendment process.

18
President’s Office Order No 12/2013 on the Appointment of Chairman and members of Constitutional Tribunal
of the Union, 25 February 2013.
19
2008 Constitution, s 322(a)-(b).
20
Draft Law Case 2014.
21
2008 Constitution, s 322(c), (f).
22
Kachin Budget Case 2014.
23
2008 Constitution, s 322(d)-(e).
24
2008 Constitution, s 322(g).

5
The area of the Tribunal’s authority that has come under repeated and deliberate attack by
Parliament is the question of whether its decisions are final. As Gillespie has noted, the binding
nature of a court decision is critical to judicial power.25 The Tribunal has power to make
decisions that are final and conclusive under the Constitution.26 However, this authority came
into question in 2012 after the impeachment of the Tribunal members, and in 2013 this led to
a proposal in Parliament to amend the Constitutional Tribunal Law to reduce the finality of its
decisions. There are several kinds of decisions that the Tribunal can make, but in 2013 the
Constitutional Tribunal Law was amended so that finality only attached to cases referred to the
Tribunal from the Supreme Court.27 This was an effort by Parliament to reduce the effect of
Tribunal decisions initiated by members of Parliament, and to control decisions that have
binding force through the Supreme Court’s referral powers. In effect, the Tribunal was reduced
to weak form judicial review (except in matters referred by the Supreme Court), although this
change did not reduce tensions between parliament and the Tribunal.28 From the perspective of
the Tribunal, this was unconstitutional weak form review because Parliament’s amendments
ran counter to the Constitution. Further, to effectively attempt to downgrade the Tribunal’s
authority from binding to declaratory in most instances is more damaging than if the Tribunal
had only had declaratory power to begin with.

As a result, the Tribunal hit back. In a case that, among other issues, raised the question of the
finality of the Tribunal’s decisions after the legislative amendments, the Tribunal held that all
of its decisions are final according to the Constitution.29 In effect, the Tribunal rejected the
Parliament’s attempt to limit the force of its decisions. The Tribunal’s decision ran counter to
the opinion submitted by the government, which failed in its bid to argue in support of its
legislative changes to the law. As a result, in late 2014, parliament passed a second amendment
that reaffirmed the finality of the Tribunal’s decisions.30 This deference to the Tribunal seems
short-lived, however, as in 2015 the proposed amendments to the Constitution included
removing the finality of the Tribunal’s decisions (although this proposal failed).

In practice, the 2011-2015 Parliament largely ignored the decisions of the Tribunal, and by
implication the 2008 Constitution. For example, the decision in relation to Union-level
organisations in 2012 is one that has not been followed by Parliament since then. The issues
over finality and a lack of regard for Tribunal decisions by the Parliament have undermined
the integrity of the Tribunal and the potential authoritative value of its decisions.

V. RESTRICTED ACCESS TO THE TRIBUNAL

The institutional independence of a court is affected by the rules concerning access to the court.
There are three types of indirect access to the Tribunal. First, certain executive positions have
indirect access to the Tribunal, specifically the President, the Chairperson of the Union Election
Commission and the respective speakers of the Pyidaungsu Hluttaw (the two houses of

25
John Gillespie, ‘Rethinking the Role of Judicial Independence in Socialist-Transforming East Asia’ (2007]
56(4) ICLQ 837.
26
2008 Constitution, s 324.
27
Amendment to the Constitutional Tribunal Law No 4/2013.
28
Contra Stephen Gardbaum, ‘Are Strong Constitutional Courts Always a good thing for new
democracies?’(2014] 53 Columbia Journal of Transnational Law 285, 315 (who argues that weak form review
may reduce tensions between parliament and a constitutional court).
29
Finality Case 2014.
30
Second amendment to the Constitutional Tribunal Law No 46/2014.

6
parliament sitting together), the Pyithu Hluttaw (lower house) and the Amyotha Hluttaw (upper
house, which is representative of the states and regions).31

A second type is indirect access by the judiciary, specifically the Chief Justice of the Supreme
Court. It should be noted that all of these positions are directly appointed by the President (bar
the President him or herself). In this regard, this indirect level of access is centred around the
President. There have been submissions initiated by members of the Amyotha Hluttaw on
several occasions,32 members of the Pyithu Hluttaw,33 and the Supreme Court.34 The first case
heard by the Tribunal in 2011 was a submission made by the Supreme Court. The Supreme
Court questioned the constitutionality of a request of the Ministry of Home Affairs to appoint
sub-township administrative officers to adjudicate minor criminal cases. The Supreme Court
challenged this law for overstepping the judiciary’s role by giving a judicial function to
administrative officers. The Supreme Court was successful in arguing that the decision of the
Ministry of Home Affairs had exceeded its power.35 In its decision, the Tribunal recognised
that the previous military regime had appointed administrative officers to positions where they
were required to adjudicate minor criminal offences. Yet the Tribunal drew a clear distinction
between the previous regime’s practices and the 2008 Constitution’s requirement of the
separation of the three branches of government. Although section 11 of the Constitution
appears to keep open the potential compromise of the separation of powers, the Tribunal upheld
the separation between the judiciary and executive, at least in relation to the exercise of judicial
power.

The third type of indirect access is when an application may be submitted by a specified
list of members of parliament.36 This includes the Chief Minister of the State/Region, the
Speaker of the Region/State Hluttaw, the Chairperson of a Self-Administered Area, or at least
ten percent of all the representatives of the Pyithu Hluttaw or the Amyotha Hluttaw. Given that
the Union Parliament is large, ten percent is a relatively low threshold. The military, who make
up 25 percent of the Parliament at the Union and State/Region level, are not precluded from
submitting an application. The Constitution makes access to the Tribunal subject to procedure
as determined by law. The Constitution Tribunal Law requires that a Chief Minister must obtain
consent of the President to make an application to the Tribunal; the Speaker of the Region/State
Hluttaw must make his/her request through the Speaker of the Pyidaungsu Hluttaw; the
Chairperson of the Self-Administered Area must make his/her submission through both the
Chief Minister of the Region/state and the President; and if the submission is made by 10
percent of representatives of the one of the houses of the Hluttaw, it requires the consent of the
Speaker of that House.37 In this way, the second tier of access to the Tribunal is significantly
restricted. In particular, it limits the autonomy of the State/Region Hluttaw by tying its
application to the consent of the Union Parliament, while the Self-Administered Areas require
consent both of the State/Region in which it is based and of the President. In short, access to
the Tribunal is heavily centralised and largely determined by the President and the Speakers of
the two houses of the Union Parliament. Further, there is no concept in Myanmar that members
of parliament would bring a case on behalf of citizens. In this respect, there is no formal or

31
2008 Constitution, s 325.
32
Ethnic Ministers Case 2011.
33
Finality Case 2014.
34
Judicial Power Case 2011.
35
Judicial Power Case 2011.
36
2008 Constitution, s 326.
37
Law on the Constitutional Tribunal No 21/2010, s 15.

7
informal link between the Tribunal and society, because the Tribunal in effect only interacts
with the branches of government when the government initiates such interaction.

For example, the second case heard by the Tribunal was initiated by 23 members of the
Amyotha Hluttaw with permission of the Speaker.38 The legislative gap in the benefits given
to Ministers of National Races Affairs in comparison to State and Region Ministers was
challenged as unconstitutional. At the National Convention to draft a new constitution in the
1990s, the creation of special positions for Ministers for National Races Affairs appeared to be
a concession for ethnic nationalities that could not satisfy the criteria for a Self-Administered
Zone.39 The law excluded Ministers of National Races Affairs, as representatives of particular
ethnic groups, from receiving the full privileges allotted to other State Ministers. In a decision
handed down in December 2011, the Tribunal found in favour of the applicants.40 The Tribunal
agreed that all ministers should have equal status and struck down the relevant sections of the
law in question. This was the first case in which the Tribunal used its power to invalidate
sections of a law. Its decision also had the effect of reinforcing the equal status of ethnic
minority groups. Given that the categories of ethnic minorities are a construct and highly
contested, the decision also operated to legitimise the government’s adherence to a highly rigid
and arbitrary notion of ethnic identity that operates to exclude as much as to include.

VI. INSTITUTIONAL STASIS AND SUBORDINATION: THE SUPREME COURT

If the Constitutional Tribunal represents change and corresponding fears of uncertainty, the
Supreme Court is the epitome of the old regime and institutional stasis. The Supreme Court
was re-established in 1988, after the abolition of the socialist-era Chief Court. The period from
1988 to 2010 was marked by complete executive-military discretion in all aspects of court
affairs.41 Post-2010, there are now legal provisions establishing a clearer process for the
selection, tenure and removal of judges of the Supreme Court and of judges of the State and
Region High Courts.42 Yet rather than use the new regulations to enhance the independence of
the courts, instead this legal framework allows for overt executive control over the courts. This
runs counter to the narrative of the ‘need for judicial independence’ perpetuated by current
government actors.

The current legal framework, which is unlikely to change in the short term, grants the President
significant powers over the courts. The President nominates the Chief Justice of the Supreme
Court and the Union Parliament cannot object to the nomination unless the candidate does not
meet the selection criteria. The Chief Justice, U Htun Htun Oo, was nominated in February
2011, having previously served as Deputy Chief Justice. In this regard, there has been no
change in the leadership of the court. Judges of the Supreme Court are appointed by the
President and the Chief Justice, and seven judges currently sit on the bench, although there can
be up to 11 appointed. Among these, several judges are known to have military backgrounds,
including the Chief Justice. For legal practitioners in Myanmar, this knowledge alone is one

38
Ethnic Ministers Case 2011.
39
Melissa Crouch, ‘Ethnic Rights and Constitutional Change’ in A Harding and M Sidel (eds), Central-Local
Relations in Asian Constitutional Systems (Hart Publishing 2015)
40
Ethnic Ministers Case 2011.
41
Myint Zan, ‘The New Supreme Court and the Constitutional Tribunal: Marginal Improvement or More of the
Same?’ in Nick Cheesman, Monique Skidmore and Trevor Wilson (eds), Myanmar’s Transitions: Openings,
Obstacles and Opportunities (ISEAS 2012).
42
Union Judiciary Law No 20/2010.

8
indication of the close relationship between the courts and the military, as well as evidence of
continuity in terms of interference with judicial independence.

In a similar way, the President also has power to appoint the Chief Justices of the 14 State and
Region High Courts in collaboration with the Chief Minister of the State and Region (who is
also appointed by the President). Nominations for judges of the High Court are made by the
Chief Minister and the Chief Justice, and the State or Region Hluttaw must approve the
nomination, unless the nominee does not meet the criteria. A presidential order is usually issued
as notification of the appointment of judges.43 In this way, the President has complete power
to determine the composition of the bench of the Supreme Court and all 14 State/Region High
Courts, providing candidates meet the selection criteria. This structural advantage in favour of
executive control over the courts leaves little room for judicial independence. While there has
been some discussion of judicial appointment practices, Myanmar clearly remains a long way
from current trends across the common law world.44

The President’s decision in terms of the selection of judges is open to significant discretion as
the selection requirements for Supreme Court judges and High Court judges are broad.
Nominees must be between 50 and 70 years old. The requirements for judges are also linked
to the requirements for legislative candidates. They must be loyal to the Union and cannot be
members of the Hluttaw or of a political party. They must be a lawyer or judge with years of
experience depending on their position, or an ‘eminent jurist’ in the opinion of the President.
In reality, it is rare for an advocate (senior lawyer) to be appointed as judge, as a result of
socialist practice overriding the past common law tradition of judicial appointments from the
bar.

Although most government actors would acknowledge that the courts are not independent,
there have not yet been efforts to remove judges of the Supreme Court or State/Region High
Courts through the new constitutional process.45 The process for removal can be initiated by
the President, the Pyithu Hluttaw (Lower House) or Amyotha Hluttaw (Upper House). The
grounds for removal include high treason, misconduct, breach of the Constitution or
inefficiency in office, a broad catch-all concept. The process requires an investigation body to
be established with members of parliament at either the national or State/Region level, and
therefore amounts to exclusive legislative/executive oversight of the judiciary. The President
or the Chief Minister of the Region/State essentially has the power to act as the prosecutor
against the accused judge by bringing evidence and witnesses before the investigation body. If
the motion relates to a judge of the High Court of the State/Region, the process requires one
quarter of the support of the members of the State/Region Hluttaw, which essentially means
that military officers who occupy 25 percent of seats in parliament have enough support to
effect an impeachment motion. Terms of judicial office are limited by age – 70 years for
Supreme Court judges and 65 years for State/Region High Court judges.

The composition and tenure of the court is determined by the Constitution, although this has
been subject to discussion as part of the broader process of constitutional amendment. In 2015,
two bills on constitutional amendment were discussed and voted on in parliament. Part of the

43
See for example Order No 28/2014, dated 23 December 2014, Appointment of Judge of Sagaing Region High
Court.
44
J van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A
Compendium and Analysis of Best Practice (Bingham Centre for the Rule of Law 2015).
45
The removal process was tested in the impeachment of all members of the Constitutional Tribunal, but this is
beyond the scope of this chapter.

9
proposal was to limit the terms of the judges of the Supreme Court to five years so that they
were tied to the term of the government, although the proposal was ultimately unsuccessful.46
Nevertheless this suggestion for reform is one indication of the fact that while many people in
Myanmar are talking about the need for judicial independence, in fact parliament has attempted
to take measures to further limit the capacity of the court. Ironically, the measures that keep
the courts captive to the executive – from the selection criteria to the nomination process – are
perceived by the parliament to be insufficient. This is because Parliament sees itself as a ‘check’
on the power of the courts, rather than the courts as a legitimate check on the power of the
executive and legislature

The authority of the Supreme Court is used in turn to reinforce its control over the lower courts.
The Supreme Court has exclusive authority to hear certain matters; appellate authority; a
supervisory function over the State/Region High Courts, a reporting function in terms of the
publication of case law, and a law-making function that brings it into interaction with
parliament.47

In its exclusive or original jurisdiction, it can hear matters arising from bilateral treaties, from
disputes between the Union Government and State/Region Governments, or disputes among
State/Region Governments that are not of a constitutional nature. It also has authority to issue
the writ of habeas corpus, mandamus, prohibition, quo warranto and certiorari as remedies
against unlawful government decisions. This new authority has caught the attention of legal
scholars and practitioners in Myanmar.48 Excluded from its authority is the power to
retrospectively hear penal cases, which conveniently functions to protect the military and
former government from prosecutions for past crimes. The Supreme Court also cannot hear
matters of constitutional law, although it can refer these matters to the Constitutional Tribunal.
This is perceived as a dent in the authority of the Supreme Court, and talks of abolishing the
Constitutional Tribunal have often been linked to the idea of transferring constitutional review
to the Supreme Court. Yet given its institutional subordination to the executive-legislature-
military, this reform on its own would be unlikely to see greater independence in the hearing
of constitutional review cases.

The Supreme Court can hear appeals from the State/Region High Courts. It also has discretion
to review a court decision under its revisional jurisdiction (although unlike in an appeal, it
cannot take into account new evidence). It is the final court of appeal and its decisions are said
to be final, yet the Constitution allows for several possible appeal mechanisms. There is a right
to appeal in all cases concerning the death penalty (note the irony of the death penalty in this
majority-Buddhist country). There is also an avenue of special appeal for cases heard in the
Supreme Court. In short, there are multiple possibilities for appeal in most cases, and this raises
the question why. Shapiro has argued that ‘appellate institutions are more fundamentally
related to the political purposes of the central regimes than to the doing of individual justice’.49

46
Draft Laws on the Amendment of the 2008 Constitution, dated 11 June 2015 [published in Myanma Alin, in
Burmese].
47
Union of Myanmar Supreme Court Strategic Action Plan (2013).
48
Mar Hlar Aung, Reported Cases of Writs Application with Judgment Summary 1948-1971 (n p 2011); U Tin
Win, Sachundaw Lut-tone Shauk-ta-bone Siyintone. (n p 2012); U Win Maung Htet, Pyidaungsu Thamada
Myanma Nainggandaw, Pyidaungsu Hluttaw hma atipyu pya htana thi 2013 ku-hnit, Sachundaw Amein Shauk-
ta-hmu sain-ya Ubade hnin Ni Ubade-mya (n p 2013); U Yi Sein, Sachundaw-E Ahnit Tha-ya-mya. (n p 2014).
NO, ‘np’ stands for ‘no publisher’, because your footnote style requires a publishesr name to be included in the
brackets.
49
Martin Shapiro, Courts: A Comparative and Political Analysis. (University of Chicago Press 1981) 52.

10
This is evident in the case of Myanmar, where multiple opportunities for appeal to a higher
court channels the discontent of the losing party to bolster the legitimacy of the system.
Cheesman has suggested that appeals in Myanmar are in part a result of corruption and the
practice of double cropping, where judges at both the original and appellate level can take a
cut of bribes.50 Corruption alone does not explain the tendency to appeal, but the provision of
multiple opportunities to appeal also operates to justify and reinforce the authority of the
military-infused legal system itself.

The Supreme Court also has a supervisory function in terms of oversight of all 14 High Courts
(one in each Region or State). Each High Court in turn overseas the District Courts;51 Township
Courts; and other specialised courts below it, such as the Children’s Court. The supervisory
role of the Supreme Court also extends to prisons and it can inspect prisons or prison camps in
order to check that an individual’s rights are being upheld while in detention. Its role in
supervising prisons existed since its inception in 1988, yet the scale of political prisoners and
the observations of multiple human rights organisations on the conditions in prisons suggests
it has not actively exercised this authority.

The Supreme Court has exercised its law-making function to submit bills to parliament and
assist in the drafting of legislation, often at the express request of the Parliament. For example,
in 2014 the Supreme Court was instructed to draft the Anti-conversion Law and the Monogamy
Law that altered personal law for Buddhists and Muslims,52 as well as the bill to amend the
Penal Code wason the legislative agenda in 2015. In addition to its role in drafting legislation,
the Supreme Court has the power to issue regulations on court practice and procedure. Further,
because the Supreme Court is classified as a ‘union-level organisation’, the Pyidaungsu
Hluttaw has the power to summon judges to parliament.53 This allows the over-powerful
legislature to call to account judges of the Supreme Court. For example, judges of the Supreme
Court have been called to Parliament to report on constitutional writ cases.54 This reinforces
deep-seated concerns that the judiciary is neither independent nor separate from the executive
and the military.

There have been several laws passed or amended by parliament in relation to court procedures
and practices, such as the Contempt of Court Law No 17/2013. While the prior Contempt of
Court Act 1926 was used in a limited way, Cheesman has identified that in 1992 the Supreme
Court significantly widened the ambit of the offence of contempt and therefore the operation
of the law.55 The revised law passed in 2013 is a significant deterrent for lawyers and applicants
to bring cases to court, and for the media to cover court proceedings. In one example, the
Ministry of Information brought a case for contempt against 17 senior figures of the Daily
Eleven news group (Kyaw Phone Kyaw 2015), who were accused of defamation for alleging
that the Ministry had misused government funds. This is in addition to a defamation case
brought against them in relation to the coverage of the court trial of five other members of the

50
Nick Cheesman, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order. (Cambridge
University Press 2015) 189; Nick Cheesman, ‘Myanmar’s Courts and the Sounds Money Makes’, in M Skidmore
and T Wilson (eds), Myanmar’s Transition: Openings, Obstacles and Opportunities (ISEAS 2012).
51
At the same level as District Courts are the six Self-Administered Zone or Division Courts.
52
Melissa Crouch, ‘Promiscuity, Polygamy and the Power of Revenge: The Past and Future of Burmese Buddhist
Law in Myanmar’ (2016) 3(1) Asian Journal of Law and Society 85.
53
2008 Constitution, s77(c).
54
Melissa Crouch, ‘The Common Law and the Constitutional Writs in Myanmar’ in Melissa Crouch and Tim
Lindsey (eds) Law, Society and Transition in Myanmar. (Hart Publishing 2014).
55
Nick Cheesman, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge
University Press 2015) 243.

11
same media outlet. The excessive use of the Contempt of Court law to target political opponents
remains a real way in which the courts actively discourage applicants from bringing cases, and
punish applicants for bringing a ‘wrong’ or failed case.

VII. THE PUBLIC FACE OF THE COURTS

The subordination of the Supreme Court and the establishment of the Constitutional Tribunal
comes at a time when Myanmar’s legal system has been shaped by decades of isolation. Since
1974 the courts were required to operate in Burmese language, rather than English. Court
decisions in Myanmar are focused on a local audience and have effectively been isolated from
the common law world of comparative jurisprudence. Courts rarely cite cases from other
jurisdictions, although this was once the case in the pre-1962 era.

In relation to the non-judicial function of judges, in Myanmar judges do not play a public role.
Cheesman aptly notes the shift in public engagement by the judiciary over time.56 Prior to the
1960s, trials were open to the public and frequently covered in the media. After this, and
certainly by the 1980s, media reporting of court proceedings or the opinions of judges had dried
up. Often the only time a judge appears in public is in the presence of a military officer. This
again is changing, with new media freedom leading to more frequent reporting of cases. Yet it
is still true that the judge him or herself does not personally play a public role in Myanmar.

As an institution, however, the Supreme Court has begun to build an online public presence.
This began with a website and then, in July 2016, included the launch of the Supreme Court’s
Public Relations Division facebook page (facebook being the primary way that people in
Myanmar use the internet). The page includes posts on case lists and hearings, advertisements
for judicial positions, and notifications of judicial promotions or appointments.

Judicial independence and the public image of the court can be gauged through court reporting
practices and its practises of statutory interpretation. If judicial independence and notions of
accountability are complementary rather than antagonistic,57 then court reporting is a means of
keeping the judiciary accountable by publicly reporting its court decisions. The Constitutional
Tribunal and Supreme Court differ significantly in this respect. The Constitutional Tribunal,
as a new institution separate from the other courts, publishes its own court decisions. Only
some of these are available online. It does not appear to have a court reporting board, and it
does not publish a list of its court hearings online nor of all applications it has received. In
short, the publication of its decisions has been delayed, sporadic and difficult to access.

As the longer-standing institution steeped in the legal traditions of the past military regime, the
Supreme Court has a more established practice of court reporting. It is in part a continuation of
British colonial practices of court reporting of apex courts, although all semblance of
independence has long been discarded. The reporting of court decisions of the Supreme Court
demonstrates clear evidence of executive involvement in the judiciary, as staff from the
Attorney General’s office sit on the board alongside staff of the Supreme Court. The Board
determines the selection and reporting of cases for publication in the annual Myanmar Law
Reports.

56
Nick Cheesman, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge
University Press 2015) 119-120.
57
Stephen B Burbank, ‘What Do We Mean by “Judicial Independence”?’ (2003) 64 Ohio St L J 323.

12
Somewhat ironically, while many of the past restrictions on the media and publications have
been lifted since 2011, the process of reporting and publishing court decisions has not changed.
The Myanmar Law Reports only include cases of the Supreme Court (not any lower courts),
and they only publish a very small number of cases per year. Unreported cases are generally
not made available to the public. The cases are said to be selected on the basis of whether there
are any former rulings on the topic; whether the ruling is in the public interest, and whether the
ruling is one that is useful for the guidance of the lower courts. Yet it is noticeable that the
Myanmar Law Reports have not published any high profile political cases. The accessibility
and availability of court decisions may potentially change in the future, depending on the
responsiveness of the court to calls for greater transparency.

Aside from court reporting practices, another indication of the level of independence, or lack
thereof, is the rules of statutory interpretation. The principles of statutory interpretation are a
key part of constitutional and administrative law, because they guide the court in the
interpretation of the law. In Myanmar, statutory interpretation is guided by a number of
principles that can be used to wed the courts to the military past. The Basic Principles in the
Constitution are a guide to interpretation of the Constitution and other laws.58 The Basic
Principles include a heavy emphasis on maintaining the unity of the country, and of ensuring
the military’s place in governance of the country.

The Constitution also refers to the existing law on statutory interpretation, which is the
Interpretation of Expressions Act 1973, a law that was introduced in the socialist era. This law
bears some similarities to the previous General Clauses Act (from the British common law era),
but also requires any section of a law to be interpreted according to the intention of the
legislative authority that passed the law. During the socialist era, this was a reference to the
Pyithu Hluttaw, the unicameral parliament filled with members of the Burma Socialist Program
Party.

In addition, there are numerous volumes of the National Convention records from 1993-1996
and 2004-2007 that can be used to interpret constitutional provisions. These records contain
the speeches and reporting of the highly censored and restricted National Convention process.
These volumes are in effect the military’s take on the drafting of the Constitution. While there
is no mention in law that these volumes may be used by the courts, the first bench of the
Tribunal did make some use of them, although the second bench did not expressly rely upon
them in the interpretation of the Constitution. These volumes are not widely available, and are
not available for purchase or accessible online, although they can be found in some university
and government libraries across Myanmar. In effect then, the Tribunal may be referring to
documents for the purpose of statutory interpretation that lawyers and their clients may not
have access to, leaving aside the highly disputed nature of the National Convention process
itself.

According to the 2008 Constitution, it appears that only the Constitutional Tribunal has the
authority to interpret the Constitution. Some lawyers have understood this to mean that the
Supreme Court would have to refer any question on the interpretation of the Constitution to the
Constitutional Tribunal. Given that the Supreme Court has original jurisdiction in writ cases
that concern constitutional rights, this should mean that the Supreme Court works very closely
with the Constitutional Tribunal. However the Supreme Court has not referred a matter of
interpretation in a writ case to the Constitutional Tribunal.

58
2008 Constitution, s 48.

13
Finally, this discussion has focused on matters internal to Myanmar, given the isolated nature
of legal discourse. There is no practice of recourse to comparative law, the decisions of other
common law jurisdictions, international law or human rights norms. This is in contrast to the
pre-1962 era when this was the case. Further, in 1947 Burma chose to opt out of
Commonwealth membership, and so its legal links to the common law world are thin. Unlike
regimes such as Fiji,59 there is no possibility of suspending membership from the
Commonwealth for judicial interference, as Myanmar is not part of it.

VIII. CONCLUSION

A visit to the current building of the Constitutional Tribunal and Supreme Court speaks
volumes about its institutional status in comparison to other political institutions and to each
other. The courts’ premises are located about 40km from the centre of Naypyidaw, and
Naypyidaw is almost a full day drive from the major centres of Yangon or Mandalay. It is one
of the government buildings that is furthest from the parliamentary complex with its expansive
moat and 20 lane highway. Its location operates as a further barrier to access to the courts given
the lack of public transport in Naypyidaw. The court building, in contrast to the lavish
parliamentary grounds, is decidedly modest. Its white-washed walls are stark and plain. The
building is shared between the Supreme Court and Constitutional Tribunal, suggesting that the
institutions are actually much closer in function than they really are, while also implying that
neither is important enough to warrant its own building. The Tribunal and Supreme Court are
not open to the public, and access is restricted by guards at the gate. In short, these institutions
are among the more difficult institutions to access in Myanmar.

What does this suggest about notions of judicial power in Myanmar’s semi-military regime?
To return to the ribbon campaign with which I began, perhaps the more remarkable point was
that there was a campaign at all. Military involvement in the courts, both at a personal and
institutional level, has become the norm over past decades in Myanmar. To bother to protest
over military transfers into the judiciary, and the freedom to campaign in this way, suggest a
shift is taking place. Yet this change in expectations about the role of the courts in relation to
the military must contend with the dominant practice on the part of the executive-legislature,
which is to reject the authority of the court. This has serious implications for the future of the
Constitutional Tribunal, yet the most likely scenario in the absence of constitutional
amendment is an institution publicly derided, devoid of judicial power and consigned to the
margins of political influence. Despite the NLD majority-government, the Supreme Court is
likely to remain loyal to its appointees, short of removal proceedings against the Chief Justice.
In sum, we must first identify the nature of judicial power and the need for the separation of
the courts from the military, and only then can we consider the independence of the judiciary
from the executive and legislative branch.

59
J Corrin, ‘Judge or be Judged: Accepting Judicial Appointment in an Unlawful Regime’ (2009) 16(2-3) Intl Jnl
of the Legal Prof 191-209.

14