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Myanmar: Constitutional and legislative recognition of the principle of judicial independence

On 21/03/2014 in

The independence of the judiciary must be guaranteed by the State and enshrined in the Constitution or the law.[31]

The Constitution of Myanmar prescribes “as judicial principles”: “to administer justice independently according to law; to dispense justice in open court unless otherwise prohibited by law; and to guarantee in all cases the right of defence and the right of appeal under law”. [32] The principle of independence is reinforced through the requirement that judges of the Constitutional Court, the Supreme Court and High Courts be free from party politics.[33]

However, these Constitutional provisions have not yet been reflected in actual practice. In his latest report, the Special Rapporteur on the situation of human rights in Myanmar stated he “sees no evidence that the judiciary is developing any independence from the executive branch of government”.[34] The following sections contain some examples of how the independence of the judiciary from the Executive is neither safeguarded nor respected under ordinary legislation and practice.

  

Footnotes    (↵ returns to text)

  1. 31. UN Basic Principles on the Independence of the Judiciary, Principle 1.

    The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

    ↵
  2. 32. Constitution, S. 19(a);
    The following are prescribed as judicial principles: (a) to administer justice independently according to law;
    State Peace and Development Council Law No. 20/2010 (The Union Judiciary Law), 28 October 2010 (hereinafter: “Judiciary Law”), S. 3(a).
    The administration of justice shall be based upon the following principles: (a) to administer justice independently according to law;
     ↵
  3. 33. Constitution, S. 300(a)

    (a) The Chief Justice of the Union or Judges of the Supreme Court of the Union must be free from party politics.

     and S. 301(f)

    The Chief Justice of the Union and Judges of the Supreme Court of the Union shall
    be a person of following qualifications:… (f) who is not a member of a political party;

     and Judiciary Law, S. 30(f)

    The Chief Justice of the Union and Judges of the Supreme Court of the Union shall fulfil the following qualifications: … (f) be a person who is not a member of a political party;

     for the Chief Justice of the Union and the Judges of the Supreme Court; Constitution, S. 309(a)

    The Chief Justice of the High Court of the Region or State and Judges of the High Court of the Region or State must be free from party politics.

    and S. 310(f)

    The Chief Justice of the High Court of the Region or State and Judges of the High Court of the Region or State shall be a person of the following qualifications:(f) who is not a member of a political party;

    and Judiciary Law S. 48(f)

    The Chief Justices of the High Court of the Region or State and Judges of the High Court of the Region or State shall fulfil the following qualifications:… (f) be a person who is not a member of a political party;

     for the Chief Justices and Judges of the High Courts; Constitution, S. 330(c)

    A member of the Constitutional Tribunal of the Union shall:… (c) if he is a member of any political party, he shall not take part in its party activities during his term, commencing from the day he has been appointed a member of the Constitutional Tribunal of the Union.

    and S. 333(f)
    The President, the Speaker of the Pyithu Hluttaw and the Speaker of the Amyotha Hluttaw shall select from among the Hluttaw representatives or among those who are not Hluttaw representatives with three members each who has the following qualifications… (f) person who is not a Hluttaw representative;
    for the Justices of the Constitutional Court.↵
  4. 34. Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar, Report to the Human Rights Council, UN Doc. A/HRC/22/58 (17 April 2013), para. 63.
    The Special Rapporteur sees no evidence that the judiciary is developing any independence from the executive branch of Government. While acknowledging that this will take time, he reiterates that an independent judiciary lies at the very heart of a system of government that respects the rule of law. He urges the Government to pay more attention to this aspect in Myanmar’s reform process, on which he has made previous recommendations (see A/66/365, A/67/383, A/HRC/19/67).
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