Burma Lawyers’ Council

The fact that the Burmese military junta is ready to destroy the country’s judicial system if necessary to prolong its hold on power has been confirmed again by the mass removal of Supreme Court judges on 14 November 1998. Burma’s judicial system has posted its worst situation during the reign of the present military junta, the State Peace and Development Council (SPDC), formerly known as the State Law and Order Restoration Council (SLORC). The junta has been using the judicial system as a tool to protect its power and eliminate the democratic opposition movement.

"Legal warfare"

In fact, the recent reshuffle of Supreme Court judges is a direct effect of the "legal warfare" employed by the Committee Representing the People’s Parliament ("Representative Committee") formed by the National League for Democracy (NLD) and alliance parties. The committee was formed after a mass government crackdown following the NLD’s announcement of its plan to convene a People’s Assembly. The Representative Committee is to function as a legislature until the People's Assembly is convened.

The first action taken by the Representative Committee, immediately after its formation on 16 September 1998, was to publicize relevant legal issues. The committee has issued declarations, known nation-wide, stating that laws promulgated by the SLORC/SPDC after 1988 are of no effect until ratified by the People’s Assembly. The Representative Committee also repealed a series of repressive laws.

Previously, the NLD, which was mandated by the people in the 1990 elections to govern the country, had made it clear that many of the maneuvers by SLORC/SPDC were not in accordance even with the laws the junta had itself promulgated, including its failure to respect the Election Law.

The NLD also pointed out that some of the regime’s laws operate retrospectively, so that people who were innocent of any offence under the original law could later be declared to be guilty of an offence. The best example of this is the Law Amending the Election Law. This legislation enjoys retrospective effect and was promulgated only two years after the adoption of the original 1989 Election Law, under which the 1990 elections were held. Many elected people’s representatives have been prosecuted under this law, and some have been banned from standing in future elections.

After the massive defeat by the junta in the 1990 elections, it issued Order 1/90, which declared that the elected representatives were merely entitled to draft a constitution. In this way the junta sought to create legal justification for not handing over power. Law No. 5/96 limits the scope of Order 1/90, prohibiting the fight to draft a state constitution outside the military-controlled drafting process. The NLD has pointed out the conflict between these laws, and has stated that it will not comply with such laws.

In July of this year the NLD lodged a complaint with the Supreme Court against SPDC members at local levels about their illegal deterrence of NLD members, including elected representatives from travelling outside their home towns. The intention of the party's leaders was to expose the lack of independence of the judiciary, which is controlled by the junta.

Control of judicial independence by the Military Intelligence Service

There have been examples of Military Intelligence Service (MIS) officers, known as the brains of the present military junta, forcing judges at all levels to over-punish democracy activists. The arrest of a student a few months ago for discussing his ideas about the future constitution is one obvious example of how the MIS, on behalf of the government, has destroyed the independent role of the judges. The student argued in court that the expression of his ideas was in conformity with government policy, printed in the daily government newspapers. This policy states that "the emergence of a state constitution is the duty [sic] of all citizens." However, the MIS officials who monitored the trial process forced the judges to sentence him to seven years imprisonment.

The use of legal warfare by the NLD and the Representative Committee has at least damaged the unity of the judges. Some judges want to perform their tasks as legal professionals while others bow to pressure from the MIS so as to retain their appointments. Burmese opposition groups in exile have stated that they have received reports that the MIS is interfering with judicial discretion, especially in politically motivated cases. The Supreme Court judges were among those who suffered from pressure from the MIS.

The removal of five out of six judges in the Supreme Court led observers to understand that the military junta has no tolerance for independent judges. In fact the situation is even worse than international observers realize, as the removal of judges at lower levels is unknown to the international community.

It is notable that Supreme Court Chief Justice U Aung Toe is the only incumbent after the recent removals. U Aung Toe is a member of the Convening Committee for the National Convention that has been drafting a state constitution since January 1993. U Aung Toe, also a member of the recently-formed Political Affairs Committee headed by MIS chief and SPDC Secretary-1 Khin Nyunt, is known to play a crucial role in legalizing the political maneuvers of the junta.

Due process of law versus Mafia State

In addition to the lack of judicial independence, due process is not observed in the legal system generally. White the lack of due process makes the democratization process difficult, it will also have a serious effect on the business sector. Businesses laundering money, and those run by drug-lords, are now legalised in Burma. Many of these extend beyond Burma’s borders. Many observers have pointed out the involvement of the Burmese military in drug trafficking. The lack of due process means that some multi-national investors in Burma are not required to meet employment standards existing in countries where due process of law prevails. If due process of law is not restored soon, no one can guarantee that Burma will not become a land of state-sponsored Mafia business.

Going against regional trends

It is also important to understand that the Burmese military junta is leading the country in a different direction from that of the region, where judicial reform is being loudly called for. It is in the interests of Malaysians who are concerned with the arrest and trial of Mr. Anwar Ibrahim to push the government for judicial reform that will guarantee individual rights of all citizens. In fact, the judicial system in Malaysia is already much better than that of Burma. By agreeing to investigate the wealth and corrupt practices of former president Suharto, the Indonesian government has been forced to take some steps towards judicial reform.

Burma’s close relationship with these two countries demonstrates the junta’s desire to copy the social, political, economic and judicial systems operating in those countries. The Burmese military junta supported the so-called Asian Value advanced by Dr. Mahathir, a highly arguable and controversial sentiment at the international as well as the regional level. While Indonesians are expressing dissatisfaction with their authoritarian system of government, the Burmese military junta still dares to copy the Indonesian model of an authoritarian presidential system.

Many observers are expecting that the crises in Indonesia and Malaysia must be followed by reforms in their political and judicial systems that will pay full respect to constitutionalism and democracy. By contrast, Burma, where a serious struggle for the restoration of democracy is in its 11th year, is a country moving in a different direction from the common democratic trend in the region. As a result, Burma will be the country with the most oppressive regime in the ASEAN grouping.

It has become clear that the judicial system in Burma can no longer protect the rights of citizens. Instead the judicial system has been totally converted into a tool serving the military junta. Those who want to see democratization in Burma should also give serious attention to judicial reform, the necessity for which has been shown by the NLD and the Representative Committee.
(Source: Legal Issues on Burma Journal No. 3 May 1999)