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Introduction
One of the cardinal aspects of the Rule of Law is that of judicial
independence: that is the judicial branch of the government
should be free as much as possible from the influence and
dictates of the other branches of government. This article
discusses the concepts and practice concerning judicial
independence in Burma, especially since the time of
independence in 1948. Constitutional provisions concerning
the (non-)independence of the judiciary in the two defunct
provisions of the post-independence constitutions of Burm a*1,
namely the 1947 and 1974 constitutions will be analysed and
briefly commented upon. The focus of this article is mainly on
the post -1948 and post-1962 developments.2 Since parts of
Backw ards Towards the Past” (2000) 5 Asian Pacific Law and Policy Journal
<http:www.hawaii.edu/aplpj/l/05f.html>, pp 1-6.
3 M aung Maung, Burma in the Family o f Nations, Djambatan, 1956. The
statement w as made in the abstract (“Stellingen”) dated 27 June 1956 and at
Point 5 of the 10 point summary at the beginning of the book.
4 M aun g Maung, Burma’s Constitution, M artinus Nijhoff, The Hague, (revised
ed) 7 (foot note omitted).
5 M aung Maung, Note 4.
18 S o u th e rn C ro s s U n iv e rs ity L a w R e v ie w
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n a l H istory, A c t u a l P ra c tic e a n d F u t u r e P ro s p e c ts
6 M aung Maung, Law and Custom in Burma and the Burm ese Family, M artinus
Nijhoff, The Hague, 1963, p 24.
7 Note 6, p 25.
8 Some of D r M aung M aung’s writings in the p o st-1962 era about the ‘ills’ not
only of the British colonial judicial system bu t also the “bourgeoisie (post
independence) Parliamentary system” can be found in M aung Maung, Taya
Upadei Ahtweidwei Bahuthuta (General Law Knowledge) (Win M aw Oo
Publications, Rangoon, 1975) and also in the foreword to Taya Yone Myar Lett
Swei (Courts Manuals) of 1970, 1971, 1972, 1973. W h en the “General Law
Knowledge” w as published D r M aung M aung w as a m em ber of “The Council of
State,” an “Organ of State power” un der the defunct 1974 Constitution. W hen
the foreword to the Courts m anual w as written M aun g M aun g w as either Chief
Justice or Judicial Minister during the era of the Revolutionary Council (1962-
1974).
D r M aung M aung’s brief comments, in English, on the 1974 Constitution can
be found in Blaustein A P & Flanz GH, Constitutions o f the Countries o f the
World, Oceana Publications, New York, 1990, “Union of M yanm ar (formerly
Union of Burm a)” under the heading “Commentary”.
9 Taylor RH, The State in Burma, C H urst and Co, London 1987 at 104, 107.
20 S o u t h e r n C r o s s U n iv e rs ity L a w R e v ie w
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n s titu tio n a l H istory, A c tu a l Practice a n d F u t u r e P ro sp e c ts
Though the courts during the colonial era were not fully
independent their contributions in other areas of the law have
been notable. It was scholars from or those sponsored by the
British colonial administration which compiled, translated and
categorise the Dhammathats,10 And it was the British judges
who through their decisions interpreted and transformed them
into case law. During the British rule of the whole country the
decisions of appellate courts were compiled into various law
reports. These rulings, all of them in English, started with
Selective Lower Judgements of Lower Burma (SJLB) (1872-92).
The last series of Law Reports which compile the judgments of
11 See M aun g M aung, Note 3, at 146 for a list of Law Reports that were
compiled during the colonial era.
12 M aung M aung, Note 4.
13 Note 4 at 82.
22 S o u th e rn C ro s s U n iversity L a w R e v ie w
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n a l H istory, A c t u a l P ractice a n d F u t u r e P ro s p e c ts
As stated earlier the British did not actually and fully practice
judicial independence during their colonial rule of Burma.
Nevertheless it is also true that those who had their legal
training under the British were to a certain extent influenced
by “British lores and traditions” of judicial independence and of
“the executive, legislature and judiciary checking each other
and occasionally fighting with each other” in performing their
functions. Some of those thus influenced were among the
drafters of the 1947 constitution. It is in this context that the
underlying theory of judicial independence as derived from
British traditions found its way into the provisions of the 1947
constitution. Some of the provisions of the 1947 constitution
dealing with the independence of the judiciary and how they
were put into effect through case law by the Supreme Court of
Burm a in the 1940s and 1950s is considered here.
Section 140 (2) stated that “all the judges of the Supreme Court
and all the judges of the High Court shall be appointed by the
President ... with the approval of both Chambers of Parliament
in joint sitting”. Section 142(1) laid down the qualifications
necessary for appointment as a Supreme Court judge which,
among others, include experiences as a judge of the High Court
of Judicature of Rangoon (during the British times) or that the
person must be an advocate of the High Court of at least fifteen
years standing.
20 M aung Maung, Note 3, at 121. See also M aung M aung, Note 4, at 150.
21 General Ne W in took power in the military coup of 2 M arch 1962, and
retired from the Army on 20 April 1972 - hence his formal title became “U ”
instead of General - and he became the first President of the Socialist Republic
of the Union of Burm a under the 1974 Constitution on 5 M arch 1974.
24 S o u th e rn C r o s s U n iv e rsity L a w R e v ie w
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n s titu tio n a l H isto ry , A c tu a l Practice a n d F u tu re P ro s p e c ts
26 S o u t h e r n C r o s s U n iv ersity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u r a ia :
C o n s titu tio n a l H istory, A c t u a l Practice a n d F u tu re P ro s p e c ts
for doing so.27 More than 45 years after those arrested for
distributing leaflets that called the late U Nu’s government
“murderers and fascists” were freed by the late Supreme Court,
the students who honoured U Nu by singing democracy songs
at his funeral had no “Supreme Court” to turn to have their
convictions quashed.28
And again:
The President to whose judgment, wisdom and patriotism
the duty of amending the schedule has been entrusted
cannot relieve himself of the responsibility by choosing
another agency upon which the duty should be devolved;
nor can he substitute the judgment, wisdom and
patriotism of any other body for those to which alone the
Legislature has seen fit to confide the trust.35
32 A h Karri v U Shwe Phone & Others, 1952 BLR (SC) 222. The ruling w as
written in English. The sum m aiy of the case and the judgem ent by the late
Suprem e Court giving reasons why the President’s insertion of a new item to a
Schedule of the B u reau of Special Investigation Act is ultra vires can be found
in M aun g Maung, Note 4, at 152-153.
33 A h Kam v U Shwe Phone at 224.
34 A h Kam v U Shwe Phone at 225.
35 A h Kam v U Shwe Phone at 225-26.
28 S o u t h e r n C r o s s U n iv e rs ity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n s titu tio n a l H istory, A c tu a l P ractice a n d F u tu re P ro sp e c ts
It is true that there was “no major case” in which the late
Burmese Supreme Court did not declare an act of the
legislature as ultra vires as per the 1947 constitution. However
Maung Maung conveniently forgot to mention that the Supreme
Court had indeed held a Presidential act to be ultra vires as
discussed above in relation to the Supreme Court’ s decision in
the Ah Kham v. U Shwe Phone case. Moreover Maung Maung’s
statement w as a veiled criticism of and an implication that the
Burmese Supreme Court of the 1947 constitution was not
actually independent of the political arms of the then Burmese
government: an assertion that was totally contrary with all his
pre-1962 writings. Moreover, Dr Maung Maung who was a
visiting scholar at Yale Law School under the Ford Foundation
Fellowship (the programmes and links with the Ford
Foundation were abolished by General Ne W in soon after his
takeover of March 1962) from 1960 to 1962 should have been
aware that his claim of “US Supreme Court follow[ing] the
result of Presidential elections” is not quite correct. (Perhaps he
was and the more plausible comment on his statement as it is
on most of his statements regarding post-1962 legal and
political developments, is that it was reflective of a lack of
intellectual honesty and integrity.) In the 1930s until the
change of mind by Justice Owen Roberts in 1936, a
conservative US Supreme Court regularly struck down the
progressive social legislation of President Franklin Roosevelt.39
In parts of the decade of 1950s a liberal Supreme Court agenda
And again:
... the peoples of Burma keep going on the chosen path,
holding on to certain faiths and beliefs, placing their
hopes in the constitution and the essential goodness of
man. Whether they will reach the Promised Land, or
whether the circumstances of the outside world will let
them, it is for the future to tell.42
40 See for example the liberal agenda and legacy of the [Chief Justice Earl]
W arren Court during Eisenhower’s Presidency in Note 39, at 349-353.) It is
evident that, at least at times, “the U S Suprem e Court” does not always “follow
the result of presidential elections”.
41 M au n g Maung, Note 4, at 155.
42 Note 4 at 217. These are virtually the last sentences of the last edition of
M au n g M au n g’s book. Several months sifter its publication, internal events,
nam ely the military coup of 1962, signalled the demise of the 1947
constitution.
30 S o u t h e r n C ro s s U n iv e rsity L a w R ev iew
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n s titu tio n a l H isto ry , A c tu a l P ractice a n d F u tu re P ro s p e c ts
43 See 9 M arch 1962 issues of Rangoon’s The Guardian and The Nation for
news items concerning the abolition of Parliament.
44 See 31 M arch 1962 issues of The Guardian and The Nation for news items
concerning the abolition of the Supreme and High Courts.
45 See The State v Dosso. Pak LD (1958) SC 533. For a different view which, in
effect, overruled Dosso see Jilani v Government o f Punjab, Pak LD (1972) SC
319. In fact 41 years after the challenge of the laws issued by the 1958
militaiy takeover the legality of the 1999 Pakistani military takeover was
challenged in the Pakistani Supreme Court. See Nang Mo Kham Horn’s article
“’Revolutionary Legality’: The Coup d’Etat of 1962 and the Burm ese Military
Regime”, this volume, at footnote 4. The fact that spanning a space of over
forty years different challenges either to the laws issued by a military regime
(regarding the 1958 Pakistani military takeover) or the legality of the military
32 S o u t h e r n C r o s s U n iversity L a w R ev iew
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n s titu tio n a l H isto iy , A c t u a l P ractice a n d F u t u r e P ro s p e c ts
What are the laws which in effect ceased to operate when the
Revolutionary Council took over? All, or almost all, civil or
criminal laws that existed before its takeover continued to
operate. The laws that began to lose their effect are in the areas
of public law. Since all the major institutions that had existed
under the 1947 constitution ceased to exist, the previous
constitutional structure and the political and legal values it
embodied deteriorated if these were (at least gradually) not
altogether extinguished. The 1947 constitution was not
formally (ie by a decree or announcement of the Revolutionary
Council) abolished or even suspended. However, as stated
above, the Parliament and the Supreme and High Courts of
Burma -two of the main pillars of the 1947 constitution- were
abolished. This, in effect, ended the operation, functions and in
many cases relevance of all the major provisions of the 1947
constitution in the Revolutionary Council period. The 1947
constitution was formally superseded by the 1974 constitution
when the 1974 constitution came into effect.
48 SLORC Declaration No. 6/88, 24 September 1988. A s for the fact of most of
the laws remaining in force after both the 1962 and 1988 military takeovers
this observation from Margaret Davies, Asking the Law Question, (Law Book
Company, 1994) 84 is perhaps pertinent:
A revolution occurs whenever the legal order of a community is nullified
and replaced by a new order in an illegitimate way, that is in a way not
prescribed by the first order itself. The new legal order will have a new
basic norm. Kelsen notes that frequently many of the norms of the old
system will remain in force, but the reason for their validity will have
changed.
49 These writs as applied by the Supreme Court and High Court of B urm a from
1948 to 1961 are explained under the heading of “constitutional remedies” in
M aung M aung’s Note 4 at 98-104.
50 See, for example, M aung Maung, Note 4 at 100-101, describing the cases
and the conditions in which the Supreme Court had issued habeas corpus in
cases relating to preventive detention laws.
51 For an example of the late Burm ese Supreme Court in the year 1949,
ordering the release of detainees and/or ruling that preventive detention
orders were illegal, see case citations and discussions in text and notes
accompanying above notes 26, 30, and 31.
34 S o u th e rn C r o s s U n iversity L a w R e v ie w
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n s titu tio n a l H isto ry , A c t u a l P ractice a n d F u tu re P ro s p e c ts
(after all the Chief Justice of the late Supreme Court was in
“protective custody” during most of the 1960s) might have
prevented the judges of the Chief Court from exercising their
judicial functions independently. As stated earlier in preventive
detention and protective custody cases it is structurally
impossible for the Chief Court to exercise its independence by
ordering the release of hundreds of those who were in
“protective custody”, preventive detention or other forms of
detention without charge. From 1962 to the time the 1974
constitution w as adopted, the Chief Court was the highest
judicial arm of the government. It was also separate from the
Revolutionary Council, the legislative arm of the government
and the Revolutionary Government which is the executive in
the governmental structure during this period.
53 See 8 A ugust 1972 issues of The Guardian and The Working People's Daily.
54 See D r Htin Aung, “A Conversation with Princess-Leam ed-in-the-Law, Part
IF, 29 M arch 1974, Note 19, at p.2.
55 See Myint Zan, “Law and Legal Culture, Constitutions and
Constitutionalism in B urm a”, in Alice Tay (ed) East Asia: Human Rights, Nation-
Building, Trade, Nom os Verlagsgesellschaft, 1999, at 232-236.
56 This fact w as stated in an article by M aung Htiin Aung, “A Conversation
with Princess Learned in the Law Part I” 28 March 1974 of The Working
People's Dally (Rangoon), Note 19 at p 2.
57 It should be stated that fulsome praise for the “People’s Judicial System”
has emanated from the person who initiated the system himself. The late D r
36 S o u t h e r n C r o s s U n iv e rsity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n a l H isto iy , A c tu a l P ractice a n d F u tu re P ro s p e c ts
M aung Mating w as the initiator, and defender, both to Burm ese and
international audiences, of the “People’s Judicial System”. For a sum m aiy of
D r M aung’s M aung’s statements concerning the People’s Judicial System and
for discussion and refutation of his arguments, see Myint Zan “Law and Legal
Culture” n 55 at 232-36. A ndrew Huxley has, in his article “The Last Fifty
Years of Burmese Law: M aung E & M aung M aung” Law Asia (1996-1997) 9-
20, partially complimented some of the motives for the introduction of the
“People’s Judicial System”. He describes M aung M aung’s “reforms” as
“unBritish[ing]” the judiciaiy (at 14). (Note however that M aung M aung had
given fulsome praise about the ‘rule of law’ the British brought in his pre-1962
writings.) For a correction of one major error (among quite a few factual errors
in Huxley’s article) and this author expressing “philosophical disagreement”
with Huxley concerning M aung M aung’s sincerity and about his “socialism”
and M aung M aung’s motives in relation to his “judicial reforms” (in
introducing the People’s Judicial System) see Myint Zan, “Comment on Fifty
Years of Burmese Law: M aung E & M aung M aung in Law Asia (1996-1997) in
In Camera (1998) (Deakin University Law Student Magazine) at 39-40.
58 Huxley, see Note 57, at 15.
59 The Burm a Socialist Programme Party (BSPP) w as founded on 4 July 1962
with General Ne W in as its Chairman. In the first few years of its existence the
BSPP nominally allowed other parties to exist but on 23 March 1964 the
Revolutionary Council promulgated “The Law Protecting National Unity” which
banned all political parties except the BSPP. (For news items concerning the
“Law Protecting National Unity” see The Guardian and The Working People’s
Daily of 24 March 1964.) Article 11 of the 1974 Constitution stated that: “ The
State shall adopt a single Party system. The Burm a Socialist Programme Party
is the sole political party and it shall lead the State”. At the height of the 1988
uprising on 11 September 1988, the unicameral one party Legislature the
Pyithu Hluttaw “overcoming the [1974] constitution” suspended the operation
of Article 11 and decided to hold multi-party elections not earlier than “forty-
five days” and not later than “ninety days”. (For the resolution of the Pyithu
Hluttaw suspending Article 11 of the 1974 constitution and the decision to
hold multi-party elections see 12 September 1988 issues of The Guardian and
The Working People’s Daily.) O n 18 September 1988 the State Law and Order
Restoration Council took over power and on the same day it abolished by
decree “The Law Protecting National Unity”. (See 19 September 1988 issue of
The Working People’s Daily)
60 The author has described in more detail, the genesis, the “drafting”, the
“referendum” and adoption and certain aspects of the 1974 constitution in
“Law and Legal Culture” above Note 55 at 232-45.
38 S o u t h e r n C r o s s U n iversity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u rm a :
C o n s titu tio n a l H isto ry , A c t u a l P ractice a n d F u tu re P ro sp ects
The Supreme and High Courts under the 1947 constitution had
the power of judicial review and also the power to interpret the
constitution and the laws.65 As stated earlier, writing in 1992
Dr Maung Maung stated that “there has been no major case in
which the Myanmar Supreme Court [of the 1947 constitution]
has declared a legislative act ultra vires”66
62 It is to be noted that though the Burm ese term Poke-Ma w as used for both
Sections/Articles un der the 1947 and 1974 Constitutions, the English word
Section w as used in the 1947 Constitution and Article w as used for the 1974
Constitution.
63 U nder Article 43 of the 1974 constitution, “The regular term of the Pyithu
Hluttaw is four years from the date of the first session”.
64 M M T (pen name of U Myint Thein, see n 14, n 15, n 16 above), who w as the
last Chief Justice un der the 1947 constitution, wrote in April 1974 about U
A u n g Pe thus: “To have become a Divisional Com m ander at a young age shows
that he m ust be highly talented and w hen he applies those talents to the study
of law, he will surely become a great judge .... [however] there is need for
continuity of service for a jud ge and a smooth flow of judicial administration,
and therefore another fervent prayer of mine is that the Chairman will be re
elected at every new election until such time as he gets bored with listening to
the subm issions of learned counsel who will appear before him.” U A ung Pe
w as re-elected once in the second Pyithu Hluttaw and served as Chairman of
CPJ for about seven years.
65 See text and notes accompanying n 24-26.
66 See text and notes accompanying n 36-38.
40 S o u t h e r n C r o s s U n iv e rs ity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n al H istory, A c t u a l P ractice a n d F u tu re P ro sp e c ts
The author recalls that during his law student days in Burma
constitutional law was taught by a Burmese advocate who was
then a central committee member of the (single and ruling)
Burma Socialist Programme Party. The lecturer compared the
provisions of the 1974 constitution with those of the Eastern
European countries. He dictated67 to us that the concept of
separation of powers was a selfish action taken by the
capitalists and the bourgeoisie. An example was given of the
separation of powers concept under the Indian constitution.
The lecturer explained that when the Indian government (under
the late Indian Prime Minister Indira Gandhi) nationalised
major Indian banks, the banks argued in the Indian Supreme
Court that the Indian Parliament’s action of nationalising the
Banks was unconstitutional. The Indian Supreme Court,
consisting of capitalist judges, agreed, thus thwarting the
elected Indian Legislature’s socialist development plans.
Therefore, the lecturer asserted, the power to interpret the
constitution and the laws must be given only to the Legislature.
67 The word “dictate” is used here literally. The Lecturer “dictated” from
prepared notes. The comparisons were made with then Eastern European one-
party constitutions. The author clearly remembers that the Lecturer once
dictated “Yugoslovakia”. (He may have meant either Yugoslavia or
Czechoslovakia.)
deviated in any way from the wishes of the Pyithu Hluttaw and
the Party since all members of the CPJ were also members of
the Pyithu Hluttaw and the Party. The Judiciary thwarting the
wishes of the elected Legislature is only possible, and can only
occur, in a situation in which the Judicial arm of the
Government is separate from the Legislative arm, as in the
1947 constitution, and not when members of the Judiciary are
also members of the Legislature, as was the case under the
1974 constitution.
68 The text of the 1974 Constitution can be found in Blaustein & Flanz, Note 8,
under the heading “Union of M yanm ar (formerly Union of Burm a)”. In fact
when the 1990 edition was published Burm a did not then, as is still the case
in February 2001, have a constitution - the 1974 Constitution having come to
an effective end with the ascension of the State Law and O rder Restoration
Council on 18 September 1988. Blaustein & Flanz do reproduce Declaration
No. 2/88 (18 September 1988) of the State Law and Order Restoration Council
which abolished all "Organs of State Power” under the 1974 constitution bu t
they do not make it explicit that the 1974 constitution is no longer in force.
The text of the 1947 constitution can be found in all the editions of M aun g
Maung, Burma's Constitution (Note 4).
69 See the section on “The Extent of Judicial Independence in Pre-Colonial
Burm a” in “Judicial Independence in Burm a: No March B ackwards Towards
the Past" above Note 2 especially text and notes accompanying n 5.
42 S o u th e rn C r o s s U n iv e rsity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u rm a :
C o n stitu tio n a l History, A c t u a l P ractice a n d F u tu re P ro sp ects
74 It is not meant here to imply that most of the Burm ese who had voted for
the democratic parties in the elections of M ay 1990 were aware of, or
understood them even in their rudimentary forms, the issues of
constitutionalism or independence of the judiciary. Most of them would have
articulated their aspirations for democracy in less sophisticated ways. A un g
San Su u Kyi writes:
The people of Burm a view democracy not merely as a form of government
bu t as an integrated social and ideological system based on respect for the
individual. W hen asked why they feel so strong a need for democracy, the
least political will answer: W e ju st want to be able to go about our
business freely and peacefully, not doing anybody any harm, ju st earning
a decent living without anxiety and fear’. In other words they want the
basic hum an rights which would guarantee a tranquil, dignified existence
free from want and fear.
A un g San Suu Kyi, “In Quest of Democracy” in Freedom from Fear
and Other Writings, (ed Michael Aris) (Penguin, 1991) 167 at 173.
However Alice E -S Tay w as more specific in describing and analysing the
struggles of other peoples for democracy. And - it should be added - the
outcomes of such struggles has been more positive than those of the Burmese.
Describing the revolutions and uprisings that erupted in Eastern Europe in
from 1989 to 1991 Alice Tay wrote that the people of Eastern Europe were
struggling for free elections, the independence of the judiciaiy and the power
to interpret law and review both government legislation and government
action, and of entrenchment of fundamental rights and liberties of citizens as
maintainable against the state, its officials and organs [and for these causes
people] have rallied in Beijing and Shanghai, in the Baltic States, in Budapest,
Prague, Berlin and Leipzig, Timisoara and Bucharest.
See “Preface” in Tay AE & Leung CSC (eds), “Constitution-making and
Restructuring in the Present and Former Communist W orld”, (58/5) Bulletin o f
the Australian Society o f Legal Philosophy at iii.
75 See Myint Zan, “Law and Legal Culture” n 55 at 251-54.
44 S o u th e rn C r o s s U n iv e rsity L a w R ev iew
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n a l H istory, A c t u a l Practice a n d F u tu re P ro s p e c ts
The SLORC did abolish the “People’s Courts” system that was
in force since 1972. In any case it renamed the courts dropping
the terms “ People’s” in front of the names of the courts. The
author has also learnt - though it cannot be cited with
reference to published sources -that in non-political, non
security cases professional (ie judges with legal qualifications)
judges are presiding in the civilian courts. However in political
cases the defendants are tried in military tribunals and
courts.80 Even after the abolition of military courts the judges
do not and were not able to exercise any degree of judicial
independence. A jurist who has written a detailed report on
Burma: Beyond The Law stated that judges “were in practice
subjected to tight control by the SLORC at all times. Judges
enjoyed no tenure of office, and were under clear instructions
to take the lead from their military masters in the discharge of
their functions.”81 The International Commission of Jurists also
reported that most cases are tried in a summary manner and
verdicts are determined in advance of the trials.82 Another
46 S o u t h e r n C r o s s U n iv e rsity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n al H istory, A c t u a l Practice a n d F u tu re P ro sp e c ts
87 See for example SLORC’s former Foreign Minister U Ohn Gyaw’s speech at
the United Nations General Assem bly on 11 October 1994. (Sum m aiy of U
O hn Gyaw’s speech as provided in N ew Light o f Myanmar (NLM), as reported in
B urm a Press Sum m aiy (University of Illinois, Urbana-Cham paign, Issue 10,
October 1994 (hereafter quoted as NLM /BPS)
88 Excerpt from speech of Chief Justice U A ung Toe to the National Convention
in September 1994 as reproduced in NLM /BPS, October 1994, at 57.
89 See text and notes accompanying n 67-69.
90 U Aung Toe was, when the National Convention w as in session, the main
“clarifier” of the principles of the N CD C . A s of February 2001 the most recent
session of the National Convention w as held in M arch 1996.
91 NLM/BPS, September 1994, 58.
48 S o u th e rn C r o s s U n iv ersity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u rm a :
C o n stitu tio n al H isto ry , A c t u a l P ra c tic e a n d F u tu re P ro sp ects
The NCDC also states that “The President shall appoint the
person nominated by him and approved by the Pyidaungsu
Hluttaw [joint session of both Houses of Parliament as
envisaged in the NCDC] [as] the Chief Justice of the Union.”92
However in actual practice under the 1947 constitution, it is
Parliament which recommended and the President who
appointed the Chief Justice. In the NCDC, it would be the
President who nominates the Chief Justice for approval to the
Pyidaungsu Hluttaw. Moreover:
Pyidaungsu Hluttaw shall not have the right to reject the
person nominated by the President for appointment of the
Chief Justice of the Union unless it can clearly prove that
the person does not meet the qualifications for the post
[of] the Chief Justice of the Union [as] prescribed by the
constitution.
92Note 91.
93Note 91 at 59.
Thus the Chief Justice and Judges of the Supreme Court are:
to hold office ... unless asked to resign by the President of
the State or removed from office, or unless being removed
from office after impeachment in accordance with the
provisions of the constitution.96
94 The impeachment of the State President and Vice President can be initiated
by 2/3 of one H ouse of Parliament (Assembly) and the other House (Assembly)
investigates and again 2/3 of the investigating A ssem bly are needed to remove
the State President according to the N CD C . (An ‘unofficial’ translation of the
principles of the N C D C can be found in B urm a Lawyer’s Council, The Military
and its Constitution, M ay 1999). The particular provision concerning the
impeachment of the President is taken from this publication.
95 N LM /BPS, September 1994 at 60.
96 Note 95.
50 S o u t h e r n C r o s s U n iv e rs ity L a w R ev iew
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n a l H istory, A c tu a l P ractice a n d F u t u r e P ro sp ects
97Note 95 at 59. All of these provisions concerning “loyalty to the State and
citizens”, non-membership of a political party and minimum and maximum
age requirements were not mentioned in the 1947 or the 1974 constitution as
requirements to be appointed at the higher levels of the judiciary. A s for age,
all three Chief Justices of the Union who were appointed under the 1947
Constitution were in their late 50s or early 60s when they were appointed as
Chief Justices. In the fourteen years of the existence of the Supreme and High
Courts of B urm a under the 1947 Constitution there w as never an
impeachment of any of the Supreme or High Court Judges.
98For a reproduction of section 144 of the 1947 constitution see text preceding
note 20. For U Ne W in’s criticism of and comments on this provision of the
1947 constitution see text and notes accompanying text accompanying n 21-
24.
52 S o u th e rn C r o s s U n iv e rsity L a w R eview
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n a l H istory, A c t u a l P ractice a n d F u tu re P ro s p e c ts
the State which shall not affect judicial powers vested in the
Constitutional Tribunal and courts-martial”.102
54 S o u th e rn C r o s s U n iv e rs ity L a w R e v ie w
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n a l H istory, A c tu a l P ractice a n d F u tu re P ro sp e c ts
Conclusion
The evolution of both the concept and practice of judicial
independence in Burma since independence has indeed been a
rocky one. From 1948 to 1962, the judiciary in Burma was fully
independent. It made landmark decisions which revealed its
independence. Among those landmark decisions, the courts
upheld the citizenry’s rights, which were protected under the
1947 constitution. In the words of the late U Myint Thein, the
last Chief Justice to be appointed under the 1947 constitution,
“in the days of old” when these protected rights were violated,
107 See text and notes accompanying n 80, n 81, n 82, n 83.
108 See text accompanying n 87 above.
109 See text accompanying n 88 above.
110 M M T above n 19, (26 April 1974 issue of The Working People's Daily, p.20
111 Article 11 of the 1974 Constitution stated that “[tlhe State shall adopt a
single Party system. The B urm a Socialist Programme Party is the sole political
party and it shall lead the State”. This provision w a s in the Chapter entitled
“Basic Principles”.
56 S o u th e rn C r o s s U n iv e rsity L a w R e v ie w
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n stitu tio n a l H istory, A c t u a l P ra c tic e a n d F u t u r e P ro s p e c ts
116 N ew s Item “Give Democracy Time” by Tim Sebastian from Burma Net N ew s,
No. 1357.
117 For an argument that the notion of judicial independence can be found in
various legal cultures, including that of Burm ese, see text and notes
accompanying n 2, n 9, n 10.
118 “Give Democracy Time”. This statement w as m ade around the same time
w hen Foreign Minister U W in A u n g w as informing the United Nations General
Assem bly that “we fully subscribe to the hum an rights norm s enshrined in the
Universal Declaration of H um an Rights” and “that the government does not
condone any violations of hum an rights, and the type of democracy we
envision will guarantee the protection and promotion of hum an rights and that
... his government” is “willing and ready to receive sensible suggestions and
take whatever action we possibly could” to promote hum an rights. A s for D r
Kyaw W in ’s comment about “geographical divide” the U N Secretaiy-General
Kofi A n n an has stated that “It w as never the people who complained of the
universality of hum an rights, nor did the people consider hum an rights as a
W estern or Northern imposition. It w as often their leaders who did so”. United
Nations High Commissioner for H um an Rights <http: / Avww.unhrchr.ch>
(accessed on 30/10/99).
119 See the author’s more detailed arguments on the technical difficulties that
had to be overcome in establishing the practice of judicial independence in
Myint Zan, “Law and Legal Culture” note 55, at 277, fn 336.
58 S o u th e rn C r o s s U n iv e rs ity L a w R e v ie w
J u d ic ia l In d e p e n d e n c e in B u r m a :
C o n s titu tio n a l H istory, A c t u a l P ractice a n d F u t u r e P ro s p e c ts