Broken justice

Expectations are high among the legal fraternity that the change of government in April will lead to far-reaching reforms in a justice system that is decrepit, crooked and in the pocket of the military

by James Coe, Frontier, Myanmar, January 14

Law and justice are not synonyms and perhaps there are few in Myanmar who understand this better than Yangon-based human rights lawyer and political activist, U Robert Sann Aung, 61. For three decades he has battled against injustice as both a dissident and an ardent defender of free expression.

“The courts are afraid; the judges are afraid; the lawyers are afraid,” U Robert Sann Aung said, “so the biggest challenge [to justice] in Myanmar is fear.”

U Robert Sann Aung paints a dystopian portrait of Lady Justice in the world’s youngest democracy, where there is no Ministry of Justice and judicial independence is often called into question due to a prevalent culture of intimidation and bribery.

Suspects are routinely questioned without the presence of a lawyer when they can be pressured into making a confession, sometimes even under torture. “Little has changed since the times of Ne Win,” U Robert Sann Aung said, referring to the former dictator. “Sometimes the police will use their fists and sometimes sticks.” Under Section 164(3) of the Penal Code a magistrate cannot record a confession if he has reason to believe that it was made under duress. This, it is suggested, rarely happens.

If a case goes to trial the defendant’s lawyer is likely to attract unwanted scrutiny from the authorities. U Robert Sann Aung says that when lawyers try to file a political case they are often placed under surveillance by Special Branch police or military intelligence. If a lawyer tries to launch counter proceedings against the police over allegations of torture the judge will reject the move and the lawyer will likely be intimidated by the police or military intelligence.

“They [the military intelligence] are still very powerful,” U Robert Sann Aung said. “I get intimidated in most of my political cases. Sometimes they will telephone me and warn me to ‘be careful’.”

Since he began practising law in 1981, U Robert Sann Aung has been imprisoned for political crimes six times, a fact proudly listed on his business card. His most recent spell behind bars was in 2008, after he circulated a pamphlet critical of the junta. As is customary in political cases in Myanmar, the defence was given little time to prepare and the verdict was read out from a pre-sealed envelope. “The military will tell the judge how to punish [those found guilty] and by how much,” he said referring to his own trial, “because they are afraid of what they might do [to them otherwise].”

The Myanmar Police Force is under the Ministry of Home Affairs, one of three ministries controlled by the Tatmadaw, along with Defence and Border Affairs. Reformers say the MPF should be independent of the military.

“The fact that the military appoint the Minister for Home Affairs is totally wrong. The police must be put under civilian control,” said U Kyaw Min San, the National League for Democracy MP-elect for Bago Township.

“The military want the police under them so they can try and control the country. By using the police they think they can protect their interests, such as the hundreds of thousands of acres of land which they confiscated,” he said.

Prying the MPF from the Tatmadaw’s grip would require an amendment to the constitution that the non-elected military MPs – who have an effective veto over charter change – would be unlikely to support. They hold 25 percent of the seats in parliament and Section 436 of the constitution requires constitutional amendments to have the support of more than 75 percent of MPs.

“The rule of law is one of the main principles of the NLD,” U Kyaw Min San told Frontier. “For me, the independence of the judiciary is highly important because without an independent legal sector there cannot be the rule of law. So if we want to do this [put the police under civilian control], we need to make amendments to the supreme court next to Maha Bandoola Park in downtown Yangon. Photo: Aung Naing Soe Affairs Feature 14 FM constitution.”

As well as a lack of independence from the military, the justice system also suffers from being overly-complicated and underfunded.

Five systems of law apply concurrently in Myanmar: British Common Law from the colonial period, post-independence laws and decrees, socialist civil laws of the Ne Win era, laws from the military dictatorship period and the post-2011 parliamentary period.

Of the country’s 800 laws, more than 400 precede independence and have not been republished. Newer laws and regulations are published in newspapers but most cannot be retrieved electronically. Many of the country’s laws are, therefore, neither known nor accessible to many judges and lawyers. In this ocean of confusion, Myanmar’s judiciary tends to decide that the government is almost always right.

“The unfortunate reality, reported in case after case by my colleagues’ practice, is that a substantial number of Myanmar judgements favour one party, mostly the government position,” said Eric Rose, the lead director of the law firm, Herzfeld Rubin Meyer & Rose.

“For example, in bail hearings, these judges assume before the trial that the defendant has been engaged in an illegal act or omission simply because she or he is accused,” Mr Rose told Frontier.

 There is no trial by jury in Myanmar, despite a recommendation for its introduction by the Pyithu Hluttaw Judicial and Legal Affairs Committee in 2012. This leaves the accused at the mercy of a lone judge’s own persuasions or worse, pocket.

“While there are no statistics regarding instances of corruption, and it is very difficult to accurately measure, anecdotal evidence continues to suggest that it is widespread,” said Natalie Matranga from the Rule of Law project at the United Nations Development Programme.

“The causes of corruption are similar to those seen in other countries and include low salaries, the lack of a culture of independence and a lack of adequate resources and training,” Ms Matranga said.

Members of the judiciary have surprisingly low salaries. A township judge, for example, is paid about K250,000 (about US$200) a month. Bribery is considered an almost acceptable way to bolster one’s pay. Failing to pay a bribe, which is often negotiated between a court’s clerks and the lawyers, will result in either continued adjournments or a conviction.

“My lawyer will suggest that if I want to win the case I have to bribe the judge. If I don’t bribe him, I either won’t win or he will postpone my case until I pay,” said a claimant in a civil case who asked not to be named.

The claimant told of an overwhelming feeling of distrust in the court system. There was uncertainty about whether lawyers were pocketing some of the bribe intended for the judge, as well as whether the judge was being paid by both sides. Every adjournment is regarded with suspicion and slow progress is akin to a request for more bribe money. “It is very hard to trust anybody or anything in the courts,” the claimant said. “The best thing to do is to just try to avoid using them.”

In a 2013 report that called for the reform of the justice system, the International Commission of Jurists said the government had “significantly decreased” its interference in legal processes. The report’s recommendations included that action be taken against allegations of bribery and corruption in the legal system as well as the creation of an independent bar council to ensure that lawyers’ interests were better protected, but neither proposal has been implemented.

There are high expectations for the comprehensive reform of the justice system after a National League for Democracy government takes office on April 1. “I believe things will change,” U Robert Sann Aung told Frontier. “Our new leader [Aung San Suu Kyi] is no ordinary leader. She can do anything.”

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