Myanmar’s legal system faces monumental problems, ranging from poorly qualified judges and lawyers to corruption and interference by the executive.
WITH THE near-constant focus on events in northern Rakhine State of late, it’s easy to forget that Myanmar faces a staggering array of other challenges. And then sometimes a helpful reminder arrives – such as a recent report released by NGO Justice Base.
The travails of Myanmar’s judicial system are well known. There are a huge number of issues, ranging from poorly qualified judges and lawyers to corruption and interference by the executive.
It is often difficult, though, to get a clear picture of quite how parlous the situation is – and whether it’s improving.
There is a range of reasons for this. First is simply the large number of courts. No single organisation, or network of organisations, has the resources to properly observe their activities.
Despite rules that courts be open to the public, in practice judges and other officials often seek to restrict access, making it difficult to monitor their activities. Earlier this year, when Frontier covered the trials of activist Ko Michael Kyaw Myint, our reporter, photographers and cartoonist were routinely denied access to courtrooms by presiding judges.
Just as importantly, though, the media and human rights groups tend to cover few cases in detail – typically, those with some sort of political angle (of course, any case involving a member of the media profession is followed closely). The humdrum of everyday proceedings are mostly absent from these accounts.
But this week we gained an insight into the workings of courts in Yangon Region thanks to the work of Justice Base, an international organisation that promotes the rule of law. Monitoring in Myanmar: An Analysis of Myanmar’s Compliance with Fair Trial Rights describes the findings from observing hundreds of sessions in Yangon township and district courts between 2013 and 2016.
There are countless examples of judicial malpractice or, at best, poor practice. The judge hearing three cases simultaneously (one criminal, two civil); inattentive, even sleeping, judges; a judge browbeating a defendant into pleading guilty.
Perhaps the single, most depressing anecdote in the report is that of the defendant whose case was repeatedly stalled because a police officer repeatedly failed to attend court to give evidence, despite being summoned. The Justice Base report states that the frustrated defendant eventually paid money to ensure that the officer came to testify and the case could move forward. Paying money at any time to influence the activities of a court is a bad sign. But when you have to pay money to have someone testify against you, you know things are really rotten.
It’s hard not to be outraged at the injustices documented in Monitoring in Myanmar.
What is perhaps most depressing, though, is that many defence lawyers who were involved in hearings observed by Justice Base did not seem to share this sense of outrage. For a range of reasons, they tended to ignore or overlook the abuses taking place in Myanmar’s criminal justice system.
Another striking facet of the report is the lack of reform or positive changes. The previous government and parliament – as well as senior judges – spoke regularly about the need for judicial reform, but it seems this was mostly bluster.
The monitoring took place over the course of three years, in two phases. If reform was really taking place, you’d expect some discernable improvement. Sadly, that doesn’t seem to be the case. It’s an indictment of not only the legal profession, but also the Union Solidarity and Development Party and National League for Democracy governments.
Some necessary reforms, such as improving standards of legal knowledge or expanding the size of courtrooms, will take many years to implement.
But other issues raised in Justice Base’s report can be addressed very quickly, through instructions by the Attorney General’s Office or Supreme Court to lower courts, coupled with effective monitoring.
Too often, the status quo is preserved through excuses about lack of financial or human resources.
But we are talking about the most basic principles of justice here. Halting proceedings when a judge leaves the room; allowing independent monitoring of hearings; ensuring all detainees are informed of their right to a lawyer immediately upon arrest or detention.
If Myanmar can’t get even these basics right, it’s hard not to conclude that more ambitious elements of the judicial reform process are doomed to fail.
This editorial originally appeared in the October 5 edition of Frontier.