No justice reform without the Tatmadaw

The government keeps hyping the “rule of law” but it will be elusive until the criminal justice system is reformed, which will require the participation of the commander-in-chief.


A NEW directive from Chief Justice U Htun Htun Oo has significant implications for the judiciary. Directive 114/414 took effect on July 1 and was aimed at expediting existing cases that had faced unnecessary delays and ensuring that subsequent cases were completed within a certain period.

The move came as the judiciary continues to attract criticism from a public among which very few believe that court decisions are fair and just. A rich or well-connected plaintiff can, for instance, prolong a case for as long as they want to create difficulties for a defendant.

The directive took effect at a time when the alleged sexual assault of a toddler at the Wisdom Hill private nursery school in Nay Pyi Taw has generated nationwide outrage and revulsion. An angry campaign has demanded “Justice for Victoria”, the pseudonym for the girl, who was aged two years and 11 months at the time of the alleged assault on May 16.

After a month-long investigation a suspect who had earlier been cleared was re-arrested, but there is huge public dissatisfaction over the police handling of the case and protests have been held in Yangon, Mandalay and other cities.

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The judge in Nay Pyi Taw who will hear the case has tried to assuage public fury by promising to hand down a verdict acceptable to the people. “We are trying to run a court system that is dedicated to revealing truth … and I promise solemnly that you will be well satisfied with the court’s decision,” Dekkhina District Court judge U Nyo Htay told reporters in the capital on July 8, after acknowledging that the case had attracted national attention.

The integrity of Myanmar’s judicial pillar is widely perceived to have collapsed under a succession of military governments. Verdicts are handed down as directed by higher authorities and the court system is rank with the stench of corruption. It is common for defendants to pay bribes to police, prosecutors, lawyers, court officials and judges to secure a favourable verdict. Defence lawyers often act as brokers who mediate in the payment of bribes. It is little wonder that most citizens have no faith in the ability of the courts or the judiciary to deliver justice.

When the National League for Democracy came to power in 2016, it retained as chief justice Htun Htun Oo, a former military officer who was appointed to the position by the previous government. The NLD appointed as attorney-general U Tun Tun Oo, another former military officer who had served the previous government as deputy attorney-general.

The NLD government has repeatedly emphasized the importance of the rule of law and President U Win Myint has often held separate talks with the attorney-general and the chief justice to discuss and encourage the reform of the judiciary.

However, the government is aware of the need to tread carefully on the issue of judicial reform because of its need to respect the doctrine of the separation of powers, under which the three pillars of government – executive, legislature and judiciary – need to be kept apart.

Many of the cases that have generated the most criticism of the judicial system have been initiated by criminal complaints lodged by the Tatmadaw or the Myanmar Police Force. One of the most damaging for the image of the judiciary was the trial and sentencing of the Reuters journalists Ko Wa Lone and Ko Kyaw Soe Oo. Testimony given in the case that the pair were victims of entrapment was ignored when they were sentenced.

Other controversial cases include those brought against prominent filmmaker U Min Htin Ko Ko Gyi; seven members of the Peacock Generation thangyat troupe; former Tatmadaw captain Nay Myo Zin; the founder and executive director of the Sittwe-based Development news agency Ko Aung Marm Oo, who has gone into hiding; and Nanda, a reporter with Channel Mandalay, over coverage of a protest against a coal-fired cement plant.

They have each been charged with offences that are “non-bailable”, meaning a judge must decide whether to grant bail, which – as with these cases – is rarely granted in practice.

The abovementioned cases include breaches of the following sections of the Penal Code: 505(a), for inciting disunity in the Tatmadaw; 505(b), for inciting offences against the State; 133, for abetting an assault on a member of the Tatmadaw; and, 435, for arson. Charges are also being brought, in Aung Marm Oo’s case, under section 17(2) of the Unlawful Associations Act, for promoting or supporting a banned group.

The courts accepted all of these cases. Judges rarely exercise their discretion to either reject a malicious case or instruct the prosecution to amend the charge or charges against the defendant if they are clearly disproportionate.

In early June, the authorities in Kayah State arrested one of six youths wanted for their role in leading protests against the erection of a statue of Bogyoke Aung San in the state capital, Loikaw. The charges, under section 10 of the Law Protecting the Privacy and Security of Citizens, are being sought by the state government on May 16 over a statement issued by the six in March, in which they described the state’s chief minister and finance minister as criminals who had betrayed the Karenni people and also accused them of abusing their power. It is troubling to see a law that was seemingly written to protect private citizens from authorities being used by authorities against private citizens.

An effective overhaul of the criminal justice system requires far-reaching reform of the Myanmar Police Force, including the Criminal Investigation Department and the Special Intelligence Department known as Special Branch. The police force, which is under the military-controlled Ministry of Home Affairs, currently has overbearing influence over government prosecutors and judges, who are currently unable to pursue cases and pass judgements without fear or worry. Therefore, reforming justice will only be successful if it involves the participation of the Tatmadaw commander-in-chief.

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