The Judiciary in Myanmar

Abstract

The courts in Myanmar have been a topic of heated discussion in the post-2011 environment. Yet in contrast to many other areas of governance and administration, the courts are one sector where reform has been less evident or obvious. In fact, while many have been calling for greater judicial independence, the current framework in effect pulls in the opposite direction towards centralisation and executive-military control over the courts.

This raises the broader question: what is the role of the courts in Myanmar post-2011? The three top parallel courts in Myanmar are the Constitutional Tribunal, the Courts Martial and the Union Supreme Court. The Constitutional Tribunal is a new institution introduced in 2011, but has heard only about 11 cases, has been marginalised and therefore lacking in political influence. The Courts Martial are a black hole in terms of academic research, given the difficulties of obtaining access to information on these courts. The Supreme Court is therefore the most active, dealing with hundreds of cases per year, and is perhaps the most politically influential court of the three.

This chapter therefore focuses on the role and function of the Supreme Court, and the courts below it, under the quasi-civilian regime. The literature around the role and politics of courts, and of courts in authoritarian regimes, is vast and complex (see for example Ginsburg and Moustafa 2008). In this chapter I unpack the role of the courts in Myanmar and its relationship to the other institutions of governance. First, I show how the composition of the Supreme Court points to the influence of the executive over the courts. Second, the authority of the Supreme Court in terms of its original and appellate jurisdiction, and its reporting, law- making and supervisory functions are focused on keeping the lower courts in-line. Third, the new authority the Supreme Court has to hear cases concerning complaints against government decisions is a form of procedural authoritarianism to keep lower courts in check. Finally, I show how the court’s jurisdiction is subject to change by parliament, and recent legislation affecting family law will raise new and difficult social and legal questions for the courts in the future.

Keywords: Myanmar, executive-military control, Constitutional Tribunal, Courts Martial, Union Supreme Court, jurisdiction