Law ex­perts crit­i­cise lack of re­forms

The Myanmar Times - - News - AUNG KYAW MIN aungkyawmin@mm­

RE­SPECT for the rule of law con­tin­ues to be un­der­mined by the weak­ness of the ju­di­ciary, MPs and le­gal ex­perts agreed dur­ing a Novem­ber 27 con­fer­ence. Or­gan­ised by the For­mer Po­lit­i­cal Pris­on­ers So­ci­ety (FPPS), the event was cen­tred around one dis­cus­sion ques­tion: “Is the ju­di­ciary out of bal­ance with the other two pil­lars of sovereignty?”

Amyotha Hlut­taw MP U Htay Oo (NLD; Yan­gon 2) told par­tic­i­pants that, since the present Na­tional League for Democ­racy-led ad­min­is­tra­tion took charge, great changes had oc­curred in two branches of the gov­ern­ment, the ex­ec­u­tive and the leg­is­la­ture. But th­ese changes had not been matched by cor­re­spond­ing de­vel­op­ments in the courts and crim­i­nal jus­tice sys­tem. State Coun­sel­lor Daw Aung San Suu Kyi had re­peat­edly stressed the im­por­tance of the rule of law and the need for a strong ju­di­ciary, he said.

“This is some­thing the gov­ern­ment has yet to tackle,” he said.

The ques­tion was of par­tic­u­lar ur­gency in view of the re­cent rise in se­ri­ous crime, in­clud­ing mur­der and rape, par­tic­i­pants heard.

“Un­der the law, a per­son found guilty of child sex­ual molestation can be sen­tenced to life in prison. But it’s not clear that the crim­i­nal jus­tice sys­tem is prop­erly con­fig­ured to de­liver the best out­comes,” said the MP.

Le­gal ex­perts in at­ten­dance said the ju­di­ciary could func­tion only with the re­spect of the pub­lic. That re­spect had been one of the ca­su­al­ties of the mil­i­tary regime.

Re­tired deputy di­rec­tor gen­eral of the Supreme Court of the Union U Aung Win said, “How much re­spect for the rule of law can some of us have when we our­selves were po­lit­i­cal pris­on­ers?”

The elec­tion of U Thein Sein’s gov­ern­ment un­der the 2008 con­sti­tu­tion might have opened up prospects for the even­tual re­form of the ju­di­ciary, per­haps with as­sis­tance from over­seas, he said.

Checks and bal­ances among the three pil­lars of the state were re­quired for the proper func­tion­ing of each, speak­ers said. How­ever, one weak­ness of the 2008 con­sti­tu­tion was that it al­lowed the pres­i­dent to nom­i­nate Supreme Court judges with­out ref­er­ence to hlut­taw, even though the 1947 had al­lowed MPs a voice in the se­lec­tion.

At­tor­ney Ko Ni said a nec­es­sary check had thus been re­moved. “This rep­re­sents a weak­ness in the present con­sti­tu­tion,” he said, even though the 2008 char­ter guar­an­teed the free­dom and in­de­pen­dence of the ju­di­ciary. That meant that the ex­ec­u­tive should not seek to in­ter­vene in le­gal cases be­fore the courts, speak­ers said, and judges should be granted spe­cial pro­tec­tions along with their du­ties and re­spon­si­bil­i­ties.

Myan­mar inched up in the an­nual World Jus­tice Project Rule of Law In­dex. This Oc­to­ber, Myan­mar was ranked 98 out of 113 coun­tries stud­ied by the or­gan­i­sa­tion. Last year, it was 92nd out of 102. The na­tion’s worst score was in the Fun­da­men­tal Rights cat­e­gory, which mea­sures eight in­di­ca­tors in­clud­ing right to pri­vacy, due process of law and free­dom of re­li­gion.

In June, the In­ter­na­tional Com­mis­sion for Ju­rists, a rule-of-law NGO, pro­posed a 14-step agenda for re­form­ing the coun­try’s courts sys­tem, which has been weak­ened by decades of au­thor­i­tar­ian rule.

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