Myanmar's Transition: Openings, Obstacles and Opportunities

14. The “New” Supreme Court and Constitutional Tribunal: Marginal Improvement for Judicial Independence or More of the Same?

14 THE “NEW” SUPREME COURT AND CONSTITUTIONAL TRIBUNAL Marginal Improvement or More of the Same? Myint Zan On 30 March 2011 a “new” Burmese government was sworn in. A sevenmember Supreme Court and nine-member Constitutional Tribunal are among the new organs of state formed under the 2008 Constitution that “came into operation” with the new government.1 This chapter addresses the issue of whether, under the new government, there has been some improvement in relation to the Burmese judiciary, or whether the situation is much the same as before (that is, during the period from September 1988 until March 2011). The term “new” is used for both the Supreme Court and for the Constitutional Tribunal. In Burma there have been various “Supreme Courts”, or apex courts, since independence.2 To put these “new” developments into perspective, therefore, it is necessary to give a brief history of the apex courts over the period since independence, if only to explain the use of the term “new”. As for the Constitutional Tribunal, 250 Myint Zan it is indeed a new organ of state, since a similar political or legal institution has not previously existed in contemporary Burmese legal history.3 The first part of this chapter deals with the “new” Supreme Court, the second part with the new Constitutional Tribunal. THE “NEW” SUPREME COURT, WITH FLASHBACkS TO FORMER COURTS The Supreme Court formed under Burma’s 1947 Constitution, which lasted from 4 January 1948 to 31 March 1962, was Burma’s first Supreme Court. From April 1962 a new apex court came into operation, initially with the name of “Chief Court” in English, but in the late 1960s its name was changed back to “Supreme Court”. This second apex court lasted from 1 April 1962 to 4 March 1974, when the Council of People’s Justices was formed. Soon thereafter the Central Court of Justice (third apex court) was formed. (Both were established under the 1974 Constitution, which had been proclaimed as adopted by the then Revolutionary Council on 3 January 1974.) Like its predecessor, the first Supreme Court, the Central Court of Justice came to an end by military decree, on 18 September 1988 (see Table 14.1). For the sake of comparison, it is the fourth apex court, which lasted from 28 September 1988 to 30 March 2011, that will be the main focus in gauging whether this newest Myanmar Supreme Court represents “some TABLE 14.1 Apex Courts In Burma/Myanmar, 1947–2011 Supreme Name Start date End date Head of Government Courts First Supreme Court January 1948 March 1962 Prime Minister U Nu Second Chief Court April 1962 March 1974 Head, Revolutionary Council, General Ne Win Third Central Court March 1974 September President U Ne Win of Justice 1988 Fourth Supreme Court September March 2011 Senior General Than Shwe 1988 Fifth Supreme Court March 2011 Ongoing President U Thein Sein Source: Compiled by author. The “New” Supreme Court and Constitutional Tribunal 251 improvement” or “more of the same”. Comparisons will be made between the methods of appointment and removal of justices, and lack of security of tenure in both periods. Before embarking on this task a brief comparison might be made between the first Supreme Court and the fifth (current) Supreme Court from a historical perspective. Let us pretend that it is 1948, not long after the formation of the first Supreme Court. What would have been expected of this new apex court? The first 100-day period following the formation the new Supreme Court in 1948 saw significant developments in terms of the exercise of the independence of the judiciary and the protection of civil rights, especially through the issuance of writs. In terms of the quality and learning of the judgements, there were also significant developments and landmark rulings. Therefore, in 1948, there would have been grounds for optimism and great expectations, fully justified, regarding the new Supreme Court. What is the current prognosis for the new Myanmar Supreme Court in 2011? Have there been hopeful signs and positive developments in the new Supreme Court of 2011, as there were in the first post-independence Supreme Court of 1948? For the new Supreme Court, the answer is categorically in the negative, and assuredly this situation is unlikely to change in the future.Abrief comparison with a few landmark cases decided by the first Supreme Court may illustrate this thesis. One of the peculiar characteristics...