BURMA: Institutionalized denial of fundamental rights and the 2008 Constitution of Myanmar
1. The case decided against democracy party leader Daw Aung San Suu Kyi and co-accused this August 2009 brought to
global attention the institutionalizing of fundamental human rights abuse through what the Asian Legal Resource Centre
(ALRC) has characterized as Myanmar’s “injustice system”. Although global outrage was expressed at the politically
contrived manner in which the proceedings reached their inevitable conclusion, the trial was in many respects typical of
hundreds, perhaps thousands, of others in recent years, many of which the ALRC has studied and documented in detail.
These features included the following:
a. Inapplicability of charges: Leaving aside questions over whether or not the house arrest of the accused in this case
was legal at all, the charges against the defendants were inapplicable as the order against Aung San Suu Kyi did not
include anything to prohibit her from communicating with someone already in her house. Many other cases heard against
opponents of the government in Myanmar also rest on inapplicable and baseless charges. The police, who may receive
interrogation files from military personnel and be ordered to frame charges without ever having had contact with an
accused, often appear at a loss to identify an offence. For instance, in the case of Aung Aung Oo and three others
(Bahan Township Court, Felony No. 442/09, under trial, Judge U Khin Maung Htay presiding), the accused were charged with
an arms offence but during the preliminary trial process the charge was instead changed to intent to cause public fear
or alarm: an offence used when the police can fin d no other. In the case o
b. Violations of basic criminal procedure: Judges from two districts heard the case against Aung San Suu Kyi and her
co-accused. This is a fundamental breach of criminal procedure, which requires that a judge of a jurisdiction hear a
case against an accused in the jurisdiction where the alleged offence occurred. There is no provision of law for mixing
judges of different jurisdictions. The case also was heard in a closed court which only select persons were allowed to
attend: again, there is no basis in law for trying someone in this manner; however, the trying of opponents to the
present government in this way is the norm, not the exception. The ALRC is not aware of any such case in recent years
that has been conducted in an open courtroom. In fact, in the case of Aung San Suu Kyi and her co-accused there was more
openness than in many such cases. Very often family members and also lawyers are denied access to courtrooms. For
instance, in the case of human rights defender U Myint Aye and two co-accu
c. Problems with witnesses: The court in the case of Aung San Suu Kyi initially allowed only one defence witness and
thereafter on request to a higher court, a second witness. By contrast, the prosecution presented some 17 witnesses, of
whom 11 were police and the others were immigration and council officials. Defendants in trials of this sort in Myanmar
are routinely unable to present witnesses. It is also common to find that the only witnesses for the prosecution are
police and other officials; and ordinary civilian witnesses, where present, are not genuinely independent but appear for
the police as professional witnesses. For instance, in the case against U Tin Min Htut and another, who were accused of
writing a letter to the United Nations Secretary General in which they criticized the government and the manner in which
the international community has treated the situation in Myanmar (Yangon West District Court, Felony Nos. 138 & 140/09, decided 13 February 2009, Judg e U Tin Htut presiding),
2. Together these points speak to the first of two fundamental problems with the judicial system in Myanmar with which
the international community must come to terms if it is going to say or do anything useful about the human rights
situation there, rather than simply decry the unfair trials of a few prominent individuals. The judiciary is in its
present form an appendage of executive authority. Unless its structurally and functionally subordinate position is
addressed, it will continue to act as an instrument for the violation of rights rather than their defence. Under these
circumstances, calls for the courts to decide cases fairly and in accordance with international standards are completely
meaningless. In such cases, the courts in Myanmar are not even capable of complying with domestic standards, and nor
should they be expected to be, because they are performing an executive function, not a judicial one: i.e. their role is
to imprison government opponents rather than uphold the law.
3. The second point that the international community has so far failed to grasp concerning criminal injustice and its
relevance to debate on human rights in Myanmar is that the patterns of bad behaviour developed through the types of
cases given above have a flow-on effect into the system as a whole. In ordinary criminal cases the ALRC has observed the
same sorts of incorrectly applied charges, consistently broken procedure, lack of evidence and forced confessions. These
types of behaviour persist in ordinary cases in part because they are learned in the course of the sorts of politically
directed cases described above. But in ordinary cases the concern is not with correct application of executive
directions in lieu of law, but instead with obtaining the best price from the highest bidder. Among persons working in
and familiar with the legal system in Myanmar it is known as a justice-trading system. However, some persons working for
international agencies in Myanmar either misunders tand or pretend to misund
4. These features of institutionalized abuse, and the need for more effective study and critique rather than simple
condemnation of specific acts of wrongdoing are of special relevance in the current period, when the government of
Myanmar has indicated that it plans to hold an election, perhaps in 2010, after which the 2008 Constitution of Myanmar
will come into effect. The response of many in the international community on learning of the re-confinement of Daw Aung
San Suu Kyi this August was to condemn the expected election as a farce, for reason of her non-involvement. But the
problems associated with the electoral process need to be studied in terms of the institutional contradictions to which
her case points rather than in terms of its personalities. The deeply flawed 2008 Constitution further entrenches
arrangements for abuses of the sorts outlined above, and any serious attempts from the international community to take
up issues of concern to the people of Myanmar in the lead up to and after the anti
a. Un-separation of powers: The constitution in section 11(a) separates the branches of government only “to the extent
possible”. This absurd clause effectively un-separates powers and makes a mockery out of claims to judicial
independence. The constitution must guarantee full separation of the judiciary from other parts of state before the
courts can be considered anything other than subordinates of the executive.
b. Army as constitutional defender: Section 20(f) assigns main responsibility to the Defence Services, rather than the
judiciary, for defence of the constitution. This is despite the establishing under the charter of a constitutional
tribunal. How the army is supposed to perform the task is not explained. This nonsense provision must be removed and
responsibility for the constitution must be placed in the hands of the courts before the constitution can be described
as a supreme law at all.
c. Rule of law as a function of the executive: Under Schedule One the rule of law and the police force are both placed
under the Union Defence and Security Sector. In other words, both maintenance of law and policing are assigned to the
armed forces. This is another blanket provision that ensures the continued militarization of the state and subordination
of the judiciary to military interests.
d. Presidential power over judges: The power to appoint, promote and remove senior judges ultimately lies with an
executive president who in turn, the constitution ensures, must be someone approved by the armed forces. The sections of
the constitution pertaining to this power must be amended to remove this authority and instead an independent judicial
services commission or equivalent must be established for this purpose.
e. Qualified rights: Apart from the arrangements in the constitution identified above that serve to negate statements of
rights in the constitution, the formal statements themselves are consistently qualified and undermined. For instance,
the right to be brought before a magistrate within 24 hours, which already exists under ordinary criminal procedure, is
defeated through a lengthy opaque clause in section 376 exempting cases concerning national security, the rule of law,
peace and tranquility and the interest of the public. Other sections are similarly imprecise and repeatedly allow only
for qualified, not guaranteed rights “in accordance with the law”.
5. The above observations and recommendations are made with awareness that the Government of Myanmar will anyhow
override provisions of the constitution in the same way that it has consistently overridden those of the ordinary law to
the extent necessary to achieve its objectives, but are made on the basis that the constitution as a normative document
should provide some bases for commitments to protect human rights, against which it is possible to measure a
government’s actual record of respect, protection and fulfillment. The present document provides no such bases. The
international community needs to use cases and issues arising in the present day, like that of Daw Aung San Suu Kyi, to
probe, critique and explore the institutional features of abuse and how they will be reconfigured under the planned new
arrangements for government after an election of some sort, rather than simply criticize the individual cases of
prominent persons as if they are somehow isolated from the structure and functions o
About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general
consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the
Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and
human rights issues at the local and national levels throughout Asia.
ENDS