The courts
Individual Documents
Description:
"This article compares the annual Law Reports of the first year of Burmese independence in 1948
with those published in the fiftieth year of Burmese independence (1998). In making the comparison,
the author highlights the fundamental changes that occurred in the structure and composition of the
highest courts in Burma, along with relevant background and factors effecting these changes.
There was a movement away from the predominant use of English in 1948 towards judgments
exclusively in Burmese in the 1998 Law Reports. Burma?s neighbours, who shared a common law
legal heritage, did not follow this trend after their independence. This shift, combined with Burma?s
isolation from the rest of the world, makes analysis of Burmese case law from the past three and a
half decades very difficult for anyone not proficient in the Burmese language. This article tries to fill
the lacunae as far as the Law Report from the fiftieth year of Burma?s independence is concerned."
Myint Zan
Source/publisher:
Victoria University of Wellington Law Review (Vol. 35, Issue 2)
Date of publication:
2004-00-00
Date of entry/update:
2014-08-21
Grouping:
Individual Documents
Category:
The courts, Legal history and philosophy of Burma (texts and commentary), Case Law - Burma/Myanmar Law Reports (texts and commentary)
Language:
English
Format :
pdf
Size:
255.02 KB
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Description:
"Why do authoritarian rulers establish special courts? One view is that they do
so to insulate the judiciary from politically oriented cases and allow it contin-
ued, albeit limited, independence. In this article I present a contrary case
study of an authoritarian regime in Burma that used special courts not to
insulate the judiciary but to defeat it. Through comparison to other Asian
cases I suggest that the Burmese regime?s composition and character better
explain its strategy than does extant judicial authority or formal ideology. The
regime consisted of war fighters for whom the courts were enemy territory.
But absent popular support, the regime?s leaders could not embark immedi-
ately on a radical project for legal change that might compromise their hold on
power. Consequently, they used special courts and other strategies to defeat
judicial independence incrementally, until they could displace the professional
judiciary and bring the courts fully under executive control..."
Nick Cheesman
Source/publisher:
Law & Society Review, Volume 45, Number 4 (2011)
Date of publication:
2011-00-00
Date of entry/update:
2014-08-18
Grouping:
Individual Documents
Category:
The courts
Language:
English
Format :
pdf
Size:
155.56 KB
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Description:
CONCLUSION:
"Where the role of the courts is to assist in a state programme, rather than
check executive power, policy directives can be implemented through the
judiciary in the same way as through the administrative bureaucracy. By
contrast, systems like those in Sri Lanka or Nepal may be defective and
compromised but judges in them do still adjudicate more according to the
terms of law than according to the dictates of executive officers. Ironically,
a corrupted policy-implementing judicial system like that in Myanmar
can be mistaken for an efficient system in contrast to its functionally
separate counterparts, because its efficiency derives from the carrying out
of orders and urgency to make money through the exercise of authority,
not from integrity or professionalism of the sort that courts in other
countries struggle to achieve, however imperfectly and half-heartedly.
This is the real incongruity of habeas corpus as an element in the 2008
Constitution of Myanmar. Habeas corpus is premised on the idea that
courts have the power to compel soldiers, police and other officials to
follow their orders. In Myanmar, where the judiciary is a proxy for the
executive, judges have this power only where they have the approval and
backing of higher executive authorities. Whereas in certain authoritarian
settings the courts have retained nominal legal power over other parts of
government but have been unable or unwilling to exercise it at certain
times because of extenuating circumstances, in Myanmar the problem is
much more basic. Myanmar?s courts don?t have effective authority over
other parts of government at all. Their capacity to review the activities of
state agencies and agents is limited to what the executive permits them.
Under these circumstances, not only is the reintroducing of habeas corpus
a figment but so too is any constitutional commitment to protect the
individual, because all such legal commitments are delimited by higher
administrative imperatives. Only where legal and administrative objectives
coincide can the former prevail.
The incongruity of habeas corpus in the new constitution percolates
throughout the charter?s contents, and through the extant state institutions
that will be responsible for establishing new institutions in accordance
with its terms following general elections. Where the armed forces rather
than the judiciary have responsibility to safeguard the constitution and
uphold the rule of law, statements of citizens? rights are perverse. Where
the state has subordinated legality to policy and detached policy from
any coherent ideology, no amount of technical or procedural rearranging
can effect significant change. Because the new constitution is a vague
expression that is not binding on its guardian, ultimately it contains no
guarantees, whether for a political detainee, an ordinary under-trial
accused or anyone else."
Nick Cheesman
Source/publisher:
"Ruling Myanmar From Cyclone Nargis to National Elections", Institute of Southeast Asian Studies (ISEAS), Singapore, pp. 90-111
Date of publication:
2010-08-25
Date of entry/update:
2014-08-18
Grouping:
Individual Documents
Category:
National and State constitutions, draft constitutions and amendments (commentary), The courts, Political prisoners and other violations in Burma - reports
Language:
English
Format :
pdf
Size:
177.47 KB
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Description:
CONCLUSION:
"The public transcript on corruption in Myanmar?s judicial system does not
aim primarily to address practices identified as corrupt, but to affirm an
elite self-portrait in which the dominant group appears innately superior
to its subordinates. Its model of probity is a judicial officer who follows
orders as required, who pretends to subscribe to the values of official
propaganda, and who successfully maintains the appearance of being free
from practices identified as corrupt.
In exchange for going along with the public transcript, the elite grants
conditional concessions to the interests of subordinates. Subordinates
interpret and accommodate these concessions through the language and
practices of the hidden transcript. The hidden transcript sustains its public
counterpart to the extent that legal professionals find it in their interest to
give the appearance of compliance, but the hidden transcript also inverts
and undermines much of the public transcript, even as it seemingly
accommodates it, and underneath it prickles with rancour at the hypocrisy
of senior officials who preach virtue as they practice vice..."
Nick Cheesman
Source/publisher:
Myanmar?s Transition: Openings, Obstacles and Opportunities, Institute of Southeast Asian Studies (ISEAS), Singapore, pp. 231-248
Date of publication:
2012-00-00
Date of entry/update:
2014-08-18
Grouping:
Individual Documents
Category:
The courts
Language:
English
Format :
pdf
Size:
339.11 KB
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Source/publisher:
Pyidaungsu Hluttaw
Date of publication:
2013-07-29
Date of entry/update:
2014-06-05
Grouping:
Individual Documents
Category:
Pyidaungsu Hluttaw: Laws and bylaws/rules/regulations proposed (bills) and/or adopted in 2013, Laws, decrees, bills and regulations relating to the judiciary (texts), The courts, Burma/Myanmar laws, decrees and regulations (Pyidaungsu Hluttaw), 2013
Language:
English
Format :
pdf
Size:
140.08 KB
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Source/publisher:
Pyidaungsu Hluttaw
Date of publication:
2013-07-29
Date of entry/update:
2013-12-01
Grouping:
Individual Documents
Category:
Pyidaungsu Hluttaw: Laws and bylaws/rules/regulations proposed (bills) and/or adopted in 2013, The courts, Laws, decrees, bills and regulations relating to the judiciary (texts), Burma/Myanmar laws, decrees and regulations (Pyidaungsu Hluttaw), 2013
Language:
Burmese (မြန်မာဘာသာ)
Format :
pdf
Size:
42.93 KB
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