—Melissa Crouch, National University of Singapore and University of New South Wales (from December 2014)
The former Chief Justice Ba U of the Supreme Court of Burma once described the constitutional writs as ‘weapons’. The early years of independence in Burma were a time of significant judicial activism, when the Supreme Court did not hesitate to strike down executive decisions that were beyond the powers of decision-makers or that infringed on the rights of citizens. It also did not hesitate to grant applications for habeas corpus in situations of unlawful detention.
A year ago, I wrote about the striking developments that had taken place in terms of the constitutional writs in Myanmar, a country in which citizens had virtually no opportunities to bring complaints against the government to court from the 1970s to 2011.
A significant number of cases continue to be lodged with the Union Supreme Court of Myanmar, and over 500 applications have been lodge since 2011. This means that there have been far more writ cases lodged with the current Supreme Court (2011-) than there were with the previous Supreme Court (1948-1962) during the period of parliamentary period.
Several of these writ cases have been reported in the Myanmar Law Reports, which is a government-run annual publication that publishes a small number of Supreme Court decisions per year. While only six cases have been reported so far, all of these cases were unsuccessful.
There are three key features evident from these cases. First, all the cases concern the decisions of a lower court. While this is one possible function of the writs, it does suggest that the main role of the Supreme Court at present is to supervise decisions of lower courts, rather than decisions of the executive.
Second, all cases concerned general procedural issues unrelated to substantive administrative law issues. For example, some court documents were incorrectly signed, or cases breached the time limitation under the Limitation Act 1909.
The third feature of these cases is that the decisions do exhibit a basic understanding of the constitutional writs as common law remedies. There is an evident understanding of the concept of jurisdiction and the need for the court to consider whether a government agency has acted beyond its jurisdiction.
Although no reported cases were unsuccessful, the media published the decision of a successful writ application in 2013 that related to an economics professor from East Yangon University who had been unfairly dismissed. The applicant was successful in this case and this decision was welcomed by the legal profession.
Yet the growing number of writ cases has attracted the attention of the Union Parliament, and this has led to debate over the last two years about how the Supreme Court should handle these cases. In mid-2014, these parliamentary debates resulted in the passage of the Law relating to the Writs Procedure, which sets out the details of the court procedure in these cases. In particular, it requires that a bench of three judges must consider every writ application, and that the Chief Justice must sit as one of the judges on every case.
Finally, in my previous post I highlighted an unreported case that was heard by the Supreme Court and concerned the application of habeas corpus of a woman from Kachin State who disappeared three years ago. The woman, Sumlut Roi Ja, was arrested on the pretext that she was affiliated with an illegal organisation (an ethnic army), yet she has not been seen by her family since. The Supreme Court dismissed the case on the basis that the military said they did not have her in their custody.
Recently, some civil society groups have refused to recognise the decision of the Union Supreme Court and have called on the government to conduct an inquiry into the disappearance of Sumlut Roi Ja. The unresolved fate of Sumlut Roi Ja is a sobre reminder that it is still the weapons of the military, rather than the independence of the courts, that prevail in Myanmar.
Suggested citation: Melissa Crouch, Writs but no Weapons? A Stocktake on Administrative Justice in Myanmar, Int’l J. Const. L. Blog, Nov. 12, 2014, available at: www.iconnectblog.com/2014/11/writs-but-no-weapons-a-stocktake-on-administrative-justice-in-myanmar/