Constitutional Writs as “Weapons” in Myanmar?

—Dr. Melissa Crouch, Postdoctoral Fellow, Law Faculty, National University of Singapore

In 2011, Myanmar began its transition to democracy under a civilian-military led government. The process has taken place within the framework of the 2008 Constitution and it has been followed by a range of legal and institutional reforms. One of the important features of the Constitution is that it “re-introduces” constitutionally entrenched writs. This raises the question: what difference can constitutional writs make in transitional regimes?[i]

The Attorney General’s Office is paying renewed attention to the writs in this transitional period. In February 2013, a seminar on the prerogative writs was jointly organized by the Union Attorney-General and the International Court of Justice in Naypidaw, Yangon. This is remarkable because it is only one of a handful of workshops hosted by the Attorney General’s Office with international partners since the transition. It has broken the absence of public discourse on the prerogative writs by government agencies.

This is no doubt in response to the significant increase in the number of administrative law cases that have been taken to the Supreme Court. Some sources inside the Attorney General’s Office have put the number of applications between 2012 and 2013 as high as 300. This number appears reasonable in light of the case lists for court hearings in June 2013, which listed 29 court cases for the writ of certiorari.[ii] So how does this compare to the period of parliamentary democracy from 1948 to 1962, in which the writs were constitutionally entrenched?

At independence, the 1947 Constitution conferred power on the Supreme Court to issue the constitutional remedies of habeas corpus, mandamus, prohibition, quo warranto and certiorari.[iii] The constitutional writs were seen as the “means of which this court is empowered to protect and safeguard the person and property of the citizens of the Union”.[iv] From independence in 1948 to the military coup in 1962, there were over 250 reported writ cases, with the writ of certiorari invoked most frequently during this period.[v] The approach of the court in upholding individual rights and limiting government action was summed up in one case in which Chief Justice U Ba characterized the constitutional writs as “weapons”.[vi]

The constitutionally entrenched writs were inevitably affected by the drastic changes to the legal framework from 1962 after the military coup. The Revolutionary Council abolished the existing structure of the judiciary and established the Chief Courts in its place. The frequency of writ applications dropped in the 1960s. By August 1972, the judiciary had been completely domesticated with the introduction of the People’s Judicial System, and the replacement of all professional judges with lay members.

In 1974, a new socialist Constitution was adopted. The Chief Court was abolished and replaced by the Central Court of Justice. Legislative, executive and judicial power merged. Little changed 14 years on when, in September 1988, the military junta took power and established a new court system, but did not reinstate the authority of the Supreme Court to hear writ cases.

It is only now that rights to the writs were re-introduced in the 2008 Constitution.[vii] The writs have been sought in relation to the conflict in Kachin State. For example, in February 2012, an application was made by a Kachin man on behalf of his wife. She had been illegally detained while working on their maize plantation in Kachin State in October 2011,[viii] on suspicions that she was a member of the Kachin Independence Army, the only armed group still in conflict with the government.

On 4 November 2011, the husband sent a letter to the Chief Minister of Kachin State for her release, but received no response. In February 2012, the husband lodged a case with the Supreme Court. The applicants’ case rested on several constitutional provisions.[ix] First, he argued that no citizen can be placed in custody for more than 24 hours without a warrant from the court, and that no warrant had been issued in relation to his wife. Second, every citizen enjoys equality before the law, and he argued that his wife had been treated unfairly. Third, the government has a duty to protect the ‘life and personal freedom’ of his wife, and given that she was not a member of the KIA, there was nothing in the existing law that provided an exception to this right. The applicant emphasized that his wife was a citizen of Burma and that she is of Kachin ethnic group, a recognized ethnic nationality.

The application was short on legal argument, but in terms of case law it did rely on two court rulings of the Supreme Court from the early years of independence. The first was referred to as an example of a case where a wife was granted standing and made a successful application for habeas corpus for release of her husband who had been detained for one year and eight months.[x] The lawyer cited it in support of the husband’s right to bring this case on behalf of his wife. The second case was referred to for the principle set out by the Supreme Court that a person has the right to freedom from unlawful arrest.[xi] The applicant emphasized that there had been no legal basis for the arrest of his wife.

Ultimately, it was reported that the husband’s application was rejected by the court in this case on the grounds that there was no evidence that the army had taken her into its custody before her disappearance. The family has still not been able to locate the wife to date.

What does this case tell us about the effect of applications for constitutional writs in the absence of judicial independence? For the husband, the case was a futile exercise that failed to discover even the location of his wife or confirm whether she is still alive.

From the perspective of the lawyers involved, however, the answer may be slightly more nuanced and suggest an incremental step forward. They perceived the mere opportunity to bring the case to the Supreme Court and receive a hearing to be significant in itself. The act of reintroducing the constitutional writs in the 2008 Constitution had confirmed their existence and removed a level of uncertainty about the relevance of the common law.

Even if it can be seen as a small step forward, it remains true that the fate of the constitutional writs in Myanmar are tied to the broader direction of the legal system, which depends on the release of the judiciary from executive-military control. A process of constitutional amendment is currently in progress, and the need to clarify the separation of powers and the independence of the judiciary is a key part of this agenda. If this does provide a window of opportunity for such a change to take place, then perhaps the writs may be able to truly emerge as ‘weapons’ in Myanmar once again.