Writs but no Weapons? Administrative Justice in Myanmar

Writs but no Weapons? A Stocktake on Administrative Justice in Myanmar

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.

Citation: This article first appeared as Melissa Crouch (2014) 'Writs but no Weapons: A Stocktake of Administrative Justice in MyanmarInt’l J. Const. L. Blog, 12 November.


2015 (1) ABF (1) Academic Association (1) access to justice (1) ACICIS (1) ADB (3) administrative courts (1) administrative law (3) Ahmadiyah (1) Ahok (5) All Indian Law Reporter (1) Allah (1) amendment (3) American Bar Foundation (1) AMSEAS (4) anthropology (1) ANU (4) army (1) article (1) ASAA (3) ASEAN 360 (1) Asia (10) Asia Research Institute (1) Asia Society (2) Asian Development Bank (1) Asian law (7) Asian Law Centre (1) Asian Studies (1) AsianLII (2) Attorney General (2) AustLII (1) Australia (11) Australia-ASEAN Summit (1) authoritarianism (1) banking and finance (1) Bawaslu (2) blasphemy (8) blasphemy charges (1) Blasphemy Law (2) blogs (1) book (3) book chapter (1) book launch (3) book review (3) books (1) Buddhism (5) Buddhism and law (1) Buddhist law (1) Burma (57) Burmese language (1) Burmese students (1) Burmese translation (1) Business (4) call for papers (1) Canada (1) capacity building (2) Cause lawyers (1) Chicago (3) Christianity (1) citizenship (1) colloquium (1) commercial law (7) common law (2) comparative constitutional law (1) comparative law (1) conference (18) conflict (3) constitution (24) constitution-building (1) constitution-making (2) constitutional amendment (2) Constitutional Court (4) constitutional law (12) constitutional review (1) constitutional rights (1) Constitutional Tribunal (6) Constitutional Writs (1) Constitutionalism (2) constitutions (2) corporate law (2) course (1) courts (14) Crisis (1) Culture (1) Dan S Lev (3) database (1) death sentence (1) deference (1) delegation (1) democracy (8) development (1) divided societies (1) Economics (3) edited book (1) election (1) elections (9) electoral disputes (1) emergency powers (5) engagement (1) ethnic recognition (1) Ethnic rights (1) fatwa (1) Federal Court of Australia (1) Forum (1) global law (1) Global Politics and Religion (1) globalisation (1) governor (1) handbook (2) Harvard Law School (1) history (1) Hong Kong (1) Hong Kong University (1) Hooker (1) human rights (5) Human Rights Commission (1) ICON (2) IGD (1) IGLP (1) Indonesia (40) Indonesia Council (1) Indonesia Ulama Council (1) Indonesian studies (1) International IDEA (1) international law (1) international students (1) Interview (5) investment (1) IS (1) Islam (18) Islam and the state (1) Islamic law (1) Islamist (2) Jakarta (9) Jokowi (1) journal (3) journal article (6) judges (3) Judicial Colloquium (1) judicial independence (3) judicial review (1) judicial selection (1) justice sector (1) Ko Ni (1) korea (1) law (24) law and society (3) Law and Society Association (1) law faculty (2) law reform (3) Law School (1) lawyer (2) lawyers (2) lecture (1) legal culture (2) legal education (5) legal pluralism (1) legal process (1) legal reforms (1) Legal Training (1) Lev (1) local governance (1) LSA (1) Mainland Southeast Asia (4) major projects (1) Malaysia (2) marriage (1) military (3) minorities (1) moving (1) Muslims (8) Myanmar (119) Myanmar law (1) Naypyidaw (2) Nemo (1) New Constitutions (1) new year (1) newsletter (1) NLD (1) Northwestern (2) NUS (2) Oxford (1) panel (1) parliament (1) peace (1) peace process (1) people smuggling (5) Pluralism (1) podcast (1) podcasts (1) political Islam (1) Politics (8) politics of courts (1) President (1) principles (1) professional legal education (2) publication (1) radio interview (1) Rakhine State (4) rally (1) referendum (1) reform (4) religion (14) religious intolerance (1) report (5) reports (1) research centre (1) resources (1) Risks (1) RMIT (1) Rohingya (1) roundtable (2) rule by law (1) rule of law (4) scholars dialogue (1) scholarship (1) scholarships (1) section 144 (1) secularism (1) seminar (18) Shan State (1) Shi'a (1) Shi'ism (1) Singapore (5) social conflict (1) socio-economic rights (1) socio-legal studies (1) Southeast Asia (14) Southeast Asia; Islamic law; electives; UNSW Law; Rule of Law (1) Sri Lanka (3) State (1) statelessness (1) students (1) success (1) Supreme Court (6) Sydney (7) terrorism (1) Thailand (4) tolerance (1) training (2) transition (1) tribute (2) Trisakti University (1) U Ko Ni (4) UAGO (1) UNHCR (1) University of Indonesia (3) University of Melbourne (5) University of Sydney (1) University of Yangon (1) UNSW (29) UNSW Law (3) videos (1) violence (1) West (2) West Java (1) Windsor Faculty of Law (1) women (2) working paper (1) workshop (18) world bank (1) writs (2) Yangon (3)