The Legal System of the Republic of the Union of Myanmar in a Nutshell

By Kyaw Hla Win @ Md. Hassan Ahmed & Md. Ershadul Karim

Kyaw Hla Win @ Md. Hassan Ahmed had been a lecturer of law at Management & Science University (MSU). Currently, he is a part-time lecturer of law at University of Malaya (UM) as well as International Islamic University Malaysia (IIUM) and also a Doctoral candidate in the area of international law at International Islamic University Malaysia (IIUM).

Md. Ershadul Karim  is a non-practicing lawyer of Bangladesh Supreme Court and the Editor of Chancery Law Chronicles, the first Online Database of Bangladesh Laws and currently a Doctoral Candidate in Nanotechnology Law and Policy in the University of Malaya, Malaysia.

Published September 2013

Read the Update!

1. Introduction

The Republic of the Union of Myanmar (hereinafter ‘Myanmar’), formally known as Burma, is a sovereign State in Southeast Asia bordered with Bangladesh, India, China, Laos and Thailand. Its coastline is bordering from the Bay of Bengal to the Andaman Sea between Bangladesh and Thailand. It has a total of 261,227 sq miles (676,578 sq km) territory which approximately consists of 252,319 sq miles (653,508 sq km) land territory and 8,907 sq miles (23,070 sq km) coastline. It is constituted with seven Regions as well as States and Union territories, namely, Kachin State, Kayah State, Kayin State, Chin State, Sagaing Region, Taninthayi Region, Bago Region, Magway Region, Mandalay Region, Mon State, Rakhine State, Yangon Region, Shan State, Ayeyawady Region and Nay Pyi Taw as the Union territory. Nay Pyi Taw is also the current capital city of Myanmar

and Yangon, the former, remains as the commercial capital city. According to the Central Intelligence Agency, Myanmar is rich of natural resources such as antimony, coal, copper, hydropower, lead, limestone, marble, natural gas, petroleum, precious stones, timber, tin, tungsten, zinc and so forth. The society of Myanmar is multi-ethnic as well as multi-religious in nature and Burmese is the official language. It politically practises multi-party democratic system. Its legislative power, executive power and judicial power are separated for the purpose of reciprocal control, check and balance among themselves. These three branches of sovereign power are shared among the Union, Regions, States and Self-Administered Areas

.

2. A Brief Legal History

2.1 During the Reign of Monarchy

Before the British occupation, Myanmar was ruled by absolute monarchs [“Thet Oo San Pine” system in Burmese language] and thus Kings hold the supreme power in executive, legislative and judiciary. In the executive function, the King was the highest authority and assisted by ministers (Wonmin), mayors (Myosar), town-chiefs (Thanbyin), village-headmen (Kalan, Ywarsar) and government servant (Luhlin Kyaw). The sole legislative power was vested to the King and he was assisted by the Parliament (Hluttaw). The King was also the highest authority in judiciary and assisted by the Supreme Queen, Crown Prince, Princes as well as ministers in the parliament, judges appointed by the king, mayors, town-chiefs and village-headmen. In the ancient time, the practice of “trial by ordeal” was common and most criminal punishments were fines. There were only four types of crimes punishable by death penalty, i.e., murder, rebellion, insurgency and rape.

For more information, visit here.

The beginning of the formal judicial system in Myanmar can be traced back to the epoch of Bagan dynasty (849-1287 A.D). There were three primary sources of law, namely, yazathat, dhammthat and phyat-htone. “Yazathat” means the King’s Royal Edicts and Ordinances which composed of King’s command and criminal laws. “Dhammthat” is derived from the “Hindu Dharmashatra” (treaties on law) which later formed as Myanmar Customary Law.[1] Phyat-htone means the judicial decisions made by the King’s Hluttaw and various Benches and Courts in the country.

2.2 During the British Occupation

In 1886, the British established the Court of Judicial Commissioner for the Upper Myanmar in Mandalay. The Court of the Lower Myanmar was established in 1990 as the highest appeal court. In 1922, the High Court of Judicature of Yangon was established after the abolishment of the aforesaid two judicial organs. Sub-Divisional Courts, District Civil and Session Courts, and Township Courts were also established with specific jurisdiction. Besides, the British introduced several criminal as well as civil laws including the Indian Penal Code (1860), the Criminal Procedure Code (1862), the Indian Evidence Act (1872) and the Civil Procedure Code (1859).[2]

2.3 After Independence

Even after the independence on 4th January 1984, Myanmar continues to apply the common law legal system as its basis.[3] The Supreme Court, High Court and other subordinate Courts were established at different levels under the Union Judiciary Act of 1948. The Supreme Court was the highest court as well as final appeal court throughout the Union and its decisions were binding over all other courts. In 1962, the Revolutionary Council abolished the former judicial system and formed the Chief Court to be in line with socialism. In 1974, it further introduced a new Constitution under which the Central Court, the State and Divisional Courts, the Township Courts, the Wards and Village Tracts courts were established.

In 1988, the State Law and Order Restoration Council enacted the Judiciary Law to transform the aforesaid socialist judicial system. The Supreme Court and High Court were re-established in the same year. In 2000, this was again repealed by the Judiciary Law by the State Peace and Development Council in transforming the formation of courts.[4] Lastly, in 2010, the Union Judiciary Law had been enacted to adopt the current judicial system under the 2008 Constitution.

3. Executive Organ

The Government of Myanmar is basically formed with the President; Vice-Presidents; Ministers of the Union and the Attorney General of the Union

. The executive power of the Union is distributed among the Union, Regions, States and Self-Administered Areas as prescribed by the Constitution. The executive head is the President who takes precedence over all other persons throughout the Union [sections 58, 199, the 2008 Constitution]. The President may appoint as well as dismiss the Ministries of the Union Government and designate the number of the Union Ministers as necessary with the approval of the Pyidaungsu Hluttaw [sections 202, 232, 233, 234, 235, the 2008 Constitution]. He may further appoints the Attorney General of the Union to seek legal advice and assign duties on legal matters, with the approval of the Pyidaungsu Hluttaw, and Deputy Attorney General to assist the Attorney General [sections 237, 239, the 2008 Constitution].

The Region and State Government is formed respectively with the Chief Minister of the Region or State; the Ministers of the Region or State; the Advocate General of the Region or State

. Generally, these region or state governments have the responsibility to assist the Union Government in preserving the stability, peace, tranquility and prevalence of law and order of the Union

. The President appoints a Hluttaw representative as the Chief Minister of the Region or State concerned with the approval of the respective Region or State Hluttaw

.

The administrative body of a Self-Administered Division or Self-Administered Zone is called the leading body

which comprised of at least 10 members

. The President has to appoint the person who is nominated as the Chairperson of the Self-Administered Division or the Self-Administered Zone concerned

. As for the administration of Nay Pyi Taw, the Union Territory, the President has to form a Nay Pyi Taw Council and appoint persons who have the qualifications prescribed in the 2008 Constitution as Chairperson as well as members of Nay Pyi Taw Council [sections 284 and 285, the 2008 Constitution].

4. Legislative System

The legislative authority is vested in the “Pyidaungsu Hluttaw” (The National Parliament) which comprises of the two Hluttaws, namely, the “Pyithu Hluttaw” (The People’s Assembly or House of Representatives) and the “Amyotha Hluttaw” (The National Assembly or Senate)

. The Pyithu Hluttaw is formed with with a maximum of 440 seats comprises of not more than 330 representatives elected on the basis of township as well as population and not more than 110 representatives who are the Defence Services personnel nominated by the Commander-in-Chief of the Defence Services

. The Amyotha Hluttaw is formed with a maximum of 224 seats comprises of 168 representatives elected in equal numbers from Regions as well as States and 56 representatives who are the Defence Services personnel nominated by the Commander-in-Chief of the Defence Services

.

4.1 Legislative Process in the Pyidaungsu Hluttaw

The Pyidaungsu Hluttaw has the power to enact laws for the entire or any part of the Union related to matters prescribed in Schedule One of the Union Legislative List

. Other matters not enumerated in the legislative list of the Union, Region or State and Self-Administered Division Leading Body or Self-Administered Zone Leading Body fall under the legislative power of the Pyidaungsu Hluttaw

. It can also enact laws relating to the Union territories when it is necessary

.

Any union level executive body has the power to submit the bills relating to matters which they administered among the matters included in the Union Legislative List to the Pyidaungsu Hluttaw. However, bills relating to national plans, annual budgets and taxation are required to submit exclusively to the Pyidaungsu Hluttaw

. A bill submitted to the Pyidaungsu Hluttaw, except those under the exclusive legislative power of the Pyidaungsu Hluttaw, is still entitled to initiate and discuss at either the Pyithu Hluttaw or the Amyotha Hluttaw

.

If a Bill initiated in the Pyithu Hluttaw or the Amyotha Hluttaw is approved by both Hluttaws, it shall be deemed that the Bill is approved by the Pyidaungsu Hluttaw. If there is a disagreement between the Pyithu Hluttaw and the Amyotha Hluttaw concerning a Bill, the Bill shall be discussed and resolved in the Pyidaungsu Hluttaw

.

A bill which is approved or deemed to be approved by the Pyidaungsu Hluttaw will then be sent to the President for his signature. He has to send the bill back to the Pyidaungsu Hluttaw with his signature or comments within 14 days. If he does not do so within the prescribed period, the bill can be promulgated on the next day after the completion of that period and thereby the bill will become a law

. When the President sends back the bill together with his comments within the prescribed period, the Pyidaungsu Hluttaw may accept his comment and resolve to amend the bill or to approve as it is without accepting his comments. In either case, the bill will be sent back to him for his signature. If the bill is not signed by the President within seven days, it will become law as if he had signed it on the last day of the prescribed period

.

A bill signed by the President or deemed to have been signed will need to be published in the official gazette. Finally, the bill becomes a law on the day of publication itself, nevertheless, without prejudice to the power of Parliament to postpone the operation of any law or to make laws with retrospective effect

.

The Pyidaungsu Hluttaw also have the power to make resolution on matters relating to ratifying, annulling and revoking any international, regional or bilateral treaties; and may confer the authority to the President to conclude, annul and revoke any kind of said agreements without the approval from it

.

4.2 Legislative Process in the Pyithu Hluttaw and the Amyotha Hluttaw

After the enactment of any rule, regulation, or by-law by the Pyidaungsu Hluttaw, the relevant executive body may distribute and submit the said legislation to its representatives of the Pyithu Hluttaw or the Amyotha Hluttaw and thereby representatives may move to annul or amend the said legislation within 90 days from the day of submission and distribution. If there is any disagreement between the Pyithu Hluttaw and the Amyotha Hluttaw with regard to annul or amend any legislation, it shall be submitted to the Pyidaungsu Hluttaw [sections 137 and 157, the 2008 Constitution].

A Bill submitted by any Union level organization are deemed to be initiated in the Pyithu Hluttaw and discussed as well as resolved in the Pyithu Hluttaw if it is sent in accordance with the prescribed procedures of the Pyidaungsu Hluttaw

. If a Bill submitted by any Union level organization is sent to the Amyotha Hluttaw in accordance with prescribed procedures of the Pyidaungsu Hluttaw, it shall be deemed that such Bill is initiated in the Amyotha Hluttaw and thus shall be discussed as well as resolved in the Amyotha Hluttaw

. Bills relating to other matters, except the matters stated in the Schedule One of Union Legislative List where the Bill shall be submitted and passed exclusively by the Pyidaungsu Hluttaw, can be initiated in either the Pyithu Hluttaw or the Amyotha Hluttaw in accord with the prescribed procedures

. A bill passed by one house shall be sent to other house to continue to discuss and resolve it [sections 138 (c) and 158 (c), the 2008 Constitution].

After receiving a Bill sent to the other house, the house in which the bill is originated may resolve to agree or disagree, or agree with amendments and the bill shall be sent back to the other house together with its resolution. When the house in which the bill is originated accepts amendments made by the other house, and then send it to the Pyidaungsu Hluttaw. If there is any disagreement between two houses relating to a bill, it shall take the resolution of the Pyidaungsu Hluttaw [sections 139 and 159, the 2008 Constitution].

4.3 Legislative Process in the Region Hluttaw or State Hluttaw

Each of the fourteen major administrative regions and states has its own Hluttaw, namely, Region Hluttaw (Region Assembly) or State Hluttaw (State Assembly) [sections 49 and 161, the 2008 Constitution]. The Region or State Hluttaw have the power to enact laws for the entire or any part of the Region or State related to matters prescribed in Schedule Two of the Region or State Hluttaw Legislative List

. However, any legislation made by the Region or State Hluttaw has to be in conformity with the Constitution and the relevant Union law

.

4.4 Legislative Process in the Self-Administered Division and Self-Administered Zone Leading Bodies

Self-Administered Division or the Self-Administered Zone Leading Bodies are vested the legislative power relating to the matters listed in the Schedule Three for respective Divisions or Zones

.

5. Judiciary

Courts of the Union are established under the 2008 Constitution and these include the Supreme Court of the Union, High Courts of the Region, High Courts of the State, Courts of the Self-Administered Division, Courts of the Self-Administered Zone, District Courts, Township Courts and the other Courts constituted by law; Courts-Martial; and Constitutional Tribunal of the Union

. On the 28th October 2010, the Union Judiciary Law [Hereinafter “The Union Judiciary Law 2010”] was enacted to implement judicial works of aforementioned courts in the present Judicial System [Preamble, The Union Judiciary Law 2010].

An informative presentation on the Judicial System and Court Proceedings in Myanmar can be found here.

5.1 The Supreme Court of the Union

The Supreme Court is the highest Court of the Union without prejudice to the jurisdiction of the Constitutional Tribunal and the Courts-Martial

. The Court is situated in Nay Pyi Taw and headed by the Chief Justice of the Union. There may be appointed from a minimum of seven and a maximum of eleven judges of the Supreme Court including the Chief Justice [sections 299 (a) and (b), the 2008 Constitution]. The President can appoint the Chief Justice and Judges of the Supreme Court after seeking approval from the Pyidaungsu Hluttaw which has no right to refuse the person nominated by the President for the appointment unless it can clearly be proved that the persons do not meet the qualifications for the post [sections 299 (c) and (d), the 2008 Constitution].

The Supreme Court has original jurisdiction in matters arising out of bilateral treaties concluded by the Union; in disputes, except the Constitutional problems, between the Union Government and the Region or State Governments, or among the Regions, among the States, between the Region and the State and between the Union Territory and the Region or the State; piracy and other offences committed at ground or international water or airspace by violating international law; and in other matters as prescribed by any law

. It has the appellate jurisdiction to decide judgments passed by the High Courts of the Regions or the States and judgments passed by the other courts in accord with the law

. It also has the revisionary power over any judgment or order passed by any subordinate court

and the jurisdiction on confirming death sentence as well as appeal against the death sentence

. It further has the Jurisdiction to transfer a case from a Court to itself or to any other Court

. It possesses the power to issue Writ of Habeas Corpus; Writ of Mandamus; Writ of Prohibition; Writ of Quo Warranto; and Writ of Certiorari. However, this power to issue writs is suspended in the areas where the state of emergency is declared

. The decisions of the Supreme Court are final as well as conclusive and thus it is the final court of appeal in the entire Union

.

5.2 High Courts of the Region and High Courts of the State

A high court is established for every Region and the State of the Union

. Each High Court is headed by the Chief Justice of the High Court of the Region or the Chief Justice of the High Court of the State. There may be appointed from a minimum of three and a maximum of seven judges including the Chief Justice of the High Court

. The President can appoint the Chief Justice and the Judges of the High Court, in co-ordination with the Chief Justice of the Union as well as the Chief Minister of the respective Region or State, after seeking approval from the respective Region or State Hluttaw which has no right to refuse the person nominated by the President for the appointment unless it can clearly be proved that the persons do not meet the qualifications for the post

.

Every High Court of the Region or State has jurisdictions to adjudicate on original case, appeal case, revision case and other matters prescribed by any law

. It has the appellate jurisdiction on the judgements, decrees and orders passed by all other subordinate courts

. It also has the power to supervise District Courts as well as Township Courts in the Region or the State and Court of the Self-Administered Division as well as Court of the Self-Administered Zone if there is Self-Administered Areas in the Region or State

. It further has the jurisdiction to transfer a case from a Court to itself or to any other Court within the respective Region or State

. It has unlimited jurisdiction to hear and decide both criminal and civil suits.

Read more about the High Courts of the Region and High Courts of the State, here.

5.3 District Courts, Courts of the Self-Administered Division and Courts of the Self-Administered Zone

District Courts, Courts of the Self-Administered Division, and Courts of the Self-Administered Zone have the jurisdiction to hear both criminal as well as civil cases, appeal cases, revision cases and other matters prescribed by any law

. The respective High Court of the Region or State supervises the appointment of Judges at this level of Courts

. Judges at this level are granted the right to try serious criminal cases and civil suits not exceeding 500 million Kyats under original jurisdiction.

5.4 Township Courts

Township Courts have the jurisdiction to try both criminal as well as civil cases and other matters prescribed by any law

. The respective High Court of the Region or State supervises the appointment of Judges at this level of Courts

. These levels of courts are mainly courts of original jurisdiction. Judges at this level can pass a sentence up to seven years imprisonment. They can try civil suits in which the amount in dispute or value of the subject matters is not exceeding 10 million kyats. They also exercise jurisdiction over juvenile cases.

Read more about Township Courts here.

5.5 Courts-Martial

The Courts-Martial are established under the 2008 Constitution in order to adjudicate Defence Services personnel

.

5.6 The Constitutional Tribunal of the Union

The Constitutional Tribunal of the Union is formed with nine members, i.e., three members chosen by the President, three members chosen by the Speaker of the Pyithu Hluttaw and three members chosen by the Speaker of the Amyotha Hluttaw, and one member from among nine members to be assigned as the Chairperson [sections 320, 321, the 2008 Constitution]. It essential functions are to interpret the provisions under the Constitution, decide constitutional disputes in the Union and review whether the laws promulgated are in conformity with the Constitution

. The President can appoint the Chairperson and its members after seeking approval from Pyidaungsu Hluttaw which has no right to refuse the persons nominated by the President for the appointment unless it can clearly be proved that they are disqualified for the post [sections 327, 328, the 2008 Constitution].

The President, the Speaker of the Pyidaungsu Hluttaw, the Speaker of the Pyithu Hluttaw, the Speaker of the Amyotha Hluttaw, the Chief Justice of the Union and the Chairperson of the Union Election Commission have the right to submit any constitutional matter to the Constitutional Tribunal and seek for the interpretation, resolution and opinion

. Besides, the Chief Minister of the Region or State, the Speaker of the Region or State Hluttaw, the Chairperson of the Self-Administered Division Leading Body or the Self-Administered Zone Leading Body, and Representatives numbering at least ten percent of all the representatives of the Pyithu Hluttaw or the Amyotha Hluttaw may also have the right to submit constitutional matters to the Constitutional Tribunal in accordance with the prescribed procedures and obtain the interpretation, resolution and opinion

. A Court, which submits any case involving constitutional issue to the Constitutional Tribunal in accordance with the prescribed procedures for its opinion, has to stay the trial until it receives such a resolution. In addition, its resolution is final and conclusive

.

5.7 Other Courts

There are also other courts with specific jurisdiction, namely, Juvenile Courts to try offences committed by minors, Municipal Courts to try municipal offences and Motor Vehicle Courts to try road traffic offences.

In term of hierarchy, Township Courts and other Courts are courts of first instance; District Courts, Courts of the Self-Administered Division, and Courts of the Self-Administered Zone are courts of first appeal; the High Courts of the Regions and the High Courts of the States are courts of second appeal; and the Supreme Court is the court of final appeal.5

For more about the Judicial System and Court Proceeding in Myanmar, please read.

Also read here.

6. Sources of Law

Sources of law in Myanmar comprise of constitutions, legislations, customary law and English common law. English common law rules, developed and adopted in Myanmar case law during the British occupation, are applied where there is absence of local legislation governing a particular matter before the Courts. Moreover, judges are granted discretionary power to decide the matter in accordance with justice, equity and good conscience in the absent of any applicable law.

Any law, rule, regulation or by-law passed by the Pyidaungsu Hluttaw and signed by the President or deemed to have been signed are published in the Myanma Naingngan Pyantan (Myanmar Gazette). The Gazette is published by the News and Periodicals Enterprise (NPE) under the Ministry of Information of Myanmar. Union Attorney General’s Office also annually publishes laws, rules, regulations or by-laws enacted in respective year under the title of “Myanmar Laws” in both Burmese and English.

Among all decided cases from the superior courts, some are selected by the conjoint selection board, which comprises of judges from the Supreme Court of the Union and Deputy Attorney General as well as Director General from the Union Attorney General’s Office, in order to publish in the annual law report published by the Supreme Court of the Union. Cases decided by the Constitutional Tribunal of the Union are published in its official website.

Some investment related laws can be found here.

Some labour related laws can be found here.

The World Law Guide page on Myanmar containing some laws can be found here.

7. Legal Profession

Legal professionals comprise of judges, judicial officers and lawyers. Lawyers can be classified into two types, namely, Advocates and Higher Grade Pleaders. An Advocate is entitled to appear before any Court and tribunal in the Union whereas a Higher Grade Pleader is licensed to practice only before subordinate courts. Legal practitioners are governed by the Legal Practitioners Act 1879 and the Bar Council Act 1926.

8. Legal Education

Universities in Myanmar offer Degree of Bachelor of Laws (LL.B) (five-year program), Degree of Master of Laws (LL.M) (two-year program), Degree of Master of Research (M.Res) (one-year program) and Degree of Doctor of Philosophy (Ph.D) (five-year program).

Read a paper on Rule of Law and Commercial Litigation here.

Read a paper on Administrative and Criminal Justice Measures for Preventing Corruption in Myanmar, here.

Read a paper on Integration of Myanmar’s Legal System into ASEAN, here.

Read a paper on Copyright in Myanmar, here.

Read the Report of the International Bar Association’s Human Rights Institute on the Rule of Law in Myanmar Challenges and Prospects, here.

9. Useful Links

Government Offices

Others

[1] See Andrew Huxley, “The Importance of the Dhammathats in Burmese Law and Culture,” vol. 1, The Journal of Burma Studies (1997) pp. 1-17; Andrew Huxley, “Pre-colonial Burmese Law: Conical hat and shoulder bag,” Newsletter, Issue 25, International Institute for Asian Studies (Leiden) (October 2001) available at <http://www.iias.nl/iiasn/25/theme/25T7.html> (accessed on 30.06.2013); Nyo Nyo Thinn, “The Legal System in Myanmar and the Foreign Legal Assistance,” Law and Development Forum (2006) pp. 389-393.

[2] See Nyo Nyo Thinn, pp. 393-394.

[3] See Tun Shin, “As Myanmar belongs to the Common Law Legal System family, Myanmar Judicial System is deeply rooted with legal maxims, judicial customs and precedents which are enshrined with International Legal Principles that are utilized by successive judges all over the world,” vol. XX, No. 296, The New Light of Myanmar (10 February 2013) pp. 1 and 8.

[4] See Andrew Huxley, “The Last Fifty Years of Burmese Law: E Maung and Maung Maung,” LawAsia (1998) pp. 9-20; Nyo Nyo Thinn, pp. 395-396.

[5]See Htun Htun Oo, “Current Development of Judicial System in Myanmar,” Judicial Journal (28th November 2012) p. 3.