Expert Talks Myanmar’s Judicial System Postcoup

Christopher Gunness, Director of the Myanmar Accountability Project, testifying as an expert for the Petitioners at a material judicial review hearing of Law No. 26 of 2000 on Human Rights Court, Wednesday (1/25/2022). Photo by MKRI/Ifa.

Wednesday, January 25, 2023 | 16:44 WIB

JAKARTA (MKRI) — Since the coup d’état in 2021 Myanmar, its military has been increasing control over its judiciary. International observers monitoring the Myanmar court agree that it is currently impossible to obtain a fair trial, as torture and ill-treatment are frequent and the right to a fair trial is often denied, said former UN chief spokesperson for the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and current Director of the Myanmar Accountability Project Christopher Robert Paul Gunness as an expert for the Petitioners at a material judicial review hearing of Law No. 26 of 2000 on Human Rights Court on Wednesday, January 25, 2023 at the eighth hearing for case No. 89/PUU-XX/2022, presided over by Chief Justice Anwar Usman and the other eight constitutional justices.

Testifying online with interpreting by Yuliana Tansil, he said that even before the coup, Myanmar’s judicial system had been affected by structural and systematic issues, making access difficult and even impossible for defendants. There are rampant corrupt appointments of unqualified military officers in the judiciary.

“Myanmar’s national election was won by the National League for Democracy (NLD). The 2020 November election was seen as a fair and free election, but the military questioned the validity of the election results,” he said.

Military’s Control

Gunnes said the coup was in violation of Myanmar’s Constitution. The Myanmar military (Tatmadaw) challenged the legitimacy of the election results without any basis. On February 1, 2021, when the new parliament was about to be inaugurated, the military moved to take control of the country in an attempted coup, by arresting key NLD leaders, including State Counselor Aung Sung Suu Kyi and President Win Myint. The Tatmadaw formed the State Administrative Council (SAC), which then controls all state institutions including the justice system.

He added that a week after the coup, the SAC removed the four incumbent Supreme Court justices and appointed three new ones, leaving only one pre-coup justices. All but one of the justices had a military background or were appointed by the military. The military strengthened its control over the lower courts because the Supreme Court has control over the appointment, promotion, and transfer of lower-level judges. The SAC also took over the Attorney General’s Office and the Department of Public Law Administration.

“The law amending the Criminal Procedure Code, Law No. 6 of 2021, was enacted by the SAC on February 14, 2021. These two pieces of legislation has broadened the scope of criminal offenses to include high treason, sedition, and criticism against the military, in particular Article 505, and increased penalties. The expansion of sentences and indictment under the Terrorism Law is used to indict opposition who protest and anyone who also publishes materials, including journalists and people who publish on social media, and Article 505 is the most widely-used indictment, which criminalizes attempts to cause fear, spread hoaxes, and directly or indirectly instigate criminal acts against government employees. There is no need for a court order for detention under Article 505 and it is punishable by up to 3 years in prison. Because these provisions are broadly drafted, Article 505 is often used to respond to various activities deemed contrary to the interests of the regime,” he said.

In addition, he explained, all aspects of the system are under military control, and the justice system is used as a tool by the regime to try its political opponents. Those arrested for violations of the regime are routinely tortured and ill-treated, and are held in inhumane conditions in detention. They are denied adequate access to lawyers and family members, and denied due process in court. 

Jurisdiction over Universal International Crimes

The next expert for the Petitioners, Maximo Langer, testified virtually that the international community had reacted to international crimes by establishing various international mechanisms.

He believes universal jurisdiction is the basis of many cross-border prosecutions of international crimes, genocide, and war crimes. Under universal jurisdiction, any country may demand punishment for certain crimes despite not having territorial links and national interests and the crime being unrelated to its citizens.

“And these also include crimes against humanity, genocide, torture, and war crimes based on various international conventions, including the Convention against Torture and the Geneva Convention, to which Indonesia is a party,” he explained.

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The case No. 89/PUU-XX/2022 on the material judicial review of Law No. 26 of 2000 on Human Rights Court was filed by Marzuki DarusmanMuhammad Busyro Muqoddas, and the Alliance of the Independent Journalists (AJI) (Petitioners I-III).

At the preliminary hearing on Monday, September 26, 2022, the Petitioners argued that the phrase ‘by an Indonesian citizen’ in Article 5 of the Human Rights Court Law had eliminated the state’s responsibility to keep world peace, as the 1945 Constitution mandated, and eliminated the state’s responsibility in crimes in which another state is involved.

The current political situation in Myanmar is still in disarray after the military declared a state of emergency. Gross human rights violations have been committed and are still ongoing.

Under the limits of Article 5 of the Human Rights Court Law, victims of human rights violations in Myanmar would find it difficult to fight for their constitutional rights. Myanmar citizens cannot petition the International Criminal Court because Myanmar did not sign the Rome Statute. It would also be impossible for a country such as Myanmar with its military junta to establish a human rights court to try their officials who have committed human rights violations. The Petitioners believe there has been a legal vacuum in the case of gross human rights violations in Asia, so there needs to be a way to protect citizens, not only of Myanmar but also of ASEAN in general, so that they could have the right to personal defense.

Therefore, in the petitum, the Petitioners requested that the Court grant the entire petition and “declare the phrase ’by an Indonesian citizen’ in Article 5 of Law No. 26 of 2000 on Human Rights Court unconstitutional.”  

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 1/30/2023 10:18 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Wednesday, January 25, 2023 | 16:44 WIB 698