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Constitutional Protection of the Independence of Judiciary in Myanmar

Judicial independence means the ability of courts and judges to perform their duties
free of influence or control by other actors, whether governmental or private. There are some
standards of judicial independence on four grounds such as appointment and selection
process of the judges, the security of tenure, remuneration and removal of the judges.
In Myanmar, under the Constitution of the Republic of the Union of Myanmar (2008)
(hereinafter ‘the 2008 Constitution’), section 19 seems to support judicial independence in its
three judicial principles: (a) to administer justice independently according to law; (b) to
dispense justice in open court unless otherwise prohibited by law; (c) to guarantee in all cases
the right of defence and the right of appeal under law. Different political institutions manage
judicial appointments in Myanmar. The processes used and criteria they apply are opaque.
The President and the Parliament (i.e, the Pyidaungsu Hluttaw) jointly appoint the members
of the Constitutional Tribunal according to section 321 of the 2008 Constitution. In
accordance with section 299(c) and (d), the President nominates the Chief Justice of the
Union and, in coordination with the latter, the judges of the Supreme Court; they are
appointed with the approval of Parliament, who cannot refuse to approve the appointment of
the nominee unless it can clearly be proven that the person does not meet the required
qualifications. Thus, the President as the head of state and of executive has the sole power to
select and appoint the Chief Justice and judges of the Supreme Court of the Union, however,
he has to seek approval of the Pyidaungsu Hluttaw as mentioned above.
Notably, the criteria for appointment do not necessarily require that candidates for
judicial office hold a law degree or have professional experience in the legal field (be it as an
academic, practising lawyer, or any other type of legal professional), instead, being “a person
who, in the opinion of the President, is an eminent jurist” can suffice as provided in sections
301 and 310 of the 2008 Constitution. The principle of independence is reinforced through
the requirement that judges of the Constitutional Court, the Supreme Court and High Courts
be free from party politics according to sections 300(a) and 301(f) of the 2008 Constitution.
Myanmar’s Executive branch exercises considerable control over the judicial budget.
The Supreme Court is tasked with submitting a budget for the judiciary to the Government
each year according to section 297 of the 2008 Constitution. Myanmar does not have a
Judicial Service Commission or other comparable independent body entrusted with the
discipline of judges. Judges sitting on the Constitutional Tribunal, Supreme Court, and High
Courts of the Union are subject to impeachment proceedings by Parliament. Sections 302 (a)
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and 311(a) of the 2008 Constitution stated that grounds for impeachment of these judges
include “misconduct” and “inefficient discharge of duties assigned by law”. Further, it is not
clear that any formal mechanisms exist to ensure the integrity and accountability of lower
court judges. The role of the executive and legislature in the removal of superior court judges
and the lack of clarity as regards the mechanism applicable to lower court judges threatens
judicial independence and undermines security of tenure, which is one of the basic conditions
for judges to retain their independence: without it, they are susceptible to undue pressure
from different quarters, mainly from those who exert influence and control over their career.