- Myanmar Legal System and Court System for the Litigation
Historical Background
Law code, gavel and books.
The legal system of the Union of Myanmar (Burma) is a unique combination of the customary law of the family, codified English common law and recent Myanmar legislation. The principles of English common and statutory law were implanted in Myanmar by the British law codes of the pre-independence India Statutes. These statutory laws, based on and incorporating the English common and statutory law of the colonial period, include the Contract Act, Evidence Act, General Clauses Act, Negotiable Instrument Act, Registration Act, Sale of Goods Act, Transfer of Property Act, Trusts Act and the Civil and Criminal Procedure Codes, all of which date from the 19th Century.
During the Colonial era, the British government enacted thirteen volume of codes, known as the Burma Codes. After independence in 1948, , the new government or “occasional president” of Burma from time to time supplemented the earlier Burma Codes..
Where there is no statute regulating a particular matter, the Courts are to apply Myanmar’s general law, which is based on the English common law as adopted and molded by Myanmar case law or jurisprudence, which embodies the rules of equity, justice and good conscience. Where there is no relevant statutory law on point, the Myanmar Courts are obliged to decide the matter according to justice, equity and good conscience.
Myanmar Courts interpreted its law by reference to both Indian and English case law. For the most part the English language was used up until 1965. Currently the Supreme Court of the Union of Myanmar annually publishes its decisions developing and interpreting the laws which govern the country.
What is the current structure of the court system in Myanmar?
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 the Constitutional Tribunal of the Union. On October 28, 2010, the Union Judiciary Law 2010 was enacted to implement and organize the work of the aforementioned courts.
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 [section 294, the 2008 Constitution]. The Court is situated in the country’s capital, Nay Pyi Taw, and headed by the Chief Justice of the Union. The Supreme Court consists of a minimum of seven to a maximum of eleven judges, 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 country’s parliament, the Pyidaungsu Hluttaw, which may not reject the person nominated by the President unless it can clearly be proven that the person does not meet the required 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 constitutional matters, 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 [section 295(a), the 2008 Constitution; section 11, the Union Judiciary Law 2010]. It has appellate jurisdiction to review judgments passed by the High Courts of the Regions or the States and judgments passed by the other courts in accord with the law [section 295(d), the 2008 Constitution; section 12, the Union Judiciary Law 2010]. It also has appellate jurisdiction over any judgment or order passed by any subordinate court [section 295(e), the 2008 Constitution; section 13, the Union Judiciary Law 2010] and jurisdiction over final sentences of death as well as their appeals [section 14, the Union Judiciary Law 2010]. Furthermore, it has the jurisdiction to transfer a case from a court to itself or to any other court [section 15, the Union Judiciary Law 2010]. It possesses the power to issue Writs of Habeas Corpus; Writs of Mandamus; Writs of Prohibition and Quo Warranto; and Writs of Certiorari. However, this power to issue writs is suspended in areas where a state of emergency has been declared [section 296, the 2008 Constitution; section 16, the Union Judiciary Law 2010]. The decisions of the Supreme Court are final and conclusive and thus it is the final court of appeal in the entire Union [section 295 (b) and (c), the 2008 Constitution; sections 18 and 22, the Union Judiciary Law 2010].
