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 [section 45 & 50, the Constitution of the Republic of the Union of Myanmar 2008. Hereinafter “the 2008 Constitution”] 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 [section 11, the 2008 Constitution].
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.
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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 [section 20, the 2008 Constitution]. 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 [section 248 (a) and (b), the 2008 Constitution]. 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 [section 250, the 2008 Constitution]. 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 [section 261(c), the 2008 Constitution].
The administrative body of a Self-Administered Division or Self-Administered Zone is called the leading body [section 275, the 2008 Constitution] which comprised of at least 10 members [section 276 (c), the 2008 Constitution]. The President has to appoint the person who is nominated as the Chairperson of the Self-Administered Division or the Self-Administered Zone concerned [section 276(f), the 2008 Constitution]. 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) [section 74, the 2008 Constitution]. 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 [section 109, the 2008 Constitution]. 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 [section 141, the 2008 Constitution].
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 [section 96, the 2008 Constitution]. 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 [section 98, the 2008 Constitution]. It can also enact laws relating to the Union territories when it is necessary [section 99, the 2008 Constitution].
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 [section 100, the 2008 Constitution]. 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 [section 101, the 2008 Constitution].
If a Bill initiated in the Pyithu Hluttaw or the Amyotha Hluttaw is approved by b
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