— A new report warns that although Burma has made progress in improving its legal system in the past two years, lawyers still face restrictions in their work, especially when it comes to politically sensitive cases.
This week's report
from the International Commission of Jurists (ICJ)
warns about a legal system that erodes the independence of lawyers in Burma.
Although lawyers reported their independence had improved since Burma's political reforms started in 2010, outside analysts says there are still serious gaps including pervasive corruption and intimidation of lawyers who are representing politically sensitive cases.
Sam Zarifi, the regional director of the ICJ in Asia says that the government has shown willingness to address its shortcomings, but has yet to take concrete action.
"As we go into a very political year I think that's going to be a real challenge in terms of strengthening the judiciary in terms of strengthening the independence of lawyers and clearly the need to reform parts of the constitution," he said.
Burma still considers itself a common law country, a legal system largely based on the judgments of courts over the years. Much of its penal code dates to the law books of the British Raj, from when it was still a British colony.
Under Burma's former military dictatorship the legal system was reduced to a political tool of the government. Now, parliament is considering reforms, but it's still unclear how far they will go.
Thein Than Oo is a lawyer and former political prisoner whose license was revoked for over 11 years after he took on numerous politically sensitive cases. Recently, he represented Muslims accused of killing a Buddhist monk, a high-profile case at a time of sectarian tensions.
He says a major structural flaw in the legal system lies in the powerful role of the attorney general, who is appointed rather than elected, and also heads the Bar Council, which is not independent.
"Attorney general in person is very good and very famous Dr. Tun Shin, but as attorney general he is also the puppet of the government," he said.
Others point out that structural injustices present in the legal system have put minority groups at a great disadvantage. For example, in the aftermath of communal violence, Muslims are often sentenced more severely for minor crimes than their Buddhist neighbors.
Many in Burma lobbying for legal reforms argue that the country needs a system based on “rule of law.” But many factions interpret the meaning of that term differently, creating confusion about what reforms they actually support.
Matt Walton, the Aung San Suu Kyi Senior Research fellow in modern Burmese studies at Oxford University says the “rule of law” term has become so overused, that it has become meaningless. Walton says the term is already used to defend unjust legal decisions.
"Rule of law is presumed to be this neutral vehicle but it doesn’t take into account what are more positive mechanisms of justice which recognizes structural and historical injustice as well,” he said.
In the aftermath of communal violence, for example, Muslims have often been punished more harshly than Buddhists for crimes related to sparking riots. Vague laws are often interpreted to the disadvantage of Muslims, in particular the section which criminalizes insult to religion.
Sam Zarifi says improving the legal system will require amending the constitution in 2014, but that is just one of several high profile amendments under consideration.
The government has stressed amendments to create a clear investment law that benefits the economy. The opposition has focused on a constitutional amendment that would change the clause that currently prohibits Nobel Peace Laureate Aung San Suu Kyi from running for president.
Any such changes require a 75 percent majority of the parliament's approval. And under Burma's 2008 constitution, 25 percent of the parliamentary seats remain reserved for the military.
Military members of parliament intend to submit their suggestions for amending the constitution by December 15.