August 19, 2016

Independence of Judiciary

There are three organs of state power in any sovereign and independent state, namely the legislative, executive and judicial organs. These organs or these bodies carry out their respective functions in accordance with the constitutional law of the state. The legislative body makes or provides the laws, the executive or the administrative body administers the state and the judicial body or the judiciary carries out judicial functions or in other words, carries out the administration of justice functions. Of the three organs of state power, the legislative body or the parliament is the most powerful organ as it is made up of the people’s representatives who are elected and entrusted with the law-making, law-providing power. To observe and obey the laws made by the parliament, or to ensure the rule of law prevails, the executive and the judicial organs have to carry out their functions – administrative and judicial functions in strict accordance with the spirit and the letter of the law. And in this article, I would like to present to you, independence of judiciary, as much as my knowledge goes and expands.
At the time, when I was recruited to the Burma Civil Service (B.C.S) the magisterial power was conferred upon me, starting from the third class, the second class, the first class and then to the special power depending upon and taking into consideration of my length of service and my knowledge, experience and expertise accumulated in laws through my studies and constant learning. Under the then administrative system, we, the civil servants were appointed first on probation and we had to sit for and pass the departmental examinations in those subjects, such as the civil and criminal laws, treasury and revenue laws and regulations. Only then, were we appointed as permanent. And the magisterial powers were conferred upon as by virtue of our posts and then additional powers were again conferred, taking into consideration of our experience and expertise in laws.
All the magistrates, appointed under the criminal procedure code were subordinate to the district magistrate, and he might from time to time make rules or would give special orders consistent with the code as to the distribution of business among such magistrates but would never exercise power or influence to encroach upon the rights to independence of these subordinate courts. Instead, the district magistrates and the district and sessions judges advised, guided, and pointed out the errors, if any, the magistrates might have made, in the meetings and in the appeals, and revision cases. And the district magistrates and sessions judges educated the subordinate magistrates and judges and encouraged and guided them to broaden their horizons through constant learning.
With all my thanks and immeasurable debts of gratitude I owe to all my superior magistrates and sessions judges, I would like to present to you a few of their teachings and guidance to enlighten us and to apply and strictly follow the legal maxims and principles.
These maxims and principles are as follows:
(1)    Justice rushed is justice crushed.
(2)    Justice delayed is justice denied.
(3)    He who does justice, justice cares for him.
(4)    The parties or the clients before a court of law want justice, nothing more or nothing less.
(5)    It is not enough that justice is done, justice must be seen to have been done.
(6)    Power tends to corrupt, and absolute power corrupts absolutely.
(7)    Magisterial powers, judicial powers conferred upon the magistrates and the judges are not for abuse and not for their personal gains but for the cause of justice and the rule of law.
(8)    Cases brought before the courts must be disposed of correctly, judiciously in accordance with the letter and the spirit of the law and swiftly, speedily.
Now allow me to present to you something about the independence of judiciary. I believe the phrase, independence of judiciary is so concise and clear in itself that it needs no further explanation or explication. Under this doctrine, a magistrate or a judge is vested with the judicial powers i.e the authority to hear and decide the cases, independently and at his own discretion, but strictly in accordance with the law. But there is one most vital paint to note. Independence of judiciary doesn’t mean, judicial powers may be exercised at the whims and fancies of the magistrates or the judges leaving aside all the relevant laws and evidence pertaining to the cases. In other words, independence of judiciary does not mean that a magistrate or a judge can decide the cases with prejudice and bias, with fear or favour. And from one point of view, while exercising independence of judiciary, the judges, and of course the magistrates inclusive, must be those dignitaries worthy of their status and their position, with no iota of or with zero bribery and corruption. Herein, I would like to present to you, sir, our supreme court ruling as regards the term, “Corruption”. In the ruling, the supreme court pointed out that “corruption”. means not merely, taking a bribe, corruption also means mismanagement, i.e doing things that ought not to be done and failing to do something that ought to be done.” A judge, according to our Myanmar language, if I may interpret, means a person who is head of justice or who is in charge of justice, or a person who is entrusted to administer justice due to his wisdom, integrity and honesty. A judge must therefore be free from four kinds of prejudice and bias. If freely translated, I think they may read as emotion, anger, fear, ignorance.1
So, if a judge makes judgment based not on relevant laws and evidence, but out of emotions, love, hatred, jealousy or fear, etc, he is said to be prejudiced and biased. If a judge decides a case out of anger, out of fear of danger, that particular learned judge is said to be prejudiced and biased. Similarly, if a judge passes judgment without studying and knowing the laws full well, relevant to the case and without knowing the latest rulings, pertaining to the case, that judge is said to have committed prejudice and bias.
In practicing and promoting “independence of judiciary,” it must be made double sure that bribery and corruption, prejudice and bias – all the malpractices and acts of mismanagement must be totally wiped out and cleansed so as to win the public confidence, trust, and participation in our highly esteemed judiciary, and its independence.
In conclusion, I pay homage and deep respect to all my superior officers – district magistrates and district and sessions judges and, of course, to all my superior officers from the Ministry of Foreign Affairs, for their teachings and guidance, because I owe immeasurable debts of gratitude to all of them. Why? Simply because they all shaped my future and they all made me become what I am to day.
* 1 qE´m? a’go? b,m? arm[? (t*wdw&m;av;yg;) *
(1)    Oxford Advanced Learner’s Dictionary
(2)    Black’s law Dictionary, Bryan A.Garner.
(3)    A book of essential quotations – Edited by Eric Patridge.


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