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March 24, 2019

The President Should Appoint Up to Six New Supreme Court Judges

By Dr. Myint Zan

With the passing, in early 2017, of a Judge of the Union Supreme Court (to whose family I convey my belated condolences) in mid- 2017 the Myanmar Supreme Court now has only six instead of the minimum of seven Judges. It is also learnt that one of the Supreme Court judges on reaching the mandatory retirement age of 70 will have to retire perhaps in a few months time.  Hence in this scenario there may be only five instead of the minimum seven Judges in the Myanmar Supreme Court. As I write in the first week of June 2017 the President has not yet appointed any judges to the Supreme Court.
Appointees to the Myanmar Supreme Court under the 2008 Constitution (in addition to other requisite qualifications) have to be between the ages of 50 to 70 years. And whereas the  Union Constitutional Tribunal has to  be formed with  nine members, the 2008 Constitution gives a ‘range’ of the number of Supreme Court Judges from a minimum of seven to a maximum of 11 Judges.
Supreme Court judges nominated by the President have to be approved by the Pyindaungsu Hluttaw (Union Legislature) but a constitutional provision also states that ‘the Pyidaungsu Hluttaw has no right to refuse a nominee by the President unless it can clearly be shown that the nominee does not meet the stated qualifications’. There is also a provision that persons whom the President considers to be eminent jurists (even if they do not meet other qualifications) can be nominated and appointed as Supreme Court judges.
In more than five years (from 30 March 2011 to early June 2017) the Union Constitutional Tribunal has given its opinions or decisions in (I think) only eleven or twelve cases. Cases decided by the Union Supreme Court during that five year period would be much more than that. In the past seven years instead of the eleven or twelve (as of May  2017) ‘cases’ so to speak which reached  the Constitutional Tribunal  there could be more than ten thousand cases  which reached the Union Supreme Court.
The large number of cases before the Union Supreme Court is only one reason for this writer to humbly propose that the President should make five (or six) additional Supreme Court appointments.
Another equally important point is that the Union Supreme Court should have diversity of qualified individuals. The President could make history by nominating a suitably qualified female of non-military background to the Supreme Court.
Should the Pyidaungsu Hluttaw approves the President’s appointment of a female, the first female Supreme Court judge in 69 years of post-independence Burmese history would be a landmark. In fact since colonial times Burma has had a few distinguished female legal luminaries. One of the most prominent would be the late Daw Phwar Mee , the first Burmese female Barrister (in the year 1925). Daw Phar Mee passed away on 26 June 1962 while her husband the late 3rd Chief Justice  of the Union  U Myint Thein (22 February 1900-3 October 1994) (Chief Justice from 22 July 1957 to 31 March 1962 when then Revolutionary Council Chairman General Ne Win terminated his services by decree ‘effective noon on 31 March 1962’) was in detention. Daw Phwar Mee never joined the then judicial service. Fifty-five years after Daw Phwar Mee’s passing away President U Htin Kyaw and the Pyidaungsu Hlutttaw has a chance to make history by appointing and approving a female whether from legal practice, the judiciary or academia to the Union Supreme Court.
I did write with considerable anxiousness in fact almost with ‘trepidation’ (not being really being ‘free(dom) from fear’  that the female nominee (or for that matter other nominees) should be from non-military backgrounds. I understand that four out of the seven Supreme Court judges appointed by former President U Thein Sein and approved by the then Pyidangsu Hluttaw in 2011, were in their earlier parts of their careers, from the Judge Advocate-General (JAG) office.
In recent years on more than one occasion I have noticed the claim made by certain legal personnel almost with pride that ‘Myanmar belongs to the Common Law (legal system)’. (See for example The New Light of Myanmar 10 February 2013 issue front page with the headline ‘Myanmar belongs to the Common Law system …’ ).
I am not aware (and again dare I say it?) that in countries whose legal systems, in part, ‘belong’ to the common law system (or at least were former British colonies) in Asia, from Pakistan in the west to Hong Kong Administrative Region in the east that the majority of judges in the apex courts (that excludes the court-martial) came from the Judge-Advocate general backgrounds or from the military.
Perhaps even in countries (in part) with a British legal heritage as far flung as Australia and Bahamas to Zambia and Zimbabwe are concerned I doubt whether the majority of judges in the apex courts (excluding  court martials) are from military back grounds. (If others can point out that I am wrong I would withdraw the above statement and rectify it.)
Appointing up to five or perhaps six- should the pending retirement of a Supreme Court Judge takes place- Supreme Court judges with diverse backgrounds including at least one or more female jurists from the judiciary, legal practice and from academia would be a significant step in the right direction.


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