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That the current regime, like its predecessor, has no faith in constitutionalism need not be said. Its 235-page charter is a testament to this. At every turn it hands power back to the army or its proxies. Even the document itself is somehow supposed to be safeguarded by the military, rather than the judiciary.
Still, among the hundreds of articles to protect the generals’ interests are a handful of throwbacks to an earlier era. They include one that on paper has renewed the authority of the Supreme Court to issue writs, including those of habeas corpus. This means that technically the court can now have any detained person brought before it to find out how and why they are being held in custody, and decide whether to free them or not.
That would be a pretty big deal if it could be enforced. After all, there are thousands of possible applicants in Burma’s jails right now, many of them who have been held since the protests last year. Couldn’t they stand to benefit?
In principle, the answer is yes. Anybody who has read A. V. Dicey’s classic on the law of the English Constitution will recall his enthusing about habeas corpus. As far as he was concerned, it was “for practical purposes worth a hundred constitutional articles guaranteeing individual liberty” of the sort that the continental Europeans relied upon.
The point was not lost on people in colonial Burma. Habeas corpus was guaranteed under the criminal procedure law and actively used in the last decades of imperial rule, before being written into the 1947 constitution.
That was when it really took off. The decade following independence was bloody and tumultuous. The government was besieged from all sides and survival depended in part on it using the same sort of preventive custody laws as had its predecessor.
A lot of people ended up in jail without having done anything wrong. Naturally, they wanted out. Habeas corpus became very popular. It was said to be cheap and effective. The courts were kept busy receiving and issuing orders, and continued this way even after the first coup in 1958.
Having taken over again four years later, General Ne Win pretended for a short time to let the law go on as before. But his government soon geared up to bring the judiciary under its control. It merged the top courts, replaced senior judges with yes-men, and started a decade-long project of pulling the legal system to bits.
As judges were all now army appointees, making habeas corpus plaints for any of the thousands of people rounded up during the coup and thereafter was futile. The practice fell into disuse.
When a new Constitution was introduced in 1974 there was no reference to habeas corpus or writ petitions at all. A host of other colonial laws remained in effect, including the repressive ones, but the few that had swung some of the law in favor of detainees had been wiped out. Those who bothered to complain about illegal custody to the chief justice had their files handed over to the attorney general’s office, which promptly shelved them.
Yet after all of that, habeas corpus is back. Or is it? Although it has the capacity to protect detainees’ rights when the courts have the credibility and independence to enforce the law, what happens when these are missing?
In Nepal, at the height of the madness that led to thousands of killings and disappearances and ultimately the collapse of the government in 2005, lawyers routinely lodged habeas corpus writs only to be told that the army didn’t have their clients, or if it did and brought them, only to see them rearrested after being set free, many literally outside the courthouses.
When the security forces abducted and killed tens of thousands in Sri Lanka during the late 1980s and early 90s they simply ignored most of the nearly 3,000 habeas corpus writs that families lodged there, often not bothering to appear at all, or again denying that they had the persons in their hands. Complainants were worn out by long, delayed and expensive hearings from which the perpetrators ultimately walked away.
Burma’s top court is not likely to be issuing orders that would have army officers coming to answer questions about the whereabouts of missing persons any time soon, and in this respect it is different from those in Nepal and Sri Lanka, which have retained some nominal independence.
But what all three do have in common is that they suffer from long-term and deliberate abuse, to the point that they have been forced to participate in the blatant mocking of justice and of themselves. Whether a judge sits in a courtroom waiting for an officer who never turns up or whether he just goes ahead and denies a petition that he knows won’t get anywhere is immaterial to the victim and family. It all comes to naught either way, for them, and for the law.
To use the trappings of constitutional form where the essential conditions for constitutionalism are absent can have no effect but to destroy respect for it. Perhaps that’s the point after all.
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(Awzar Thi is the pen name of a member of the Asian Human Rights Commission with over 15 years of experience as an advocate of human rights and the rule of law in Thailand and Burma. His Rule of Lords blog can be read at http://ratchasima.net)
