The coup and the capture of the courts

Has the coup in Myanmar led to the capture of the courts? In short, yes. Here I want to explain what the changes in judicial benches – specifically the Supreme Court and Constitutional Tribunal – tell us about what is going on and what might come next.

Constitutional Tribunal: After the coup of 1 February, it was initially unclear whether the Constitutional Tribunal existed, due to the absence of any published orders to indicate tribunal members being terminated from their duties or reappointed.

Finally, on 9 February the military appointed a new bench of the Constitutional Tribunal. Only one of the members was on the previous bench. One of the new appointees is the author of a well-known book on the constitutional writs from the 1940s to 1970s.

But this leads to a question – why has the military kept the Constitutional Tribunal and what role could it possibly serve under the current regime?

Lets first think about who can access it and whether there are likely to be any cases filed. As I explain elsewhere, there are two types of access to the court, direct and indirect access (see diagram below, with purple indicating indirect access and gold/brown indicating direct access). The Chief Justice of the Supreme Court (see below) has direct access but is unlikely to bring a case as he has just been appointed by the military.

The legislature has not been allowed to take office, so there are no speakers to bring a case. If 10% of members who were recently elected wanted to bring a case they could try, but this may be difficult as they only have indirect access and require approval of the speaker. It may be an interesting symbolic act if elected members of parliament sought to draw attention to key constitutional issues raised by the coup (even if the likelihood of the Tribunal accepting the case is low).

The president is unlikely to bring a case as he is also a new military appointee. This is the same with the chief ministers and the Union Election Commission.

So ironically we have a Constitutional Tribunal that either has no potential applicants, or is likely to hear trivial petitions.

Access to the Constitutional Tribunal, diagram prepared by Melissa Crouch, 2021

But if there were interested applicants, there are many questions they could raise concerning the coup.

Supreme Court

Perhaps more important than the Constitutional Tribunal for now is the changes to the Supreme Court and High Courts.

Keep in mind there are potentially at least three major types of cases these courts will here: 1.the writs petitions submitted to the Supreme Court just prior to the coup; 2.the criminal charges against Aung San Suu Kyi and U Win Myint, among other key elected officials; and 3. potentially the criminal cases of protestors who have already been arrested or may soon be arrested.

As a prior note, it was telling that on 1 February, no judges were arrested (note: there is unconfirmed news that one member of the former constitutional tribunal may be under arrest). This is a clear indication that the military did not consider the courts as a major source of opposition. It is also in stark contrast to the coup of 1962, when the Chief Justice of Burma was detained.

Nevertheless, there has been some reshuffling in the Supreme Court. Prior to the coup, there were nine Supreme Court judges. Despite the existing bench being confirmed as still in office on the first day of the coup, the situation changed three days later. On 4 February, four judges were terminated from their duties. These were judges who had been appointed under the NLD government, although one NLD appointee remains on the bench. Two High Court judges were appointed to the Supreme Court. This ensured there are seven judges on the Supreme Court, which is the minimum required under the Constitution (section 299(b)). However, several days later another three judges were appointed, meaning there are now 10 on the bench.

This includes the Chief Justice, three judges appointed under Thein Sein, one under the NLD, and five during the coup. At least three (perhaps more) of these judges are former judges advocate of the military.

These changes were made with reference to the Commander in Chief’s power under s419 (which of course, presumes that this was a legitimate state of emergency).

It is unclear whether the Supreme Court will continue to hear the quo warranto writs petition, but if the military wants legal cover for its claims of electoral fraud perhaps it will.

While all criminal cases start in the lower courts, there may be appeals to the higher courts, with the case going to the relevant High Court and then potentially to the Supreme Court.

The military has clearly anticipated cases going on appeal and moved to ensure that it has the upper hand. These changes in the Supreme Court show that the court is captured by the military.

I should note though, it does leave open the possibility for pro-democracy lawyers to bring cases. For example, the Committee Representing the Pyidaungsu Hluttaw (the elected members) has alleged that the military may have breached Chapter 6 of the Penal Code. But they would need the police and prosecutors to be willing to bring a case, which is unlikely.

Overall, we may instead speak of the recapture, rather than the capture, of the Supreme Court. With the Chief Justice as a former judges advocate in the military, there had not yet been any major change on the bench prior to the coup. As Ive mentioned in other writings, the courts have been the branch of government least affected by the post-2011 reforms.

*finally, a brief note of thanks to those sending in questions, comments and clarifications. Please feel free to contact me