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Court System, Criminal Procedure and Legal Profession of Mya

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Alexander Ahkar

on 23 October 2013

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Transcript of Court System, Criminal Procedure and Legal Profession of Mya

Court System, Criminal Procedure and Legal Profession of Myanmar
FONTS
Court System Of Myanmar
Criminal Procedure of Myanmar
Legal Profession of Myanmar
Judiciary
Formation of Courts under section 293 of 2008 Constitution
S.293 - Courts of the Union are formed as follows:
Supreme Court of the Union.
High Courts of the Region, High Courts of the State, Courts of the Self-Administered Division, Courts of the Self- Administered Zone, District Courts, Township Courts and the other Courts constituted by law;
Courts martial;
Constitutional Tribunal of the Union;
The Formation of Courts in Myanmar
The Supreme Court
Formation
The Supreme Court of the Union is the highest organ of the State Judiciary of the Union of Myanmar. The Supreme Court consists of team a minimum of 7 to a maximum of 11 judges, including the chief justice.
Jurisdiction
The Supreme Court is the highest court of appeal. It exercises both appellate and revision powers. It also has original jurisdiction which enables it to hear cases as the court of first instance. It is the only court in Myanmar which can try maritime cases in its original jurisdiction
Only the Supreme Court of the Union has original jurisdiction in the following matters-
Matters arising out of bilateral treaties concluded by the Union;
Other disputes between the Union Government and the Region or State Government except the Constitutional problems;
Other disputers among the Regions, among the State, between the Region and the State and between the Union Territory and the Region or the State except Constitutional problems;
piracy, offences committed at international water or airspace, offences committed at ground or international water or airspace by violating the international law;
Cases prescribed under any law;
Subject to any provision of the Constitution or any other law, the Supreme Court of the Union, has the jurisdiction on:
The appeal against the judgment, decree or order passed by the Supreme Court of the Union by exercising its original jurisdiction
The appeal against the judgment, decree or order passed by the High Court of the Region or the State
The appeal against the judgment, decree or order passed by other Court in accord with law.
The Supreme Court of the Union has the jurisdiction on revision in accord with law against the judgment or order passed by a Court.
The Supreme Court of the Union
Has the Jurisdiction on a case transferred to it by its own decision.
Has the Jurisdiction for the transfer of a case from a Court to any other Court.
Has the power to issue the following writs:
(i) Writ of Habeas Corpus:
(ii) Writ of Mandamus;
(iii) Writ of Prohibition
(iv) Writ of Quo Warranto;
(v) Writ of Certiorari;
At the time of the occurrence of the following situation, the right to claim the rights contained in section 377 of the Constitution shall not be suspended unless it is required for public security:
(i) in time of war;
(ii) in time of foreign aggression;
(iii) in time of insurrection;
High Courts of the Region or the State
Formation
The High Courts of the Region or the State are established under the Judiciary Law, 2010.
Composition
From a minimum of 3 to a maximum of 7 judges of the High Court of the Region or State including the Chief Justice of the High Court of the Region or State may be appointed in each High Court of the Region or State.
The President shall, in co-ordination with the Chief Justice of the Union, relevant Chief Minister of the Region or State, appoint a person who fulfils the qualification under section 310 of the Constitution and section 48 of this Law as the Chief Justice of the relevant Region or State, with the approval of the Region or State Hluttaw.
The President shall appoint the persons in respect of whom the Chief Minister of the Region or State co-ordinates with the Chief Justice of the Union, and who fulfill the qualifications under section 310 of the Constitution and section 48 of this Law as the Judges of the High Court of the Region or State with the approval of the Region or State Hluttaw.
Jurisdiction
The High Courts of the Region or State have the following jurisdictions in accord with law:
adjudicating on the original case;
adjudicating on the appeal case;
adjudicating on the revision case;
adjudicating on the cases prescribe by any law;
The High Court of the Region or State has the jurisdiction:
to adjudicated on a case transferred to it by its own decision within its jurisdiction of the Region or State;
to adjudicate on transfer of a case from any court to any other court within its jurisdiction of the Region or State.
© Original Civil Jurisdiction – unlimited pecuniary jurisdiction in original Civil Suit.
The District Court , The Court of Self
Self- Administered
Division; the Court of Self Self-Administered zone
Formation
The District courts of Self-Administered Division and Self Administered Zone are established under the Judiciary Law, 2010.
Composition
In every District Court, a District Judge is appointed by the Supreme Court of the Union. Judge may also be appointed by the Supreme Court of the Union depending on the volume of work. Those Judges are conferred with judicial powers by the Supreme Court of the Union in accordance with the provisions of the Criminal Procedure Code and Civil Procedure Code.
Jurisdiction
The District Judges Self-Administered Division and Self Administered Zone are conferred with original criminal jurisdictional powers, criminal appellate and revision jurisdictional powers according to the Criminal Procedure Code. They also invested with original civil jurisdictional powers, civil appellate and revision jurisdictional powers according to the Civil Procedure Code. As courts of original jurisdiction they hear and determine serious criminal cases and civil cases.
The Township Courts
Formation
The Township courts are established under the Judiciary Law, 2010.
Composition
In every Township court a Township Judge is appointed by the Supreme Court of the Union. Additional Township Judges or Deputy Judges may also be appointed by the Supreme Court depending on the volume of work. Those Judges are conferred with judicial powers by the Supreme Court in accordance with the provisions of the Criminal Procedure Code and Civil Procedure Code.
A Township Judge is the officer in charge of court administration matters. He or she also has the power to distribute all cases received in the Township court to other judges of Township courts. But every judge has independent jurisdiction over cases assigned to him or her
Jurisdiction
Township courts are mainly courts of original jurisdiction. The judges appointed to a Township court are Township Judges, additional Township Judges and Deputy Township Judges. Township Judges by virtue of their posts are specially empowered as Magistrates who can pass sentences of up to seven years imprisonment where as an Additional Township Judge, if he or she is especially empowered with such special magisterial powers, may award sentences not exceeding seven years. The remaining Deputy Township Judges can impose sentences according to their magisterial powers.
Some of the civil cases in which the amount in dispute or value of the subject matters is not exceeding 10million kyats are adjudicated in Township courts. They also exercise Juvenile Jurisdiction specially conferred under 1993 Child Law.
Other Courts Constituted to Try Separate Cases
Separate court can be established either under special provisions in any law or in respect of those cases which occur irregularly in populous areas.

Separate courts specially constituted by the Supreme Court to achieve speedy and effective trial under some special laws include:-

Juvenile Courts
Courts to try Municipal Offences
Courts to Try Traffic Offences
Juvenile Courts
The State Law and Order Restoration Council enacted the Child Law of 1993. The Child Law, 1993 was adopted to implement the rights of the child envisaged in the United Nations Convention on the Rights of the Child. In the administration of Justice in the Union of Myanmar a juvenile offender is usually tried summarily by a competent court irrespective of the severity of the offence. In ordinary circumstances the legislature intended the juvenile offender to be punished as leniently as possible so that he or she may be able to enter the mainstream of life with a clear conscience, confident, efficient and with high normal. To achieve that spirit, juvenile offenders cannot be sentenced to death or transportation for life, or whipping.
In accord with the Child Law, Township courts are conferred with powers to try juvenile offences. A separate Juvenile court (Yangon) has been constituted to try juvenile cases occurring at 20 townships in Yangon City Development Area. A separate Juvenile court (Mandalay) has been constituted to try juvenile cases occurring at 5 townships in Mandalay City Development Area. Apart from that, Juvenile court has been established separately township within the Court House.
Under the Judiciary law, 2010 the following courts were established in the Union of Myanmar-

The Supreme Court of the Union of Myanmar
The High Court of the Region or the State
Court of Self-Administered Division
Court of Self-Administered Zone
District Courts
Township Courts
Other Courts established by Law
High Courts of the Region or the State
Courts to try Municipal
Offences
7 separate courts have been opened in Yangon after consultation with the Yangon City Development Committee to try municipal offences. Such offences include; violating provisions of the City of Yangon Municipal Act, Rules, By-Law, Orders and Directions still in force and those under the Yangon City Development Law enacted by the State Law and Order Restoration Council, 4 separate courts have also been established in Mandalay after consultation with the Mandalay City Development Committee, to try municipal offences.
Courts to Try Traffic Offences
In order to try offenders violating vehicle rules and road discipline, 7 separated courts in Yangon City Development area and 2 separated courts in Mandalay City Development area, exclusively for that purpose have been constituted in consultation with the Traffic Rules Enforcement Supervision Committee.
Court Procedure for Criminal Cases
The Mode or Taking Cognizance of Offences
Magistrates may take cognizance of any offence -
Upon receiving a complaint of facts which constitute such offence;
Upon a report in writing of such facts made by any police-officer;
Upon information received from any person other than a police officer, or upon his cognizance is something prior to and does not necessarily mean the commencement of judicial proceedings against any one.

Enquiry & Trial
When the complaint is put up before the Magistrate, empowered to take cognizance of the case, the complainant is called and examined on oath. The Magistrate records the complainant’s statement and orders issue of process on the accused, unless he is of opinion that the complainant’s story is untrue or has some inherent improbability about it. If the Magistrate refuses to issue process, he either dismisses the case under Section 203 of Criminal Procedure Code, or directs an enquiry by the police or by some respectable gentlemen of the locality. In a case where enquiry is directed, the magistrate has to wait for the report of the enquiry for disposal of the complaint.
Appearance of the Accused
When on complaint of a party the magistrate issues process, the lawyer should direct his client to file requisites, e.g., process fee and address of the accused. Careless supply of address of the accused or delay in filing the prescribed fee for issue of process often means unnecessary delay, disappointment and expense to the complainant. Ordinarily, the accused on receipt of the summons or warrant appears in court on the date fixed for such appearance.
Bail
In the bail cases, the court grants him bail and fixes a date on which the trial proper is to begin.If the court on a consideration of the petition is of opinion that the accused deserves to be on bail during the trial, an order is passed to that effect fixing the amount of security and number of sureties to be furnished. The accused then secures a surety or sureties who along with him execute a bond. This bond is put up before the magistrate for acceptance.
In non-bailable cases, an accused person may, for reason to be recorded in writing, be released on bail but he shall not be so released on bail, Provided that any person under the age of 16, any woman or any sick or infirm person may be released on bail in any case.
Commencement of Record of Evidence of Trial
A Magistrate can try a case according to law in one of these ways:
(a) summons trial
(b) warrant trial
(c) summary trial.
Summary trial and summons trial require the complainant to appear in court with his witnesses on the date fixed for that purpose. The accused also has to bring his witnesses on that day the court having regard to the nature of its file on that date and the number of witnesses proposed to be examined by the complainant.In summons trial and summary trial, the Magistrate need not record the evidence.
In summons trial and summary trial the magistrate need not frame any charge. He has to examine the accused under Section 342 of the Criminal Procedure Code.
In warrant trial, prosecution goes on examining witnesses till the list is exhausted or till the magistrate considers that sufficient evidence has been led to enable him to frame a charge against the accused. The defence lawyer has the right to cross-examine the prosecution witness twice, once before charge and again after it.
Judgement
Judgment must be pronounced in open court, in the presence of the accused, or, if his personal attendance during the trial has been dispensed with and he is acquitted or the sentence is one of fine only, in the presence of his pleader.
Appeal and Revision
An appeal shall lie to the respective appellate court in accordance with the Union Judiciary Law, 2010 and the Criminal Procedure Code.
The superior courts empowered with revisionist power, may call for and examine the record of any proceeding before any inferior criminal court for the purpose of satisfying itself as to the correctness, legality and propriety of finding, sentence or order, passed by inferior court.

Background
All lawyers in independent practice in Myanmar are either ‘advocates’ or ‘pleaders’, a distinction that dates back to colonial times the latter
appear only in District and Township Courts and are subdivided into two further categories: ordinary pleaders, ‘higher grade pleaders’. Criminal prosecutions are conducted by functionaries working under the Attorney General, an official post inherited from the British. The 2008 Constitution provided for
the nomination of Attorneys-General,
appointed by the President with the consent of Pyidaungsu Hluttaw
THANK YOU!
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