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LEGAL TRAINING RESOURCE CENTER
Since 1989, the military authorities governing Burma have promoted the name Myanmar as a conventional name for their state.
Myanmar, the second largest country in Southeast Asia, has a population of approximately 60 million. Its capital is Nay Pyi Taw, and the biggest city is Rangoon. The ethnically diverse population is predominately Buddhist.
Britain controlled Myanmar over a period of 62 years (1824-1886) and incorporated it into its Indian Empire. Myanmar gained independence from Great Britain on 4 January 1948. A coup d’état in 1963 installed a military government. A popular uprising was forcibly crushed in 1988, and mass demonstrations were not seen again until 2007, when a small string of protests about living standards gained momentum among the citizens. Prominent pro-democracy leader and Nobel Peace Prize winner, Aung San Suu Kyi, had various restrictions placed on her activities since the late 1980s.
Since the November 2010 General Election Myanmar has been undergoing rapid reform. Some political prisoners have been released and restrictions on free speech and assembly have been eased. In 2011 Aung San Suu Kyi was released and the NLD was allowed to contest, and win, a by-election. Myanmar has entered a period of increased economic growth and international engagement.
Type of System
The legal system is based on English common law. Remnants of the British-era legal system are in place, but there is no guarantee of a fair public trial, and the judiciary is not independent from the executive.
According to Articles 18 and 293 of the Constitution, judicial power is shared among the Supreme Court of the Union, the High Courts of the Region, the High Courts of the State, the Courts of the Self-Administered Division, the Courts of the Self- Administered Zone, District Courts, Township Courts and the other courts constituted by law, the Courts-Martial, and the Constitutional Tribunal of the Union. About jurisdiction, Article 44(4) of the Criminal Procedure Code states that “the term ‘offense’ includes an act committed at any place out of the Union of Myanmar which would constitute a offense if committed in the Union of Myanmar.”
Sources of Defendants' Rights
Defendant’s rights in criminal proceedings are found in the Constitution and in the Criminal Procedure Code.
The Constitution was approved on 3 January 1974, but it has been suspended since 18 September 1988. The text of a new Constitution officially received 92.48% support in a May 2008 referendum that most observers believe fell far short of international standards of free and fair elections. The document contains different principles related to the functioning of the criminal justice system such as the principle of legality in the administration of justice, the equality before the law, the right to defense, the prohibition of ex post facto laws, the right to personal liberty, the double jeopardy, and the principle that no penalty must violate human dignity (Article 44).
The Criminal Procedure Code was enacted in 1898, but it does not contain or elaborate further on all the rights enshrined in the Constitution, notably the right to defense.
The regular procedure to make an arrest requires a written warrant. The cases where an arrest can be made without a warrant, however, are many (Section 54 Criminal Procedure Code). The police officer or other person executing an order of arrest must notify and show the warrant to the arrestee. As well, an order is required in order to conduct searches (Sections 47 and 48 Criminal Procedure Code).
A police officer making an arrest without warrant has to take or send the arrestee before the officer in charge of the police station, without unnecessary delay. The custody cannot be for a longer period than is reasonable under all the circumstances. In any case, in the absence of a special order of a magistrate, the period cannot exceed 24 hours exclusive of the time necessary for the journey to get to the magistrate’ s court (Sections 60, 61 Criminal Procedure Code).
The detention must not exceed 30 days when a person is accused of an offense punishable with, at least, 7 years of imprisonment. The duration is limited to 15 days, if the charge concerns an offense punishable with, at the most, 7 years imprisonment (Section 167 Criminal Procedure Code).
The maximum duration of the pre trial detention is not determined.
In case of a confession, Section 164(3) Criminal Procedure Code requires that, before recording, a magistrate shall explain to the person making the statement that he is not bound to make a confession and that if he does so it may be used as evidence against him. Moreover, a magistrate cannot record a confession if he has reason to believe that it was not made voluntarily.
Bail, bonds, and sureties are envisioned in the Criminal Procedure Code in Chapters XXXIX, and XLII.
Trials before magistrates commence upon the reception of a complaint, a report from any police officer, information received from any person, and if the magistrate is of the opinion that there is sufficient ground for proceeding. After having framed a charge, the proceeding magistrate shall read and explained it to the accused. Next, the magistrate proceeds to hear the complainant, and consider the evidence produced in support of the prosecution or in behalf of the accused, or as may be called for by the magistrate. The accused may cross-examine the witnesses for the prosecution, and may give evidence on his behalf.
During the trial, as well as during the investigation phase, the court may question the accused as the court considers necessary. The accused may refuse to answer any questions or give false answers, but the court and the jury (if any) may consequently draw inference from such refusal or answers (Section 342 Criminal Procedure Code).
Trials before high courts and courts of session are conducted before a jury.
Matters of fact as well as matters of law (except where the trial was by jury, in which case it is possible to appeal on matter of law only) may constitute grounds of appeal. Anyone who has been ordered to give security, or any person convicted on a trial held by any second class magistrate, or in respect of whom an order has been made or a sentence has been passed by a sub-divisional magistrate of the second class, may appeal to the district magistrate. Any person convicted on a trial held by an assistant sessions judge, a district magistrate or other magistrate of the first class, or in respect of whom an order has been made or a sentence has been passed under by a magistrate of the first class, may appeal to the court of session. An appeal to the court of session or Sessions judge shall be heard by the sessions judge, or by an additional sessions judge. Any person convicted on a trial held by a session Judge, or an additional sessions judge, may appeal to the high court (Chapter XXXI Criminal Procedure Code).
Section 435 of the Criminal Procedure Code provides the possibility for the high court, or any sessions judge or district magistrate, or any sub-divisional magistrate empowered by the President of the Union, to examine the record of any proceeding before any inferior criminal court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior court.
- There are 60,053 people held in Myanmar prisons. 10.8% are pre-trial detainees and remand prisoners, according to 2009 data.
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