- The military established a new Supreme Court in 1988⁴³ and has since appointed and dismissed many judges, demonstrating a complete absence of tenure. In late 1998 the military stated that five (of the six) Supreme Court Judges were 'permitted' to
retire.,⁴⁴

This lack of judicial independence makes it very difficult for the common law to operate. However, some commentators say the courts have some degree of independence in cases that do not have political interests for the military⁴⁵

There are other signs that may suggest a greater resilience in the common law. A study of Burma's Supreme Court decisions in 1998 shows that the Court does make some reference to earlier decisions (including to cases from pre 1947, 1947-1962 and after 1962).⁴⁶ This appears a move closer to one aspect of the common law system, than was the case under the 1973 court manual.
The military's Judiciary Law 2000⁴⁷ regulates the courts' operation and therefore the potential for the common law. There are various aspects in this law that support or contribute to the continuation/use of common law
.
- The Judiciary Law establishes a Supreme Court,⁴⁸ vests it with jurisdiction in many areas,⁴⁹ and empowers it to func tion through employing staff and issuing rules.⁵⁰
- The Judiciary Law enables a court hierarchy and prece dent system to operate and for the lower courts to follow the decisions of the Supreme Court. It does this by specifying the structure of Burma's court system with the Supreme Court above the State, District and Township Courts,⁵¹ and through providing a right of appeal .⁵²
- The Judiciary Law gives the courts the power to make orders similar to common law remedies of habeas corpus and certiorari. These words are not specifically used in the Judiciary Law,⁵³ and should the courts chose to exercise these powers, any orders made would be pursuant to the Judiciary Law and not the common law. However, given the lack of direction in the Judiciary Law as to when and how these powers should be exercised, it is quite conceiv able the courts could refer to previous decisions and com mon law principles in exercising these powers.

The Judiciary Law 2000 also has other aspects that, while they do not mandate its use, are consistent with the common law being used by Burma's courts. For example the military appoints Su­preme Court judges,⁵⁴ and there is a 'guarantee ... in all cases [of]
the right of defence'.⁵⁵ However caution should be exercised in relying too heavily on these words because there is sometimes a difference between what the law provides and the degree to which judicial independence exists in practice. ⁵⁶ In Burma, as in some other common law countries (eg. New Zealand, Australia), the executive has almost complete freedom in who they appoint as judges. This system has permitted the appointment of some very good judges, however in Burma this freedom, together with the lack of judicial tenure, has been used by the military to ensure a compliant judiciary.⁵⁷

Regardless of the actual degree of independence where the law is neutral, there are some provisions in the Judiciary Law
2000 that clearly act as obstacles to the common law's use in Burma. The main areas in this regard are noted below.

- Courts are charged with non judicial responsibilities. For example, "The administration of justice shall be based upon ... principles [including] aiding in the restoration of law and order and regional peace and tranquility... [and] aiming at reforming moral character".⁵⁸
- The Supreme Court is given wide-ranging powers to inter fere in the independence of other courts in conducting their business. The Supreme Court has the power to order cases be transferred to it, or that they be transferred from "any Court to any other Court".⁵⁹
- The Supreme Court also has extensive powers in relation to the creation and supervision of the lower courts⁶⁰ and appointment of their judges.⁶¹ These provisions can seri ously impair the independent exercise of the judicial func tions in the lower courts.

43. By itsDeclarationNo.5/88of27September1988, the State Law and OrderRestoration Council appointed a Supreme Court with five members as the highest judicial court in the country. The Supreme Court is headed by Chief Justice UAung Toe', Myanmar military's website <http://mission.itu.ch/MISSIONS/Myanmar/basicfacts/ organs.htm>, accessed 27 Sept 2006.

44. 'The State Peace and Development Council has permitted the following Supreme Court Justices to retire from duties', see Military's notice, Information Sheet No. A­0694(1), 15 November 1998, <www.myanmar-information.net/infosheet/1998/981115.htm>, accessed 22 March 2004

45. A study of the 1998 reported cases in Burma suggests that, outside of political cases or cases in which the military has an interest, the legal system is operating acceptably (assessment by Burmese lawyerMrBKSen). The military's unexplained replacement of 80% of the Supreme Court judiciary in November 1998 perhaps indicates there was a degree of independence operating until that time', J Southalan, `Impunity and Judicial Independence', 2004, Legal Issues on Burma Journal, no 17, p40 at 70, available at <http://wwwblc-burma.orglpdf/liob/liobl7.pdf> accessed 11 December 2006.

'Burmese opposition groups in exile have stated that they have received reports that the MIS is interfering with judicial discretion, especially in politically motivated cases. The Supreme Court judges were among those who suffered from pressure from the MIS.', Burma Lawyers Council, 'JUDICAL REFORMS: An Urgent Need for Judicial Reform in Burma', Legal Issues on Burma Journal, No 3, as reported at <www.hrsolidarity.net/mainfile.php/1999volO9noO8/l242/>, accessed 11 December 2006.

46. See Myint Zan, 'A Comparison of the First and Fiftieth Year of Independent Burma's Law Reports' (note 27 above). Myint Zan notes, however, that the 1998 Supreme Court makes far less reference to earlier cases in its decisions than did the Supreme Court fifty years earlier. ;

47. State Peace and Development Council, Law No 5/2000, The Judiciary Law, 2000, 27 June 2000, NewLight ofMyanmar newspaper ('Judiciary Law'). As reported at < wwwblc-burma.org/html/Myanmar%20Law/lr e ml00 05.html>, accessed 10 December 2006.

48. Section 3, Judiciary Law.

49. Section 5, Judiciary Law.

50. Sections 27 and 26 (respectively), Judiciary Law.

51. Sections 5(d), 6, 7 and 14-22, Judiciary Law
.
52. Sections 2(j), 5(d), 15 & 22, .Judiciary Law.

53. The Judiciary Law states the courts have the power to 'inspect prisons [and] ... police lock-ups for enabling convicted persons and those under detention to enjoy rights to which they are entitled to in accordance with law' (section 25 - equivalent of habeas corpus), and 'examin[e] ...any order and decision which is not in conformity with the Law relating to the legal rights of a citizen and altering or setting f it f aside as may be necessary' (section 5(h) - equivalent of certiorari).

54. Section 3, Judiciary Law.

55. Section 2(J), Judiciary Law.

56. A study of judicial independence in Latin America emphasises the sometimes significant difference between independence 'de facto' and 'de jure'. That is, constitutional or statutory laws may indicate the judiciary has independence but the political realities are such that any legal independence is not exercised in reality. A Pozas Loyo&JRios-Figuera 'When and Why Do "Law" and "Reality" Coincide? DeJure and De FactoJudicial Independence in Chile and Mexico' (2006) at <http: //homepages.nyu.edu/-jrf246/Papers/APL_JRF Final3.pdf>, accessed 13 December 2006.

57. 'Some judges want to perform their tasks as legal professionals while others bow to pressure from the MIS so as to retain their appointments. ... The removal of five out of six judges in the Supreme Court led observers to understand that the military junta has no tolerance for independent judges. In fact the situation is even worse than international observers realize, as the removal of judges at lower levels is unknown to the international community. ... (Burma's) judicial system has been totally converted into a tool serving the military junta', Burma Lawyers Council, 'JUDICAL REFORMS: An Urgent Need for Judicial Reform in Burma', (see note 45 above).

58. Section 2, Judiciary Law.

59. Section 5(b)&(c), Judiciary Law.

60. Section 12, Judiciary Law.

61. Section 13, Judiciary Law.

62. eg. decision Chaney J, Superior Court of California John Doe and o'rs -v- Unocal Corporation (see note 39 above); Myint Zan, 'A Comparison of the First and Fiftieth Year of Independent Burma's Law Reports' (see note 27 above); and A Huxley, 'Case Note: Comparative LawAspects of the Doe v Unocal Choice ofLaw Hearing' (sec note 12 above).

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