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The judges appointed in accordance with law are to take charge
of the entire judicial affairs across the whole Union at the courts formed
according to the Constitution or any of other laws

YANGON, 12 MARCH — The following is the presentation made by member of the National Convention Convening Work Committee Deputy Minister for Information U Thein Sein, on behalf of the Chairman of the National Convention Convening Work Committee, on the judicial sector for laying down detailed basic principles for the sharing of judicial powers to be included in the State Constitution, at Pyidaungsu Hall of Nyaunghnapin Camp in Hmawby Township, on 8 March.

I will now present the study on the appellate jurisdiction. The High Court had the jurisdiction on the appeal according to the 1947 Constitution. The present state and division courts also enjoy the appellate jurisdiction. Thus, the appellate jurisdiction should be vested in the region or state high court. According to the already-laid-down basic principles, there will be district and township courts under the region or state high courts. There will be the self-administered division court and township courts in the self-administered division, and self-administered zone courts and township courts in the self-administered zones. Hence, the jurisdiction on the appeal should be vested in the region or state high courts.

As the courts at higher levels have the duty to supervise the subordinate courts for the judgments passed by them to be fair and equal and be in accord with the law, they have to exercise the .jurisdiction of revision according to the law. The Supreme Court of the Union should also exercise the jurisdiction of revision, submitted to it within the framework of the law.

Thus, the jurisdiction of revision should be entrusted to the region or state high courts.

Of the detailed basic principles laid down in connection with the distribution of judicial power, one principle states that the judicial power of the State is distributed to “other courts constituted by law and judges appointed in accordance with law according to the State Constitution or by other laws”. Therefore, there will emerge other courts constituted by law. The Work Committee found that it is promulgated in some laws that an appeal could be lodged at a court in the past in connection with the appeal against the judgment, order and decision passed by such courts.

With Notification No 6/89 dated 28 July 1989, the government formed a tax appellate court to hear the cases born out of Myanmar Income Tax Law, Income Tax Law, Profit Tax Law, Commercial Tax Act of 1952, Commercial Premises Tax Act of 1956, Hotels and Restaurants Tax Act of 1949, Entertainment Tax Act of 1947, Myanmar Excise Act, Myanmar Stamp Act, Myanmar Court Fees Act, Sea Customs Act, and Land Act. The tax appellate court has the right to transfer to the Supreme Court the case relating to legal matters. Therefore, the Supreme Court has the right to pass judgment on legal matters submitted in connection with the judgments of the tax appellate court.

If there are provisions in any future law that enables the courts of regions or states to pass judgments, it is appropriate to vest such courts with the jurisdiction by any law so that they can open a trial on such cases.

I have presented the Work Committee’s study on which jurisdiction should be vested in the courts of regions or states. According to this presentation, the courts of regions or states should be vested with the judicatures as follows:

The courts of regions or states are vested with the following juristiction in accordance with law:

(1) adjudicating on original case

(2) adjudicating on appeal case

(3) adjudicating on revision case

(4) adjudicating on matters vested by any law

In writing the State Constitution, one of the detailed basic principles laid down for ‘the State Structure’ states that “the State is delineated and constituted with seven regions, seven states and Union territories”. Among the detailed basic principles already laid down are “Yangon City, which is the Capital of the Union, is designated as Union territory placed under the direct administration of the President of the State”; and “Cocogyun Township which has a special situation is designated as Union territory and placed under the direct administration of the President of the State”. According to these detailed basic principles, Yangon City and Cocogyun Township, which have been designated as Union territories, do not belong to any region or state, and they will emerge as separate areas placed under the direct administration of the President of the State. The point of the designation of Union territories is to enable the President of the State to directly handle the administrative affairs of areas that have special situation in connection with national defence, security, administration, economy and so on. Designated Hluttaws will carry out the matter of legislation concerning these areas. Likewise, as to judicial matters, the courts situated in these Union territories will be placed under a designated high court. According to the detailed basic principles laid down by the National Convention, the Union territory will have district courts and township courts. In view of the judicial matter, the Yangon Region High Court should be designated to be the high court of the courts situated in Yangon City and Cocogyun Township.

The National Convention has laid down a detailed basic principle that if the need arises to designate as Union territory the areas with special situation as to national defence, security, administration, economy, etc., they may be so designated as Union territories placed under the direct administration of the President of the State after enacting laws if need be. If an area located in any region or any state is designated to be a Union territory according to the Constitution, it is appropriate to designate the region or state high court concerned to be the high court of the courts situated in the said Union territory.

In connection with the judicial matters in Union territories, it is therefore necessary to discuss and suggest as to whether or not detailed basic principles should be laid down as follows:

(a) With regard to the judicial matter, Yangon Region High Court is the high court of the courts situated in Yangon City and Cocogyun Township.

(b) In case any area located in regions or states is designated to be a Union territory, the region or state high court concerned with regard to the judicial matter is the high court of the courts situated in the said Union territory.

I will now present the matters related to the distribution of judicial power to the different levels of the courts under the region or state high court.

Detailed basic principles have been laid down in connection with the formation of the different levels of the courts under the region or state high court. District courts, self-administered area courts and district courts of the Union territory should be vested with the judicial powers for the trial on the primary case, the appeal case and the revision case as regards the judgment, order and decision passed by a township court under them.

It is prescribed in the provisions of some existing laws with regard to which court alone has the power to open trials on the cases mentioned in these laws. The laws to be enacted in future will embody provisions with regard to which court alone has the power to try the cases mentioned in these laws. District courts, self-administered division courts and self-administered area courts should be vested with the jurisdiction in connection with the matters vested by any law to enable them to use such jurisdiction thus vested by any law.

It is therefore necessary to discuss and suggest as to whether or not district courts, self-administered division courts and self-administered area courts should be vested with the judicature as follows:

“District courts, self-administered division courts and self-administered area courts have the jurisdiction with regard to original criminal cases, original civil cases, or appeal cases and revision cases, or the matters vested by any law.”

I will now present the Work Committee’s study on the judicial powers of township courts. Township courts are the courts which are basically responsible to hear primary cases. Moreover, they should have the jurisdiction on the matters vested by any law. It is therefore necessary to discuss and suggest as to whether or not township courts should be vested with the jurisdiction as follows:

“Township courts have the jurisdiction with regard to original criminal cases, original civil cases, or the matters vested by any law.”
The judges appointed in accordance with law are to take charge of the entire judicial affairs across the whole Union at the courts formed according to the Constitution or any of other laws. In connection with the appointment of judges, the distribution of judicial powers to them, the designation of their duties, rights and privileges, and the formation of service organizations at such courts and the designation of their duties, rights and privileges, the National Convention has laid down detailed basic principles as follows:

“(a) Appointing judges at various levels of courts under the High Court of the Region or State; giving them judicial powers; and prescribing their duties, rights and privileges shall be in accordance with law;

(b) forming service organizations comprising officers and other ranks at the Supreme Court of the Union, High Courts of Regions or States and other courts and prescribing duties, rights and privileges of service personnel in them shall be in accordance with law.”

Subject to the provisions of the Constitution, necessary laws are to be enacted in connection with the proper practice of judicial powers by the Union Supreme Court that will come into existence according to the Constitution, the high courts of regions or states and their subordinate courts at different levels, and the effective functions and systems of respective courts; or in connection with the matters related to the supervision of courts, judiciary management and the appointment of judicial officers; or in connection with the designation of duties, rights and privileges of judges.

I have presented the matters related to judicial matters in the legislative sector. These matters have been embodied in the detailed basic principle that should be laid down for the submission of the Bill by the Pyidaungsu Hluttaw. It will therefore not be necessary to lay down again a detailed basic principle in the delegation of judicial power. In connection with the entire judicial affairs to be carried out, it is however necessary to discuss and suggest as to whether or not a detailed basic principle should be laid down as follows:

“The judges appointed in accordance with law are to take charge of the entire judicial affairs across the whole Union at the courts formed according to this Constitution or any of other laws.”

In connection with the financial matters related to the Union Supreme Court, and the courts of regions or states and their subordinate courts, the Union Supreme Court should be vested with the power to manage and supervise as deemed proper. It will be necessary for the Union Supreme Court to take charge of the matters related to the budgets of the courts at different levels, in other words, matters related to the annual budget. It is therefore necessary to discuss and suggest as to whether or not the Union Supreme Court should be vested with the powers and functions as follows:

“The Union Supreme Court shall submit judiciary budget to the Union government to express them in the Bill of the Annual Union Budget in accordance with the provisions embodied in this Constitution.”

The Chief Justice of the Union should have the right to submit the important judiciary condition concerning the State or the public in writing to the session of the Pyidaungsu Hluttaw, or to the session of the Pyithu Hluttaw or the Amyotha Hluttaw on an occasional basis. It is therefore necessary to discuss and suggest as to whether or not a detailed basic principles should be laid down as follows:

“The Chief Justice of the Union shall have the right to submit the important judiciary condition concerning the State or the public in writing to the session of the Pyidaungsu Hluttaw, or to the session of the Pyithu Hluttaw or the Amyotha Hluttaw on an occasional basis.”

I will now sort out the detailed basic principles that should be adopted in connection with the distribution of judicial power that shall be embodied in the writing of the Constitution based on the studies I have presented.

1.“(a) The Supreme Court of the Union shall have the exclusive original jurisdiction —

(1) in all matters arising under any treaty made by the Union;

(2) the disputes, other than the constitutional disputes, between the Union Government and region or state governments,

(3) the disputes, other than the constitutional disputes, among the regions, among the states, between regions and states and between Union territories and regions or states

(4) other matters prescribed by any laws

(b) as the Supreme Court of the Union is the highest court of the State, it is also the final appellate court

(c) as the judgments passed by the Supreme Court of the Union are final and conclusive, no right of appeal shall be permitted

(d) The Supreme Court of the Union, subject to any provisions of this Constitution or any provisions of other law, shall have the appellate jurisdiction to decide on the judgments passed by the region or state high courts. The Supreme Court of the Union shall also have the appellate jurisdiction to inspect and decide on, according to the law, the judgments passed by other courts.

(e) The Supreme Court of the Union shall have the jurisdiction of revision according to law.”

2.“(a) The Supreme Court of the Union has the power to issue the following writs:

(1) Writ of habeas corpus

(2) Writ of mandamus

(3) Writ of prohibition

(4) Writ of quo warranto

(5) Writ of certiorari

(b) The submission for issuance of writs shall be suspended in the areas where the state of emergency is declared.”

3. “The courts of regions or states are vested with the following jurisdiction in accordance with law:

(1) adjudicating on original case

(2) adjudicating on appeal case

(3) adjudicating on revision case

(4) adjudicating on matters vested by any law”

4. “(a) With regard to the judicial matter, Yangon Region High Court is the high court of the courts situated in Yangon City and Cocogyun Township.

(b) In case any area located in regions or states is designated to be a Union territory, the region or state high court concerned with regard to the judicial matter is the high court of the courts situated in the said Union territory.”

5. “District courts, self-administered division courts and self-administered area courts have the jurisdiction with regard to original criminal cases, original civil cases, or appeal cases and revision cases, or the matters vested by any law.”

6. “Township courts have the jurisdiction with regard to original criminal cases, original civil cases, or the matters vested by any law.”

7. “The judges appointed in accordance with law are to take charge of the entire judicial affairs across the whole Union at the courts formed according to this Constitution or any of other laws.”

8. “The Union Supreme Court shall submit judiciary budget to the Union government to express them in the Bill of the Annual Union Budget in accordance with the provisions embodied in this Constitution.”

9. “The Chief Justice of the Union shall have the right to submit the important judiciary condition concerning the State or the public in writing to the session of the Pyidaungsu Hluttaw, or to the session of the Pyithu Hluttaw or the Amyotha Hluttaw on an occasional basis.”

I would like to conclude by requesting whether or not detailed basic principles should be laid down in connection with the distribution of judicial power.