The June edition of the New Era Journal, a Burmese-language monthly published in Bangkok, carried a letter from an unnamed senior lawyer practicing in South Dagon, greater Rangoon.
According to the author, to be selected for the test to become an apprentice judge these days a lawyer needs to pay the selecting panel 3 million kyat – upwards of US$2,500. The writer lamented that although senior judges know about this they turn a blind eye.
The claim is interesting but not remarkable. In Burma, where people have to put up extra cash for everything from a mobile phone permit to a hospital bed, or even a mat on the floor, why not also for a court verdict? After all, the judges have paid to get their posts, and surely expect something in return.
When an advocate practicing in Rangoon was asked a while ago roughly how much it costs to win an ordinary criminal case he laughed and replied with his own questions, as to which type of case, involving who as the defendant and victim, and in which township or district it would be heard. His intricate knowledge of brokering now rivals his knowledge of the law itself.
That Burma’s courts are places where services are provided to the person with the highest offer is also unsurprising when they are compared to those in the country’s neighbors. From Bangladesh to Indonesia, judges cut deals and entertain proposals that have nothing to do with their job descriptions.
Although it is often the local courts that come under the most scrutiny, much of the blame usually deserves to be laid at the top levels, with the mealy-mouthed high justices who attend international conferences and talk about law as if they actually believed in it.
Across Asia, it is where these senior figures have been compromised that the most severe systemic damage has been caused.
In Sri Lanka, the current chief justice was given the job ahead of other more senior and respected persons because he was the personal choice of the former executive president. She even went so far as to shut down Parliament to prevent him from being impeached, even though his alleged dirty dealings and contempt for international law have brought the country’s once credible judiciary to an all-time low.
In Thailand, the military regime that took power in 2006 dismissed a senior court and then blithely insisted that the country’s judiciary was independent. The new Constitution it forced through via an electoral charade has needlessly embroiled the top courts in politicking, and it is hardly surprising that a lawyer representing the former prime minister was recently caught in the Supreme Court building with a snack box full of cash.
By contrast, the chief justice and judges of the high courts in Pakistan in the last year literally put their lives and liberty at stake by refusing to acquiesce to the army. Their struggle has so far not only kept the judiciary afloat but has kept their country from going over the edge beyond which Burma passed a long time ago.
After his second coup in 1962, General Ne Win growled about how criminals and “people against whom our armed forces have fought battles” were being let out of custody, and promised to put a stop to such nonsense. The Supreme Court (above) was made answerable to his cabal of army officers, and arbitrary detention and other abuses quickly became unchallengeable.
The courts’ structure was left more or less untouched for another decade, but the damage had been done. With the highest court no longer able to defend itself, the entire judiciary was degraded and later easily swallowed up into a system of “people’s courts” presided over by tribunals comprised of members with no knowledge of law.
When the whole thing came to pieces in 1988, the revamped military regime quietly went back to the old model of compliant legal officers in a prefabricated structure that gives the army the final word. The junta was by now through with experiments and apparently cognizant that as long as the uppermost courts were under its control, the rest would surely follow. And so things have remained since.
Meanwhile, one uniformed hypocrite after another has issued stern warnings about corrupt practices among judges and lawyers, accompanied by a crackdown now and then, nothing of which has slowed the spread of profiteering through the courts, for the reason that this cannot be done without threatening the survival of the regime itself.
A relatively uncorrupted judiciary can exist only where there is a relatively uncorrupted, independent and credible upper judiciary. When senior judges are generals’ and presidents’ yes-men, where they allow themselves to be pushed around by coup makers, or where they are just outright corrupt, no amount of lecturing or making of special inquiries will redeem their subordinates.
Without independent superior courts, the selling of places for a judicial exam is just a fact of life, and in Burma a few million kyat a small price to pay for a chance to get in on the action. The disgruntled lawyer from South Dagon has by now probably paid the 3 million.