The International Legal Foundation
Year: 2021
Language: English/Burmese
Type: Research Report
Pages: 30
Organization: The International Legal Foundation
Co-Organization:
Sponsor: UNICEF and MyJustice(British Council)
ရီမန်ခေါ်ချုပ်မိန့်အဆင့်တွင် ဥပဒေအကျိုးဆောင် (ရှေ့နေ) လိုက်ပါဆောင်ရွက်ခြင်းကို မြန်မာနိုင်ငံဥပဒေများတွင် ခွင့်ပြုထားပါသည်။ စွပ်စွဲခံရသူ၏ အခွင့်အရေးများကို အကာအကွယ်ပေးရန် အလို့ငှာ အစောပိုင်းအဆင့်မှစ၍ ဥပဒေအကျိုးဆောင် လိုက်ပါဆောင်ရွက်ခြင်း၏ ဥပဒေအခြေခံကိုလည်းကောင်း ရီမန်အဆင့်တွင် ဥပဒေအကျိုးဆောင်လိုက်ပါဆောင်ရွက်ပေးမှုရရှိရေးမှာ အခွင့်အရေးတစ်ရပ်ဖြစ်သင့်ကြောင်းကိုလည်း ဖော်ပြထားပါသည်။
The police must have sufficient cause in order to arrest an individual. In some cases, the police must seek an arrest and/or search warrant from a judge prior to arrest. The accused has the right to be represented by a lawyer from the moment of arrest. See Arrests and Searches.
The police must bring the accused before a judge within 24 hours after arrest for a remand hearing. The accused cannot be detained beyond 24 hours without a court order. Depending on the circumstances, the court may order the further detention of the accused for 15-30 days for the purpose of police investigation. See Detention.
In most cases, the accused is entitled to submit a request for bail to the presiding judge. See Bail.
The law officer (or private lawyer under the supervision of law officer) presents witnesses and evidence against the accused. The accused is entitled cross-examine each prosecution witness and challenge evidence. See Trial proceedings for more detail.
Before the judge determines whether or not to frame the charge/s, the judge will allow both sides to present an argument. The prosecution may also argue a rebuttal. The judge will then determine whether or not the prosecution side has presented sufficient evidence to frame the charges against the accused. If the charges are framed, the judge may then ask the accused to admit or deny the charges.
Discharge means if the presiding judge found no enough evidence to charge the accused after examination of the complainant and prosecution witnesses, he may discharge the accused without framing any charges. But if enough evidence was found later, the accused can be charged again with the same offence.
The accused will firstly be asked whether he or she would like to recall any prosecution witnesses. The accused will then be given the opportunity to present witnesses and evidence in his or her defence. The accused may also testify. See Trial proceedings.
Throughout the whole court proceeding, the accused has a right to revision until the final argument stage has been reached. The accused can file a motion to a higher court if she/he thinks that there is wrongful procedural order by the original court's judge.The revision needs to be filed within 30 days from township, court to district court.
Before the Judge makes his/her final decision, both prosecution and the accused will be given a chance to present a final argument to the judge. This may be submitted in writing or by oral argument in court.
Acquittal means after hearing all the evidence and witnesses from prosecution and defence, if the presiding judge found out that the accused is innocent (or) there is no concrete evidence that the accused has committed the alleged offence, he may acquit the accused. In that case, the accused cannot be prosecuted again for the same offence.
The judge will convict or acquit the accused based on whether or not the prosecution proves with evidence every element of the offence/s charged beyond a reasonable doubt. If the accused is convicted, the judge will then determine the appropriate sentence according to the law.
The accused has the right to request that a higher court review the conviction and/or sentence. The prosecution side also has the right to request that a higher court review the acquittal and/or sentence.
Either police or military members conduct arrests without warrant. In most cases, arrestees are taken into military custody and undergo interrogation which often takes for several days and weeks. During the interrogation, lawyers or family members of family do not have access to them.
Afterwards, the arrestees are handed over to the police which develops the FIR (first information report). During the investigation, in many cases, police detain them with court order. Although the accused has the right to bail under the law, it is quite rare that the accused are bailed since the coup.
Then, they were transferred to prisons where they are detained and face trials in prison courts. At this stage, the accused have access to legal counsel.
Although the accused is entitled to cross-examine witnesses and challenge evidence. There is no healthy environment for lawyers who try to challenge or cross-examine. Lawyers are subjected to threats and harassments by judges or security officials at the courthouse.
Regardless of the argument or evidence, in most cases, the judge, believed to be under pressure, prosecutes the accused.
Lawyers and accused often present witness and evidence only to take the benefit of meeting with family members (they are not allowed to meet with accused who are detained in prisons apart from these occasions).
The accused hardly files a motion to a higher court in practice. Application of writs has also been suspended since the coup last year.
Regardless of proper evidence, almost in all cases, the judges will convict the accused and sentenced to prison terms.
Many accused have lost faith in the appeal process as they do not believe in the justice system under the military rule. Thus, many accused are not interested in the appeal process at all.
Without court order, those arrested in the areas under martial law are typically taken into military custody and held in undisclosed locations. In some cases, accused persons are held in police station. Once detainees are transferred to the prison system, they are often not able to meet or communicate with family or legal counsel in these types of cases.
Persons convicted in a military tribunal may face life imprisonment or the death penalty.
The death sentence can only be issued with the approval of the SAC Chairman
Hard labour for unlimited years, only with the approval of the Commander.
Maximum sentence of the prescribed offense
The decisions of these tribunals are final. Even though the decision of these tribunals cannot be appealed to court, it can be submitted to SAC Commander in Chief or Local Command for revision.
The Commander in Chief or the applicable Commander are vested with the power to abolishing a decision in a case, increasing or commuting a sentence, or changing a sentence to another lesser one. They may also exert the authority to affirm a military tribunal conviction.
Application
Application must be made within 15 days from the day of a final judgement, applications can be made to the Chairperson of SAC, in case of death penalty.
Application must be made within 15 days from the day of a final judgment, applications can be made to the respective Command, in case of other sentences.
