Court Procedure and Court Processes
- Civil and Criminal matters are differently dealt with by four different levels of Courts or four tiers of Courts such as
- Union Supreme Court,
- High Courts of the Regions or State
- the Courts of Self-administered Division, Courts of Self-administered Zone and District Courts,
- Township Courts including the special Courts such as Juvenile Courts, Municipal Courts and Traffic Courts,
There are mainly two types of cases before the Myanmar Courts which are the civil case and criminal case.
Generally speaking, the judicial proceedings for civil cases are commenced by submitting a complaint, to the competent Court of first instance which has the jurisdiction to adjudicate it, along with the necessary documents that the plaintiff attaches or relies on, ad valorem Court-fees stamps and summons fees to the Court registry etc.
The Courts of First Instance are or will be the Township Courts for civil cases in which suit-values are not more than 100 Lakhs (or 10 million Kyats), and the Courts of First Instance are or will be the Courts of Self-administered Division, Courts of Self-administered Zone and the District Courts for which the suit-values are more than 100 Lakhs and not more than 10000 Lakhs (or one billion Kyats). For the civil cases in which the suit-values are more than 10000 Lakhs (or one billion Kyats) the Courts of First Instance are or will be the High Courts of the Regions or States.
The particulars and the facts that should be contained in the complaint are provided in the Order VII of the Civil Procedure Code. The briefs of the particulars and facts contained in the complaint are the particulars of the plaintiff and defendants, a statement of claim and the relief sought, suit value and the time or period when the cause of action has arisen etc.
For the purposes of suit valuation and jurisdictions, the plaintiff must set and express the value of the suit in the complaint, and must affirm that his suit has been submitted within the limitation periods prescribed by the Limitation Act by describing the date when the cause of action had arisen.
The complaint can be submitted by the plaintiff in person or by his representative or by his lawyer. After receiving the complaint and the documents attached, the responsible judicial officer accepts and checks these documents and sends them with his comments to the head of judges of the respective Court after registering and opening the case as a civil suit.
Based on the suit value and the Civil Jurisdictional Power that has been conferred on the individual judges sitting in this Court, the head of judges distributes the case to the subordinate judges to deal with the trial. When the trial judge summons the defendant, he may appear in person or by recognized agent or lawyer. Based on the complaint submitted, the defendant may admit or make the written statement or file a counter claim to the claims made by the plaintiff.
At any stage of the proceedings, the plaintiff or the defendant may apply to the judge for provisional remedies including injunctions, and also make any application for discovery and inspection of the related documents, and ask the related written questions regarding the facts of the case to the other party.
And according to his own will or the instruction of the Court, the other party has to show the related documents that he possesses, and give the answers or admissions in affidavits relating to the facts of the cases, and the judge can take these facts contained in the documents, answers and admissions made by the other side into considerations.
After this stage, the judge will frame issues of law or fact issues or both based on the matters in disputes between the plaintiff and the defendant, and will hear and decide the case in accordance with such issues framed.
The day on which the Court frames the issues is called the first hearing date of the suit, and if the plaintiff fails to appear before the Court on that date, his suit may or will be dismissed, and if the defendant fails to appear before the court on that date, the suit may or will be heard and decided without hearing the defendant and his witnesses.
In Myanmar, the process of the civil proceedings from the beginning stage to end including the pre-trial conferences are conducted by the trial judge. After framing the issues, the process of hearing or trial will be started. The processes of the examination-in-chief, cross-examination and re-examination in Myanmar are done by way of having the parties and their witnesses statements before the Court.
Like other countries, the burden of proof is always on the plaintiff to make out his suit or to prove his case on a balance of probabilities. After the hearing and making of closing arguments from both sides at the end of the trial, the Court will pronounce final judgment and decree.
If the Court grants the plaintiff’s suit, a judgment and decree will or may be enforced by the decree-holder (the plaintiff) against the judgment- debtor (defendant).
To be able to enforce such decree, the decree-holder must institute an execution case against the judgment- debtor before the Court where the plaintiff; suit was awarded the judgment or decree, and the Court which had pronounced such judgment or decree may enforce it by itself or transfer such judgment and decree to any other Court where the subject-matters are situated or to the Court where the defendant resides.
If the Court rejects the plaintiff’s suit , he can appeal to the Union Supreme Court step by step. For submitting a civil appeal or revision against a decision or an order made by any Court of first instance, the party who is dissatisfied with it can submit an appeal or revision to the nearest level of Superior Court to it. E.g if a party is dissatisfied with the decision of the Township Court, he can submit an appeal or revision to the respective Court of Self-administered Division or Court of Self-administered Zone or the District Court, and up to the last resort Court step by step.
All criminal prosecutions are mainly governed by the Criminal Procedure Code in Myanmar. The Criminal Procedure Code provides the necessary provisions for the process and procedure on how criminal action is dealt with for a trial and the adjudication of the case.
Under this Code, a criminal proceeding starts either by the submission of a complaint or by the making of a police report. So, anyone can make a complaint to the Court or make a first information report to the police as to the commission of an offence.
After getting the First Information Report (FIR), the process of investigation is started by the police, and the respective law officer from the Union Attorney-General’s Office gives legal and prosecutorial advice to the police investigation officers.
After investigation, the police investigation officer prosecutes the suspect alleged to have committed the criminal offence and brings him before the Court with or without bail, and the respective law officer from the Union Attorney-General Office will handle this case as a public prosecutor.
Unlike other countries, the law officer from the Union Attorney-General’s Office has the power to give prosecutorial advice as to which offence should be charged against the offender in a police charge sheet.
Based on the police charge sheet, the Court will adjudicate over the trial, and may amend, discharge or confirm such charge against the offender in accordance with the evidence of or statements made by the prosecution witnesses.
During the trial, the accused has a right to make his defense with the assistance of a lawyer. According to the Legal Aid Law, an accused person who is poor can now apply for free legal aid services from any Legal Aid Services Provider. The accused person may also apply for bail, but not all offences are bailable. If the offence is bailable, the accused person has to submit at least two sureties who will guarantee the accused’s compliance with certain terms and conditions including his personal attendance before the Court at every adjournment. When the accused fails to abide by these terms and conditions, his bail will or may be forfeited by the Court.
If the accused admits to the charge made against him, the Court will proceed to convict him, and when the accused does not plead guilty, the Court will continue to examine the accused and his witnesses (if any).
The process of the examination-in-chief, cross-examination and re-examination in criminal proceedings are done by way of having the parties and their witnesses make statements before the Court. After the processes of examination and the making of closing arguments from both sides at the end of the trial, the Court will pronounce final judgment and order whether the accused is convicted or acquitted.
In the case of a direct complaint submitted to the Court, the Court has the power to investigate by itself or get the respective police officer or other judge to investigate the complaint. If and when there is prima facie evidence to prosecute the accused, the Court will adjudicate over the trial, and if not, the Court will dismiss the complaint.
Generally, all criminal proceedings start at the lowest level of the Court that has the jurisdiction to adjudicate the offence alleged, and the powers of each level of the Court to set punishments are different.
Generally speaking, the Courts of First Instance which deal with most of the criminal offences which are punishable with up to 7 years imprisonments and/ or unlimited fines are the Township Courts, and the Court of First Instance which deal with most of the criminal cases which are punishable with more than 7 years imprisonments and /or unlimited fines up to the Death sentence are the Courts of Self-administered Division, Courts of Self-administered Zone and the District Courts.
The High Courts of the Regions or State and the Union Supreme Court are the Appellate and Revisionary Courts for the criminal matters, and the Special Appellate Bench or Full Bench of the Union Supreme Court is the highest Court or the last resort for the criminal appeal or revisionary cases.
Under the Criminal Procedure Code, anyone who is dissatisfied with the decision of the Court of First Instance, can appeal to the respective Superior Court up until the Special Appeal Bench of the Supreme Court step by step.
In Myanmar, the Courts also oversee the action or decision of administrative and quasi-judicial tribunals by exercising the powers to issue writs. Historically, the power to issue writs was vested under Article 25 of the Constitution of the Union of Myanmar (1947). And the same has now been vested to the Supreme Court of the Union under Article 296 of the Constitution of the Republic of the Union. Therefore, anyone who would like to get remedy under writs has to apply only to the Supreme Court of the Union.
There are five kinds of writs that the Supreme Court of the Union has the power to issue under Article 296 (a) of the Constitution as follows:
- Writs of Habeas Corpus,
- Writs of Mandamus,
- Writs of Prohibition,
- Writ of Quo Warranto
- Writ of Certiorari.
The reason for empowering this to the Supreme Court of the Union under the Constitution is to supervise the performance of the quasi-judicial functions of the administrative authorities which may infringe the lawful rights of a citizen by balancing the interests of the State and its Citizens in order that their actions must be fair and just, and in accordance with the law.
The Supreme Court of the Union can give remedy by issuing writs when an act of an administrative authority or of a Court is ultra vires or is done without proper authority, or fails to do any duty which he has to do under the law, or when an order appears to be legally wrong on the face of it, or when it is inconsistent or contradictory with the rules of Natural Justice.
It is necessary to make application for writ within two years from the date of the cause of action when the petitioner suffers any harm because of an act or decision of an administrative authority or of a Court.
The application for writ must be made in accordance with the rules of the Law on the Application for Writs prescribed by the Supreme Court of the Union. The facts that should be contained in the application are the particulars of the writ petitioner and the respondent, the writ the petitioner is seeking, the facts of the cases explaining what, when, how and how much the petitioner suffered damages or losses in detail because of the act or the decision of the respondent. The petitioner must sign and submit his application for writ along with an affidavit supporting his application.
If the petition is submitted by the one who is convicted through the respective jailor, no court-fee stamp is necessary. However, any other petition shall be affixed with necessary Court-fee stamp for the application and the summons. If the petition for writ does not meet or contain the necessary requirements set by the laws, it may be rejected.
There are two steps in the process of hearing and deciding the writ petition, one is for the preliminary hearing for case admission and the other is for the final hearing.
At the preliminary hearing, the Bench including three Justices from the Union Supreme Court will hear the petitioner only, and decide whether the writ petition is admitted or not. If the bench admits the petition, the bench will summon the respondent and make him submit the written reply to the petition, and will hear and decide finally.
The order set by the Bench for final hearing is final and conclusive, and the person who is dissatisfied with this order has no right to submit any appeal or revision or judicial review.