98 Dagon University Research Journal 2020, Vol.

11

Writ Jurisdiction in Myanmar

Mi Khin Saw Aung

Abstract

The main objective of issuing writs has always been to protect the interests of people and
safeguard their fundamental rights. In Myanmar, writ jurisdiction was present during the
colonial period under the British law and continued to exist after gaining independence in 1948
with the adoption of the 1947 Constitution of the Union of Burma (Myanmar). With the
introduction of socialist system that came along with the 1974 Constitution of the Socialist
Republic of the Union of Burma (Myanmar), the practice of writ jurisdiction ceased to exist
until the promulgation of the 2008 Constitution of the Republic of the Union of Myanmar. The
2008 Constitution recognizes the right to constitutional writs, and this provides a check on the
power of the executive and an avenue for individuals to challenge the decisions of the
subordinate courts. At present, under the respective provisions of the 2008 Constitution, the
Supreme Court of the Union has the power to issue five kinds of writs: Habeas corpus,
Mandamus, Prohibition, Quo Warranto, and Certiorari. This study will examine the
applications and practices of writs in Myanmar after 2011 with a focus on the frequency of
cases for each kind of writs.
Keywords: Fundamental rights, Constitution, Writ, Jurisdiction, Myanmar.

Introduction

The origin of the writ began in the English legal system. In English Common Law
System, the principal machinery of review over quasi-judicial functions was provided by
prerogative writs. In Myanmar, the power to issue writs was practiced since the colonial
period. The High Court of Judicature at Yangon had the power to issue writs before
independence. After independence, under the 1947 Constitution of the Union of Burma
(Myanmar) the power to issue writs was transferred to the Supreme Court. There was no writ
jurisdiction in Myanmar under the Constitution of the Socialist Republic of the Union of
Myanmar, 1974. At present, under the Constitution of the Republic of the Union of Myanmar,
2008 writ jurisdiction has been practiced again by the Supreme Court of the Union. The main
objective of issuing writs is to protect or safeguard the interest and the fundamental rights of
the people. The Constitutional writs are the only means to seek judicial review of an
administrative decision in Myanmar. The issue of the writ is practiced for both civil and
criminal matters. This paper examines the practice of five kinds of writs in Myanmar after
2011.

Historical Background of Writs in Myanmar

Under the rule of Myanmar Kings, the administration of justice was carried out by the
so-called 'five Courts of the Hlutt'. The Hluttaw, one of the five courts, was the most
important of all the administrative, legislative and judicial institutions. At that time, the writ
jurisdiction was not exercised by any of these five Courts of Hluttaw.


Professor, Dr., Head of Law Department, Dagon University
Dagon University Research Journal 2020, Vol. 11 99

Under the British Rule, the High Court of Judicature at Rangoon (Yangon) was the
highest court of appeal with jurisdiction over the whole colonial Myanmar. This Court was the
first court in Myanmar to have the power to issue writs. After independence the Supreme
Court had jurisdiction throughout the whole of the Union and its decisions were binding on all
Courts. Section 25 of the Constitution of the Union of Burma (Myanmar), 1947 invests the
Supreme Court with the power to issue five kinds of writs for enforcement of fundamental
rights of the people granted by the Constitution.
Under the Constitution of the Socialist Republic of the Union of Burma (Myanmar)
1974, the writ jurisdiction system was not exercised.
In 1988, the State Law and Order Restoration Council promulgated a Judiciary Law
for the formation of courts in the Union of Myanmar. According to this law, the Supreme
Court was the highest judicial organ. In 2000, a new Judiciary Law was promulgated by the
State Peace and Development Council. Under this law, the Supreme Court was still the highest
judicial organ of the Union of Myanmar. At that time, writ jurisdiction could not be exercised
by the Supreme Court.
The Constitution of the Republic of the Union of Myanmar, 2008 came into force on
st
31 January 2010. Under Section 296 of this Constitution, the Supreme Court of the Union has
the power to issue writs of habeas corpus, mandamus, prohibition, quo warranto, and
certiorari.

Provisions relating to writs in Myanmar

Section 378 (a) of the Constitution of the Republic of the Union of Myanmar, 2008,
provides that in connection with the filing of an application for rights granted under Chapter
VIII of the constitution (Citizen, Fundamental Rights and Duties of the Citizens) the Supreme
Court of the Union shall have the power to issue writs as suitable. The right to issue writs by
the Supreme Court of the Union shall not affect the power of the other Courts to issue an order
that has the nature of writs according to existing laws.1 According to Section 296 (b) of this
Constitution the application to issue writs shall be suspended in the areas where the State of
emergency is declared.

Section 16 (A) of the Union Judiciary Law 2010 also grants the Supreme Court of the
Union the power to issue the writs. Besides the Constitution and Union Judiciary Law, there
are similar provisions for the power of issuing a writ in Section 491 of the Code of Criminal
Procedure and Section 45 of the Specific Relief Act. The High Court has the power to issue
directions of the nature of a habeas corpus under Chapter 37 of the Code of Criminal
Procedure.
Section 491 of the Code of Criminal Procedure provides that:
(1) any High Court may, whenever it thinks fit, direct-
(a) that any person within the limits of the appellate criminal jurisdiction be brought up
before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within
such limits be set liberty;
1
Section 378 (b) of the Constitution of the Republic of the Union of Myanmar, 2008.
100 Dagon University Research Journal 2020, Vol. 11

(c) that a prisoner detained in any jail situate within such limits be brought before the
Court to be there examined as a witness in any matter pending or to be inquired into such
Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any
Commissioners acting under the authority of any commission from the President of the Union
for trial or to be examined touching any matter pending before such Court-martial or
Commissioners respectively;
(e) that a prisoner within such limits be removed from one custody to another for trial;
and
(2) The High Court may, from time to time, frame rules to regulate the procedure in
cases under this section.
(3) Nothing in this section applies to a person detained under the Bengal State
Prisoners Regulation, 1818, Madras Regulation II of 1819, or Bombay Regulation XXV of
1827 or the State Prisoners Act 1850 of the State Prisoners Act 1858.
According to Section 45 of the Specific Relief Act, the High Court may make an order
requiring any specific act to be done or forborne, within the local limits of its ordinary civil
jurisdiction, by any person holding a public office whether of a permanent or a temporary
nature, or by any cooperation or inferior Court of Judicature: provided-
(a) that an application for such order be made by some person whose property,
franchise or personal right would be injured by the forbearing or doing (as the case may be) of
the said specific act;
(b) that such doing or forbearing is, under any law for the time being in force, clearly
incumbent on such person or Court in his or its public character, or on such corporation in its
corporate character;
(c) that in the opinion of the High Court such doing or forbearing is consonant to right
and justice;
(d) that the applicant has no other specific and adequate legal remedy; and
(e) that the remedy given by the order applied for will be complete.
Exemptions from such power, nothing in this section shall be deemed to authorize the
High Court-
(a) to make any other binding on the President of the Union;
(b) to make any order on any other servant of the Government, as such, merely to
enforce the satisfaction of a claim upon the Government; or
(c) to make any order which is otherwise expressly excluded by any law for the time
being in force.
According to the above-mentioned provisions of the Code of Criminal Procedure and
the Specific Relief Act, the High Court may issue the writs. The Supreme Court of the Union
has jurisdiction throughout the whole of the Union and the decision of it was binding on all
Court. It was the court of final appeal from all courts within the Union and granting the writ.
Dagon University Research Journal 2020, Vol. 11 101

The Practice of Writs in Myanmar after 2011

According to Section 296 (a) of the Constitution of the Republic of the Union of
Myanmar 2008, the Supreme Court of the Union has the power to issue five kinds of writs.
These writs are:

(1) Habeas corpus

The writ of habeas corpus is issued in written form to call a person in detention and to
scrutinize to ensure that the imprisonment or detention of party by any Court within the Union
or by any authorized organization is legal or not.2
The following is the writs of habeas corpus case the Supreme Court of the Union has
heard.
In the case of Daw Mar Khon Vs. Battalion Commander U Aung Zaw Oo (or) the
Presiding Officer, Column Commander (Kha La Ya- 37) Myit Kyi Nar Township.3
The applicant applied to the Supreme Court of the Union to issue an order of habeas
corpus as her husband, while he was sleeping at 11:00 pm on 5th Jan 2012, was arrested by
Kha La Ya-37, Battalion, Tar Law Gyi Camp and was detained at Upper monastery of Tar
Law Gyi.
The respondent also applied that he arrested her husband but transferred him to the
Board of Investigation (BI), Myit Kyi Nar, brought him an action under Section 17 (1) of the
Unfair Society Act and then, took him a remand from Myit Kyi Nar Township Court.
The Court had to issue an order of writ of habeas corpus to take the arrested person
before the Court if he was arrested without sufficient reasons. In this case, it appeared the
applicant's husband was detained by an order of remand of the MyitKyiNar Township Court
under Section 167 of the Cr. PC (Procedure when investigation cannot be completed in
twenty-four hours). There was no need to issue a writ of habeas corpus. The application was
dismissed.
The Supreme Court of the Union has not issued the writ of habeas corpus in a single
case from 2011 to 2019.

(2) Mandamus
The writ of mandamus is issued in written form to compel government personnel,
organizations, or departments to legally perform their duties.4
In the following case, the Supreme Court of the Union issued and decided writs of
mandamus.
A famous case in Myanmar relating to a writ of mandamus is Professor Dr. Daw Kyin
Htay vs. Ministry of Education.5 Dr. Daw Kyin Htay, Professor and Head of the Department of
Economic at Yangon University of Distance Education, was received an order of a
compulsory pension from the Ministry of Education, even though that kind of punishment is
not included in Government Servant Law. Although the application was in line with Paragraph

2
Section 2 (c) Law relating to Writ Application 2014.
3
No.1 (Criminal Miscellaneous application), 2012
4
Section 2 (d) of Law relating to Writ Application 2014.
5
No. 290 (Civil Miscellaneous Application) 2013.
102 Dagon University Research Journal 2020, Vol. 11

67(b), which was adopted through personal regulation, and Section 55 of Government Servant
Law against the order, nothing was performed into action. The mandamus is totally out of line
with the constitution and other existing judicial procedures for writ jurisdiction are issued
Section 16 (a) (2) of the Union Judiciary Law, 2010. Actions against malfeasances of civil
service personnel shall be exercised in accord with Sections 2906, 347 (equal right before the
law) and 349 (equal opportunity in public employment) of the Constitution, which was not
true in this case.
The earlier action by the Ministry of Education caused a negative impact on the
applicant since it was without any consideration for her capability of taking responsibility
before the age of retirement (which is 60 years of age in Myanmar). This means that she lost
one of the legally prescribed rights as a citizen. Hence, it was necessary to issue a writ of
mandamus to protect her from the order of forced retirement by the Ministry of Education.
The application was accepted and, at the same time, the order notice forcing Dr. Daw
Kyin Htay into retirement was nullified.
The applicant was successful in this case, and it was the first major case in which the
Supreme Court declared a decision of a government minister to be beyond the authority.
From the above-mentioned case, it is observed that the Writ of Mandamus is the only
effective way to compel government personnel or agency to perform or not perform a specific
public duty and to redress such performances afterwards.

(3) Prohibition
The writ of Prohibition is issued in written form to forbid the performance of any
Court or quasi-judicial function exceeding its jurisdiction or ultra vires act of the justice.7
The following is an example of the case in which the Supreme of the Union decides
writs of prohibition.
U Myint Than and 5 Vs. the Republic of the Union of Myanmar and 2.8
In this case, an application was filed for a writ of prohibition. The High Court of
Mandalay Region, as the Revision Court has the power to act as if the original court under
Section 522 (3) of Criminal Procedure Code.
While applying for the issue of writs to the Supreme Court of the Union, the Court
cannot interfere in a case which is within the jurisdiction of a subordinate Court. If the
applicants were not satisfied with the order of the High Court of Mandalay Region, they could
apply for a revision to the Supreme Court of the Union. After the Supreme Court heard the
case, since there was no reason to make a preliminary decision to the defendant to show
causes, the Supreme Court rejected the application for the writ of prohibition.

(4) Quo Warranto

Quo Warranto is a writ issued in written form on the action of any government
department or authorized organization after scrutinizing and hearing such performance is

6
Matters relating to appointment, promotion, retirement, enforcement of rules and regulations and taking action
on the Civil Services Personnel shall be exercised in accord with Law.
7
Section 2(e) of Law relating to Writ Application, 2014.
8
No.1 (Criminal Miscellaneous Application), 2011.
Dagon University Research Journal 2020, Vol. 11 103

whether legally under the Law, Rule, Regulation, Procedure, Order, Notification, Instruction
issued on any party or parties or not.9
The Supreme Court of the Union issued the writ of Quo Warranto in the following
case.
Daw Tin Tin Win (a) Daw Tin Tin Aye and 2Vs. Civil Planning and Land
Administration Department, Yangon City Municipal Committee and 3.10
In this case, Civil Planning and Land Administration Department of the Yangon City
Municipal Committee permitted to change the legal ownership of plot no. 87/3, survey section
36/E, Kamayut Township (Location: No. 97, Thanlwin Street, Kamayut Township) from
original owner U Lu Phay Win to U Htoo Aung Nyunt and U Phyo Khaing Oo, respondent
numbers 2 and 3. The permission was not in accordance with rules, regulations, and
procedures of that department. Thus, it is rightful for the Court to interfere and cancel the
action by issuing a writ of quo warranto.

(5) Certiorari
The Writ of Certiorari is issued in written form to urge a court or any quasi-judicial
function to perform in conformity with the law in making a decision, particularly where such a
decision is an illegal act.11
The Supreme Court of the Union issues and decides the writ of certiorari in the
following case:
Daw Win Win Khaing & her deputy U Kyaw Za Ya Vs. 1. Arbitration Council, the
Ministry of Social Welfare and Employment, Naypyitaw, 2. Daw Mar Mar Khin,
representative of 51 workers.12
Daw Win Win Khaing, owner of Gallant Ocean Cooling Factory, paid each of 51
workers including Daw Mar Mar Khin, only 5000 Kyats as a bonus for Thingyan (the water
festival in April), whereas she paid other workers about 100000 Kyats per head and day-shift
workers 60000 Kyats per head.
The 51 workers including Daw Mar Mar Khin claimed everyone should receive equal
amount of bonus. Daw Mar Mar Khin applied to Argument Number 19/ 2014 at the
Arbitration Council. Daw Win Win Khaing made the application for a writ of certiorari on the
decision by the Arbitration Council that 60000 Kyats per head should be paid to the 51
workers.
Thingyan bonus does not pertain to mandatory financial rights of workers, such as
salaries. Depending on different levels of performance at workplace, more or less is defined by
the employer. Giving bonuses to employees is just goodwill of the owner; all the workers do
not have equal rights to a certain amount of bonus. Accordingly, the general application of
such a lawsuit was officially permitted and a decision was made in terms of Conflict Number
19/ 2014 of the Arbitration Bloc and the decision of the Arbitration Council was withdrawn by
the writ. The Supreme Court of the Union issued a writ of certiorari.

9
Section 2 (f) of Law relating to Writ Application, 2014.
10
No. 118 (Civil Miscellaneous Application) 2017.
11
Section 2 (g) of Law relating to Writ Application, 2014.
12
No. 224 (Civil Miscellaneous Application) 2014.
104 Dagon University Research Journal 2020, Vol. 11

Conclusion
A writ is an order or process issued by a court or judicial officer asking any person to
perform or refrain from performing any act. In all cases, the writs contain directions as to what
is required to be done. Every writ has its nature and process. Each writ has advantages on its
scope. A writ of habeas corpus is a judicial mandate sent to a prison official ordering that an
inmate is brought to the Court so it can be redetermined whether or not that person is
imprisoned lawfully and whether or not he should be released from custody. A writ of
mandamus is an order from a court to an inferior government official ordering the government
official to properly fulfill their official duties or to correct an abuse of discretion. Writ of
prohibition lies to prevent body acting without jurisdiction or contrary to the rules of natural
justice. Quo warranto is requiring the person to whom it is directed to show what authority
they have for exercising some right or power they claim to hold. Certiorari has two kinds of
remedy in essence. The first part is an order removing the official record of the impugned
decision-maker into the superior court issuing the certiorari order. The second part is an order
quashing the impugned decision.
In Myanmar, the power to issue writs is vested in the Supreme Court by the 1947 and
2008 Constitutions. From 1948 to 1962 the Supreme Court issued a total of 239 writs. These
writs included 42 writs of habeas corpus, 15 writs of mandamus, 6 writs of prohibition, 2 writs
of quo warranto, 155 writs of certiorari, 12 writs of certiorari and prohibition and 7 writs of
certiorari and mandamus.
A total of 264 writs were issued by the Supreme Court of the Union from 2011 to
2019. These writs include 49 writs of mandamus, 1 writ of prohibition, 18 writs of quo
warranto and 196 writs of certiorari. There has not been a single writ of habeas corpus issued
from 2011 to 2019. It may be seen that a writ of certiorari is the most practicable among five
kinds of writs.

Acknowledgements
I would like to express my deepest gratitude to Professor Dr Nu Nu Yi, Pro-Rector of Dagon University
for the encouragement to conduct presentation of this research. I would also like to thank Professor Dr Nay Thwe
Kyi, Pro-Rector, Dagon University for her permission on working for this research. Additionally, I am very
grateful to Professor Dr Nilar Soe and my colleagues at Law Department, Dagon University for assisting and
allowing me to complete this research paper.

References

Laws
[1] Constitution of the Republic of the Union of Myanmar, 2008
[2] Code of Criminal Procedure, 1898
[3] Law relating to Writ Application, 2014
[4] Specific Relief Act, 1877
[5] Union Judiciary Law, 2010

List of Case
[1] Daw Mar Khon Vs. Battalion Commander U Aung Zaw Oo (or) the Presiding Office
Column Commander (Kha La Ya- 37), Myit Kyi Nar Township, Criminal Miscellaneous No. 1, The
Supreme Court of Union, (2012)2.
Dagon University Research Journal 2020, Vol. 11 105

[2] Daw Tin Tin Win (a) Daw Tin Tin Aye and 2 Vs. Civil Planning and Land Administration Department,
Yangon City Municipal Committee and 3, Civil Miscellaneous No. 118, The The Supreme Court of
Union, (2017)
[3] Daw Win Win Khaing & her deputy U Kyaw Za Ya Vs. 1. Arbitration Council, the Ministry of Social
Welfare and Employment, Naypyitaw, 2. Daw Mar Mar Khin, representative of 51 workers, Civil
Miscellaneous No. 224, The Supreme Court of Union, (2014)
[4] Dr. Daw Kyin Htay Vs. Ministry of Education, Civil Miscellaneous No. 290, The Supreme Court of Union,
(2013)
[5] U Myint Than and 5 Vs. the Republic of the Union of Myanmar and 2 Criminal Miscellaneous No. 1, The
Supreme Court of Union, (2011)