Landmark Indian and Burmese Supreme Court decisions given exactly fifty-seven years apart

Law 72As I write, international news and social media are reporting with enthusiasm a landmark ruling given by the Supreme Court of India. On 6 September 2018, a five Judge bench of the Supreme Court of India, in a decision given by Chief Justice Dipak Misra and Justice A.M. Khanwilkar — in which the three other Justices joined—delivered a unanimous decision which held that parts of Section 377 of the Penal Code of India which criminalizes ‘carnal intercourse against the order of nature’ (as written in the Section) between (to be specific) consenting adult males and males as well as males and females in private is unconstitutional and is therefore invalidated.
In the modern legal history of India or at least in the history of the Indian Supreme Court, this is a landmark if not (as the ruling’s admirers enthused) ‘historic’ decision. There would naturally be admirers and detractors, indeed critiques, perhaps even condemnations of the decision. (In the web page of The Independent newspaper from the United Kingdom at least at the time the writer read it, it was wrongly mentioned that ‘carnal intercourse’ was prohibited under ‘Section 377 of the Indian Constitution’. In fact the Section was not from the Constitution of India but from the Indian Penal Code drafted and enacted initially in the late 1850s – around 160 years ago by the then British colonial administrators. With modifications, revisions, deletions and additions throughout the ensuing decades, many parts of the Indian Penal Code is still applied in former British colonies in Asia including—but not limited to—what is now India, Pakistan, Myanmar, Singapore and Malaysia).
The name of the Indian Supreme Court case is Navtej Singh Johar and others (petitioners) v The Secretary Ministry of Law and Justice, Union of India (respondents). The unanimous ruling (from the web) is 166 pages long (roughly around 43,000 words) and is written in English.
This article is not to comment, ‘celebrate’ or even critique this landmark judgment of the Supreme Court of India which attracts a lot of national (within India) and international attention.
It is partly to briefly narrate about a decision giving by the late Supreme Court of the Union of Burma exactly 57 years ago to the day before the Navtej Singh Johar case was delivered by the Supreme Court of India. In the year 1961 when fax machines – not to say the world wide web from which the Indian Supreme Court decision can be ‘downloaded’ perhaps even contemporaneously as it was being announced —was in the (then) quite distant future. Regardless of its impact, news of any decision of the nature and significance of the Navtej Singh Johar case could not have ‘spread’ that fast and that extensively. Though in the context of pre-1962 (only) Burmese jurisprudence the particular Burmese Supreme Court decision decided on the same date exactly 57 years earlier was significant it made much less impact nationally and internationally. It definitely was and is much less well-known compared to the historic Indian Supreme Court decision.
On 6 September 1961, 57 years to the day that I write, the late Burmese Supreme Court issued a ruling authored (mainly) by the late then Chief Justice of the Union U Myint Thein (22 February 1900-3 October 1994) in the case of T.N. Ahuja v Commissioner of Income Tax as reported in the 1961 Burma Law Reports (BLR) Supreme Court (SC) at page 185.
The judgment written in English is indeed the last case dealt by then highest court of the Union and dealing with the now long-defunct 1947 Constitution. Apart from the late Chief Justice U Myint Thein the bench consists of the late Justice U Bo Gyi (1898- May 1982) and late Justice U Aung Tha Gyaw.
The case in part deals with Section 90 of the 1947 Constitution where it is required ‘that any changes in the rules and regulations of an Act promulgated by Parliament made by delegated legislation or other means must be laid before the next session of Parliament’ and approved by it. The changes to the rules of Income Tax Act made in 1954 was not tabled before the next session of Parliament in 1954 and they were tabled and approved by the then Burmese Parliament only in 1958. (Delegated Legislation is legislation that is not made by the Parliament itself but is delegated to other sub-legislative and executive bodies to make ‘subsidiary legislation’ that has to be eventually approved by the Parliament.)
The late Burmese Supreme Court rejected the contention of counsel for appellants T N Ahuja that since the changes in the rules of the Income Tax Act were not tabled in the immediate next session of Parliament, the rules are null and void. The late Supreme Court held that ‘to lay the rules before Parliament is not a condition precedent for them to have the force of law and in point of fact they became effective on promulgation’.
Less than six months after the judgment was given, the Burmese Army led by General Ne Win (6 July 1910?- 5 December 2002) took over State power in a military coup. One of the first things the coup plotters did was to arrest Chief Justice U Myint Thein – at the same time as then President the late Mahn Win Maung and the Prime Minister the late U Nu and many other important but soon to be former leaders—in the early morning hours of 2 March 1962. I have read in Burmese language materials that Chief Justice U Myint Thein asked for a ‘warrant’ when he was arrested and the arresting officer had to contact his superior. The superior told the elderly Chief Justice that it was a military coup and there was no need for an ‘arrest warrant’ to arrest even a personage who was second (after the President) in the then State hierarchy.
U Myint Thein was put in detention for nearly six years and was released only on 27 February 1968. Associate Justice of the Supreme Court at that time of the military coup the late U Bo Gyi was later appointed as the new ‘Chief Judge’ (the nomenclature of the apex Court in English was changed from ‘Supreme Court’ to Chief Court and Chief Justice to ‘Chief Judge’ in April 1962 only to revert back to the previous terms in the early 1970s) at the new Chief Court of Burma, effective 1 April 1962, and served in that post until early June 1965.
On 30 March 1962, General Ne Win, Chairman of the Revolutionary Council, abolished, by decree, the Supreme Court and High Court, the top Burmese apex courts, ‘effective from noon 31 March 1962’. (Hence the term ‘late Supreme Court’ as referred above.)
From the very first decree announcing the formation of the Revolutionary Council, no decrees issued by the Revolutionary Council would require any ‘tabling’ of these decrees ‘having the force of law’ to be ‘tabled before the Parliament’ and that includes a decree issued within days of the 1962 military coup which abolished the then Parliament! SEE Page- S-7
Hence the rule of law and constitutionalism which had existed prior to 1962 ceased to exist if not within days of the coup then in the ensuing years. None dare challenge the validity of the numerous laws (or rather military decrees) issued by then Revolutionary Council in its apex courts either during or indeed after the ‘transfer of power’ from the Revolutionary Council to the Burma Socialist Programme Party on 2 March 1974 — 12 years to the day after the 1962 military coup. (Both the Chairman of the Revolutionary Council and Chairman of the Burma Socialist Programme Party was U Ne Win.)
Indeed, when the 1974 one-party Constitution was adopted, one of its key provisions stated in effect that all ‘laws, decrees, by-laws made by the Revolutionary Council devolves upon the Socialist Republic of the Union of Burma and shall be considered to have been taken in accordance with this [i.e. now defunct 1974] Constitution’.
After the adoption of the 2008 Constitution decrees and laws made by the three military Councils (Revolutionary Council, 2 March 1962-2 March 1974), State Law and Order Restoration Council (18 September 1988-15 November 1997), State Peace and Development Council (15 November 1997-30 March 2011) remain in force until they are repealed. None of these laws made during the military Councils can be said to have been enacted by an ‘elected’ Legislature (even by a Legislature where only candidates from one political party can become legislative members as in the March 1974 to September 1988 period). Indeed, none has been challenged as amendments to the Income Tax Act was in the T N Ahuja case of 1961. Political (and therefore judicial) realities on the ground (absolutely) militate against even seriously contemplating such challenges.
Having stated that under the current 2008 Constitution, there is now a new institution of the Union Constitutional Tribunal where, among others, disputes between and among other States and Divisions concerning constitutional issues can be brought to the Constitutional Tribunal for its ‘opinion, resolution or decision’. (Incidentally, the English translation of the ‘Union Constitutional Tribunal’ should preferably be ‘State Constitutional Tribunal’ since in the Myanmar version the term used is Naing Ngan Daw ‘State’ and not Pyidaung Su ‘Union’ Constitutional Tribunal.) I understand that in contrast to the Union Supreme Court which, I surmise, deals with, decides or ‘disposes’ of at least a few hundred cases each year, the Constitutional Tribunal has decided no more than (perhaps) thirty cases that reached it during the more than 7 years of its existence.
Also, the law-making process since 2011 when former Prime Minister U Thein Sein became the first president of the Republic of the Union of Myanmar has been more transparent and (shall we say) ‘less undemocratic’. (The only person before U Thein Sein who held consecutively both the posts of Prime Minister and President was General — and since 20 April 1972 — U Ne Win who was Prime Minister, among others, from March 1962 to March 1974, before relinquishing that post to become the first President of the Socialist Republic of the Union of Burma and ‘served’ in that post from March 1974 to November 1981.)
Since U Thein Sein became President in March 2011, draft laws are published in newspapers for comments by the public and at times the draft laws are quite thoroughly debated in the Pyithu Hluttaw and Amyotha Hluttaw and in the joint sessions of these two Union Legislatures Pyidaungsu Hluttaw. (Incidentally, this writer prefers the transliterated terms above which the New Light of Myanmar, predecessor to the Global New Light of Myanmar used till about 2013, than the term currently used, such as ‘Union Parliament’). Hence we are not entirely ‘ensnared’ in the deadwood of the (shall I say)—generally-unhappy past.
The late Burmese Chief Justice U Myint Thein’s ruling in T N Ahuja did not, does not and would not even internally, far less externally, make such an impact like the ruling given by current Chief Justice of India Dipak Misra on 6 September 2018 in the case of Navtej Singh Johar decided exactly 57 years to the day after the T N Ahuja decision. Still, I give my tribute to the late Chief Justice U Myint Thein and his brethren (or brother) judges and the then Burmese Supreme Court for their landmark decisions and rulings made between the years 1948 to 1962 which had enriched Burmese jurisprudence.

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