Myanmar’s Opening Up Hasn’t Loosened Graft in Courts

http://www.nytimes.com/2014/10/25/world/asia/myanmars-opening-up-hasnt-loosened-graft-in-courts.html

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YANGON, Myanmar — Lawyers in Myanmar are well accustomed to paying out a stream of bribes to clerks and judges as part of a widely acknowledged culture of graft. But when word spread last year about a judge’s wife demanding $150,000 for a favorable decision, even the most jaded lawyers took notice.

The judge’s wife “just showed up at my house” and requested the money, said Daw Ja Bhu, a Yangon resident embroiled in a protracted property dispute.

“The wife said, ‘As for the case, leave it to me,’ ” said Ms. Ja Bhu, who handed over the money but was reimbursed after the case became public.

By the government’s own admission, corruption remains deeply rooted in Myanmar. Over the past three years, a judicial affairs committee in Myanmar’s Parliament has received more than 10,000 complaints, most of them related to alleged corruption.

In a number of areas, Myanmar has undergone a radical transformation since the dismantling of five decades of dictatorship. Debates in Parliament tackle thorny issues; the media, muzzled for five decades, is uncensored; and the fear of being bullied, beaten or detained by the police and soldiers is lifting. But the state of the justice system leaves many lawyers pessimistic about the country’s vaunted reforms.

“The only way to save this system is to destroy it and build it back up again,” said Htoo Htoo Aung, a 29-year-old lawyer who said money had changed hands in nearly all of the cases she had worked on.

At a time when Myanmar is aggressively courting outside investment, the weak rule of law is one of many impediments for foreign companies that have been less numerous than the government had hoped.

“Foreign companies are afraid of the courts,” said Daniel Aguirre, an adviser in Myanmar for the International Commission of Jurists, a legal activist group. “To get economic activity going, you need to have a judicial system that functions.”

Very few cases of graft in the courts have been prosecuted. Even in Ms. Ja Bhu’s case, the judge, U Bo Lay, was forced to retire last year, but no charges were brought against him or his wife, lawyers said. Staff at the court in Yangon where the judge served said they were not in contact with the judge and could not provide a number to reach him.

The attorney general’s office did not reply to requests for comment on the case or other matters pertaining to the judicial system.

Lawyers say bribes are required at nearly every step of the judicial process: to clerks, record-keepers, stenographers and judges. The payments go by a variety of euphemisms: tea money for a court stenographer, unlocking fees for court records and tributes for judges.

Lawyers say one major reason for corruption is the low pay that judges receive, as little as $150 a month for local judges.

“They cannot survive on that, so they get outside money,” said Robert Sann Aung, one of the country’s most senior lawyers. “Justice goes to the highest bidder.”

But lawyers disagree on the overall cost to society of the pervasive judicial graft. Some say justice can be bought and sold.

Others play it down as an expensive form of tipping that greases the wheels of the system.

U Min Sein, a Yangon lawyer who has been practicing since the 1970s, said tributes were offered to judges by the winning party as a sort of gratuity.

“Clients will go to the judge and say thank you,” Mr. Min Sein said. “This is the Burmese way.”

Khin Wutyee Oo, a young lawyer with an office in downtown Yangon, says cases where money is not exchanged face delays.

“Even if it is quite clear that a client will win a case, you still have to pay,” she said. A client of hers who refused to pay the judge a bribe in a property dispute lost the case but then won on appeal, she said.

The legal system, based largely on British common law, was successively degraded during five decades of military rule.

It was all but destroyed in the 1970s by the dictator Ne Win, who introduced a system of “people’s judges,” military officers and others who had no legal training.

“They knew nothing about law,” said Mr. Sann Aung, who was jailed six times for political offenses during military rule. “They just knew about money.”

The legal compendium of rulings by the country’s highest court, normally an important reference for lawyers, ran more than 1,000 pages long in 1963. A decade later, during the era of the people’s judges, it was reduced to a pamphlet of just 43 pages.

When a junta took over in 1988, the generals handed down “envelope rulings” — the military leadership decided the outcome of cases, especially political ones, and delivered decisions to the judges, who read them out in court.

Under Myanmar’s current system, which is nominally civilian but still heavily influenced by the military elites, the “authorities have significantly decreased their obstruction” in the justice system, according to a report published in December by the International Commission of Jurists. But the report concluded that the authorities continued to exert “improper influence” and that corruption was so endemic it was taken for granted.

The lack of resources in Myanmar’s judicial system is evident at the High Court, a decaying colonial building with overgrown shrubbery and lichen-covered walls in the heart of Yangon. Courtrooms are lighted by fluorescent tubes dangling from the ceiling and powered by a drooping tangle of wires. Clerks use manual typewriters that sit on solid timber desks that look as old as the building itself.

Ms. Khin Wutyee Oo, the lawyer, says money is exchanged with subtlety in the courtroom. A bribe for a clerk is often placed inside a book on his desk, for example. Money is rarely discussed with the judges themselves; clerks serve as intermediaries.

Ms. Khin Wutyee Oo says the level of corruption has not changed as Myanmar has become more free. “The main difference is that people are talking about it more,” she said.

Yet talking can be perilous, lawyers say. Those who attempt to report corruption risk being charged with corruption themselves.

One woman in Yangon involved in a divorce dispute is facing three years in prison after she wrote an open letter to President Thein Sein and other senior officials requesting that action be taken against a judge for demanding money for a favorable decision.

The woman, Daw Cho Cho Nwe, said the judge’s clerk told her, “Your case will be fine just as long as you pay some money.” She paid the clerk $500, but when the payment became public among staff in the courthouse, Ms. Cho Cho Nwe said the money was returned to her and the decision went against her.

A separate judge charged Ms. Cho Cho Nwe and the clerk with graft. The judge was not charged.

Ms. Cho Cho Nwe is fighting the case.

“They are taking money — they are corrupt,” she said. “But they don’t want it to be publicized. They are using their power to suppress it.”