Melissa Crouch/Mizzima

 

The military regime in Myanmar has begun to use martial law orders, representing a serious escalation in the response by the military.

 

One aspect of martial law or military administration is that the Tatmadaw presumes this allows it to establish military tribunals to try civilians.

 

Military tribunals established during martial law are distinct from courts martial. The Constitution only refers to ‘courts martial’ (ss 293(b), 319), which is courts to try military officers. Distinct from courts martial, the military uses ‘military tribunals’ to try civilians.

 

[Note: if you are reading the English version of today’s military controlled newspapers 16.3.2021, the order incorrectly translates military tribunals as courts martial].

 

It is important to distinguish between courts martial and military tribunals. Courts martial have the authority to try military personnel. Courts martial are established in the Constitution and these courts do not try civilians.

 

In contrast, the term military tribunal in Myanmar refers to a temporary tribunal set up by the Tatmadaw to try civilians during a period of martial law or military administration.

 

This has been a common strategy of the military. It happened in 1948 and again in 1952, the latter in relation to Shan State.

 

In 1962, a nationwide martial law order introduced special criminal courts as part of the civilian judicial system. These special criminal courts were initially set up to try accused for offences under specific laws, including a range of offences under the Penal Code (122 (1), 123 (1), Article 124-A, 188, 302, 364, 365, 366, 366-A, 372, 373, 376, 392, 394, 395, 396 and 436), as well as offences under the Emergency Provisions Act 1950, the Arms Act, the Opium Act, the Unlawful Associations Act, the Public Property Protection Act 1947, the Essential Supplies and Services Act 1947 and the Public Utilities Protection Act 1947. This scope was so broad that most acts of opposition to General Ne Win’s regime could fall within it. Even so, the jurisdiction of these courts was later expanded to hear any offence.

 

These special courts had wide powers to issue a punishment of the death penalty, life imprisonment or three years jail for any of these offences. There was still some semblance of checks and balances, with any decision of the death penalty needing to be approved by the (civilian) Supreme Court. The Supreme Court could also hear appeals in cases where the death penalty had been handed down. In 1974, when a new constitution was introduced, the special criminal courts were abolished.

 

In 1988, after the military takeover, the military decided it did not need courts and closed the courts retrospectively from 1 June 1988 to 31 March 1989.

 

When martial law was issued in 1989, regional commanders were empowered to try civilians in the existing courts or in military tribunals. The powers of the military tribunals had similarities to the special criminal courts of 1962, except the tribunal was not part of the civilian court system. Military tribunals are entirely under the control of the Tatmadaw. This meant, for example, that an application for revision of a sentence of the death penalty went to the regional commander, rather than a civilian judiciary.

 

Amnesty International reported that in 1989, 24 people were sentenced to death by military courts. There were also concerns cases were tried in secret very quickly and without a lawyer present.

 

In 2021, the military has adopted the same strategy of using military tribunals to silence protestors. The Yangon Commander has the choice to try civilians in military tribunals. An accused person is at risk of being tried by a military tribunal that can issue a punishment of the death penalty, life imprisonment or three years jail.

 

The military tribunals can hear many of the same offences as in 1962, with the exception of laws that no longer exist, have been replaced or offences in the penal code that are not relevant to the present.

 

The list of offences the military tribunals can hear includes high treason (s122); offences against the government or Tatmadaw or its personnel (s124A, s124C, s124D); offences under section 505 and 505A; and a range of criminal offences such as murder and robbery in the Penal Code. It also includes a range of offences relating to specific sectors or issues such as the media and electronic communications, ward/village tract administration, terrorism, unlawful associations, corruption, drugs and the protection of property. It is not surprise that this list includes the new offences introduced into the Penal Code after the 2021 coup.

 

Crimes that would not otherwise attract the death penalty or life imprisonment now suddenly do if an accused is tried by a military tribunal.

 

Military tribunals are distinct from the courts martial for military officers. The courts martial have full jurisdiction over Tatmadaw personnel, not civilians. The courts martial are established under the Defence Services Act and Regulations, not a martial law order.

 

There have been several examples of the use of courts martial since 2011. For example, in January 2018, it was reported that courts martial found six soldiers guilty of killing three people in Kachin State and sentenced them to ten years in jail. In February 2018, courts martial tried seven soldiers for killing 10 Rohingya in northern Rakhine State.

 

Separate from courts martial, the military tribunals that may now be established are specifically to try civilians who are alleged to have committed offences within the areas under martial law.

 

The Tatmadaw has raised the stakes by allowing for military tribunals to try any civilian allegedly guilty of an offence and increased the punishment for those found guilty. This is another sign of the deterioration of the situation in Myanmar.

 

Note: On 17 March (the day after this post), the military issued a correction in the Global New Light of Myanmar to confirm that the translation should have read ‘military tribunals’ (not courts martial).

Melissa Crouch is Professor and Associate Dean Research at the University of New South Wales, Faculty of Law and Justice.