Access to justice in general would be improved significantly if a complete administrative law system were to be put in place. However, there are some ‘doable’ actions that could be taken to help advance administrative justice now. It is important is to ensure that, as a first priority, decision-making and review processes in public administration are standardised. The introduction of common standard operating procedures (SOPs) would assist and new laws and should require that.
This can happen through the Civil Service’s reforms already underway.
In Burma’s transition to democracy, with the government working to implement the rule of just law, all understand the importance for citizens to have access to administrative justice. That requires public administration decision-making to be just and fair and according to law, with clear rules and procedures in place to guide the processes. It follows that citizens should have a legal right for decisions made about them to be open to review and correction.
Article 224 (2008 Constitution) arguably goes some way towards this:
Ministries of the Union Government shall, in carrying out the functions of their subordinate governmental departments and organisations, manage, guide, supervise and inspect in accord with the provisions of the Constitution and the existing laws.
Further, Articles 377-378 provide for the writs of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari to be granted by the Supreme Court and there is an accompanying Law on the Application of Writs 2014. These are important parts of access to justice but are not readily accessible and the remedies are not so suitable for everyday administrative decisions.
However, the principle of review and correction is alive in Burmese legal culture both formally and informally, and this culture provides the foundation for advancing administrative justice. Laws do provide for review where the government and the administration are authorised to make decisions. The Myanmar Investment Law, Land Law and Telecommunications Law are just a few examples. But these examples alert us to problems. The review provisions are neither procedurally clear nor do they lead to common standard operating procedures (SOPs) across all administrative reviews, nor do they all provide for external review by an administrative body or court. Some even make the review process final and binding. The same principle of review and correction is also found at Departmental, Township, Village and Household levels, but in application suffers the same lack of procedural clarity.
Anecdotal evidence seems to suggest that when an internal review is conducted it is neither approached systematically with clear standard operating procedures (SOPs) nor transparently and people are not always provided with an adequate opportunity to tell their story, nor are they given the reasons for the original or reviewed decision, verbally or in writing. This result in a flurry of individual complaints to Union, State and Region level bodies, Parliamentary Commissions and Committees. Self-Administered Areas also receive complaints. The fact that people feel confident to complain is to be welcomed but even though those bodies respond, they cannot make legally binding decisions or necessarily correct them.
Thus, while there is a system of administrative review in place, it cannot be said that there is an adequate system of access to administrative justice. Such a system would provide administrative decision-making that is rules-based, with standard operating procedures (SOPs) and predictable. It is unrealistic to expect this all to be in place immediately but it is realistic to work actively towards such a goal.
I am sure the Government is aware of this and could over time consider including the adoption of such a guiding administrative law framework in its suite of public policy deliberations. If such a direction were endorsed, the Ministerial policy unit could then draft a ‘bills brief’ for Cabinet to consider. If approved, this brief would go to the central legislative drafting unit, and finally be forwarded to the parliament for consideration.
The Parliament would then take the bill through the respective Committee study-inquiry process, then to the subject matter committee/s, and then finally to the Bills Committee who scrutinise for correct legal form, standards and principles. The Committees then present their reports to the Plenary.
Parliament could further consider:
- Ensure that the Bills’ drafting procedure accords with the rights provided to citizens in the 2008 Constitution
- Include with the principles and standards that guide bill drafting a standard for administrative justice that includes common standard operating procedures (SOPs).
Those actions would improve administrative decision-making, the review process and ensure the inclusion of the principles of administrative justice. They would call into question bills that make a Ministerial or Departmental review committee the final arbiter, as there is a legal view that this is neither legal nor constitutional.
To create a complete administrative law system will take time but it is worth serious consideration as it will achieve the following outcomes:
- Set guiding principles and standard operating procedures (SOPs) for each government department to implement in their decision-making
- Set standard operating procedures for internal review of decisions
- Establish an Administrative Appeals Tribunal that people can access to have administrative decisions about them independently reviewed
- Advance the rule of just law
- Strengthens the people’s faith in law
- Help to implement the principles of peace, justice and strong institutions, i.e. Sustainable Development Goal 16 (SDG 16)
In federal systems of government, Administrative Tribunals can be established at all levels of government. That ensures that with whichever level of government the citizens are interacting, they would have access to just decision-making and just review of those decisions.
In Burma, the General Administration Department (GAD) undertakes the majority of administration at State and Region levels. The General Secretaries report to the Ministry of Home Affairs, whose Minister is an Armed Forces Officer, chosen by the Commander-in-Chief. The GAD also operates within the Union structure of government, so a binary function, as stated clearly on the GAD website: Tasks assigned by the President Office and Union Government.
GAD’s stated objectives begin with the rule of law and one of their four articulated pillars is ‘Ensuring Impartial Administrative Mechanism’. This all lends itself to the further development of a complete system of administrative justice and law to apply across the entire country’s public administration.
Governments wield broad power over citizens through their administrative decision-making powers. That power needs to be tempered by ‘checks and balances’.
A complete system of administrative law will do just that.
Janelle Saffin is a long-term friend of Burma, a practising lawyer, former Australian MP (State & Federal), former member of State & Federal Administrative Tribunals including as Judicial Member