The problem in Burma today is not that judges are struggling to be independent against a heavy-handed regime, but rather that judges are part and parcel of decades of a military governing system. Judges routinely impose unjustified sentences in political cases, allowing them to keep their jobs and access to the benefits of a corrupt system.
Nor will the country's new constitution bring about the necessary changes. Despite language asserting judicial independence, the president retains a dominant role over the parliament in appointing and removing judges. And there are no specific constitutional mechanisms to prevent political interference.
It's not clear how an independent and rights-respecting judiciary can best be developed in Burma. Without a clear and unwavering commitment from the government and other power-holders in Burma not to interfere in judicial proceedings, ploughing foreign aid or technical assistance into the existing system will not bring change. The government and the military will need to stop telling judges what to do and demonstrate they will not take reprisals against those who rule against them, such as by ordering political prisoners released or holding corrupt officials accountable.
Even in the best-case scenario, reform will take time. Real inroads will need to be made against corruption in the judicial system. Legal education needs a massive overhaul. Standards of professionalism will have to be created. A culture of judicial independence will have to be established. And even without constitutional amendments to ensure the impartial selection of judges, the government needs to accept more input from civil society, opposition parties and ethnic minority groups on candidates for judicial appointment.
Legal reform means establishing confidence in the courts. Political prisoners amnestied on Tuesday should feel secure that they won't be rearrested on Wednesday. Demonstrators should know that abiding by the new law on peaceful assembly will mean that even if they are hauled in by the police, a judge will throw out the case. And ethnic minorities who suffer abuses by soldiers in conflict areas need be able to obtain justice and redress in the courts. The hopeful changes now occurring in Burma will only become genuine reforms when there is institutional protection provided by an independent judiciary.
2012.03.20 Human Rights Watch institutionally-corrupt-courts