Reflections on ILF-Myanmar’s First Union Supreme Court Arguments

By  Bobby Bank, International Fellow, Myanmar (January-March, 2019)

Myanmar law is particularly tough on drug crimes. First-time possession of amounts of drugs recognized by the court to be for personal use, not for sale, can expose citizens of Myanmar to prison terms of up to ten years. For most of Myanmar’s existence, this problem was exacerbated by an additional requirement that all drug users self-identify and register with the government and undergo government-mandated treatment. For obvious reasons, this requirement was rarely followed by drugs users. If a registered drug user was arrested and failed a urine drug analysis, you could be subjected to an additional 3-5 years, often applied consecutively. If you were found with a personal use amount of drugs and failed a drug test, you would be facing as much as 15 years.

In 2018, however, Myanmar essentially decriminalized the status of being a drug user. Requirements for registering and treatment were altered, including abolishing the requirement that anyone register as a drug user. The most important change, though, was that any violation of procedure for the new process would result in mandatory community service, rather than prison time. This was a big step forward in Myanmar, but the law failed to provide for cases pending before the court, where a person failed to register as a drug user. Unfortunately for citizens with pending cases, Judges refused to sentence offenders who were arrested prior to the new law, but convicted under the new law, to community service, even though in reforming the law the Myanmar legislature had determined that people should not be imprisoned for such an offense.

At trials and in appeals, our lawyers argued vigorously that their clients could not be convicted of a charge that was no longer criminal and should not be sentenced to prison. Recently, the ILF selected a handful of cases with this important legal issue to appeal to the Supreme Court of Myanmar. This was no small task: ILF-Myanmar is still a young program, and none of its lawyers, including its most senior lawyer, had ever represented any client before the Supreme Court, let alone three at one time.

With the scope of the task in mind, preparations began immediately on developing and practicing the argument. Our lawyer also struggled on a personal level, bringing to me mounting concerns about the Supreme Court’s ability to take away her law license if she argued that there were lower level judges that were violating the Constitution by denying our arguments. For three months we worked through these challenges. She practiced and perfected her arguments, researched, spent long nights writing draft after draft, and indeed came to passionately believe in arguments that she had once fostered some doubts about. In March of 2019, she stood in front of the Supreme Court armed with briefs containing Myanmar case law, constitutional provisions, and statutory analysis and gave a full hearted oral argument for her clients.

In the end our cases weren’t accepted for additional arguments. However, ILF-Myanmar learned a great deal from this experience: 1) The value of perseverance: our lawyer and her colleagues fought with every breath for each of their clients; 2) The value of education: the court system was educated about what was going on with the change in Myanmar policy regarding drug use in the country, not to mention the education they received about the ILF’s commitment to advocacy; and 3) The value of progress: as our lawyer and the rest of the staff grew and evolved over the course of this process, they gained more experience in three months preparing this argument than many lawyers in the courtrooms she practices in will learn in a lifetime.

facebook Back to Top