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University of Yangon
Department of Law

Prerogative Writs as Constitutional Remedies in Myanmar

Submitted by-
Mg Naing Aung Hlaing
Nang Su Htar Nee
(Date:17.8.2023)
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Prerogative Writs as Constitutional Remedies in Myanmar

Contents
Introduction ……………………………………………………………..2
The Nature of Writs....................................................................................2
Jurisdiction of Writs under the 2008 Constitution of the Republic of the
Union of Myanmar.....................................................................................3
Limitations on the Jurisdiction of Writs in Myanmar................................4
Kinds of Constitutional Remedies granted under the 2008 Constitution of
the Republic of the Union of Myanmar......................................................6
(1) Writ of Habeas Corpus..................................................................6
(2) Writ of Mandamus.........................................................................7
(3) Writ of Prohibition.........................................................................8
(4) Writ of Certiorari...........................................................................9
(5) Writ of Quo Warranto..................................................................11
Requirements in submitting writ application...........................................12
Process of the Hearing Board...................................................................12
Conclusion................................................................................................13
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Prerogative Writs as Constitutional Remedies in Myanmar

Introduction
Every citizen is guaranteed certain fundamental rights under the Constitution
of the Republic of the Union of Myanmar, 2008. However, granting fundamental
rights alone is not sufficient, they must also be protected. So, for the protection of
fundamental rights, a remedy is given by empowering the Supreme Court to issue
writs when the fundamental rights of any citizen is violated. The 2008 Constitution
recognizes the right to constitutional writs, and this provides a check on the power of
the executive and an avenue for individual to challenge the decision of the
subordinate courts. At present, under the 2008 Constitution, the Supreme Court of the
Union has the power to issue five kinds of writs: Habeas corpus, Mandamus,
Prohibition, Quo Warranto and Certiorari, and the power to issue writs under this
Constitution was practiced in 2011.

The Nature of Writs

In general, writs, known as breve in Latin, was a written short command
issued by the person in authority addressed to the other person or authority to follow
the things mentioned therein, and it was sealed in proof of the authentication of the
document.1 Writs were originally the prerogative remedies in the common law
countries since they were sought only on the suit to the Crown. Later, they became
available to use by the ordinary citizens and at the present day, any private individual
may apply to the Supreme Court for the issue of the writs concerned with
constitutional remedies. In English Common Law, prerogative writs such as certiorari,
prohibition and mandamus provided the principle machinery of review over quasi-
judicial functions.2 Nowadays, those writs are guaranteed in the constitution as
constitutional remedies to protect the constitutional rights of the citizens and review
over the quasi-judicial functions by applying the procedures of application to the
Supreme Court.
According to S.A de Smith, the term quasi-judicial function is a “judicial
process” where the decision is made by the discretionary power of the executive. It is
1
Edward Jenks, D.C.L., The Prerogative Writs in English Law. Yale Law Journal, Vol XXXII, 1923
2
SA de Smith, The Prerogative Writs, 1951, CLJ 40.
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the judicial features of quasi-judicial function entrusted to a Minister or the tribunal

for the affairs of the public. Hence, when an agency or administrative body decides a
dispute, it is required to act judicially according to the law of natural justice, and it is
called the quasi-judicial as result of the compromise between judiciary and the
executive. A quasi-judicial decision can be reviewed by a court of law and if that is
ultra or in excess of the legal powers of the tribunal can be quashed on a writ of
certiorari and if necessary a write of prohibition. These writs can be issued only
against bodies exercising judicial or quasi-judicial functions.3
Myanmar adopted the British common law system of administrative law with
its emphasis on the prerogative writs as originally developed in England. 4 In
Myanmar, regaining independence in 1948, after that from 1948 to 1972, it has been
used of the writs. Under the Constitution of the Socialist Republic of the Union of
Burma (Myanmar) 1974, the writ jurisdiction system was not exercised. Hence, it has
not been used between 1974 and 2010. Under the Constitution of the Republic of the
Union of Myanmar, 2008, the Supreme Court of the Union shall have power to issue
directions in the nature of Habeas Corpus, mandamus, prohibition, quo warranto and
certiorari appropriate to the rights guaranteed. According to Section-2 (b) of the Law
Relating to the Application of Writ, 2014, Writ means Writ of Habeas Corpus, Writ of
Mandamus, Writ of Prohibition, Writ of Quo Warranto and Writ of Certiorari.5

Jurisdiction of Writs under the 2008 Constitution of the Republic of the Union of
Myanmar
If any constitutional rights under the 2008 Constitution of the Union of
Myanmar are breached, the power to invoke those remedies are exercised through the
procedure of the writ application to the Supreme Court of the Union of Myanmar, not
the Constitutional Tribunal of the Union of Myanmar. All constitutional writs
applications are centralized and heard by the Supreme Court. 6 In terms of the
constitutional remedies, prerogative writs are also constitutionalized in Myanmar’s

3
S. A. de Smith, Constitutional and Administrative Law, Third edition, Penguin Education, 1977, p-
516
4
Dr. Melissa Crouch, ACCESS TO JUSTICE AND ADMINISTRATIVE LAW IN MYANMAR,
OCTOBER 2014, p-2.
5
Section-2 (b) of the Law Relating to the Application of Writ, 2014.
6
Section – 378 (a) of the 2008 Constitution of the Republic of the Union of Myanmar.
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constitutions such as the Constitution of the Republic of the Union of Burma 1947
and the 2008 Constitution of the Republic of the Union of Myanmar.
The Supreme Court of the Union of Myanmar is empowered to issue the five
kinds of writs or constitutional remedies to recover the loss of constitutional rights
granted to any individual in the 2008 Constitution of the Union of Myanmar. 7 The
five kinds of writs that are empowered to issue by the Supreme Court of the Union are
(i) Writ of Habeas Corpus; (ii) Writ of Mandamus; (iii) Writ of Prohibition; (iv) Writ
of Quo Warranto; (v) Writ of Certiorari. 8 Under the 2008 Constitution, if a Myanmar
citizen wishes to challenge that the acts of the government that violates his or her
constitutional rights expressed in Chapter VIII, named “Citizen, Fundamental Rights
and Duties of the Citizens”, he can be protected under the jurisdiction of the Supreme
Court through the writs proceeding in Section 377. 9 There is currently no opportunity
for individuals to bring writ cases to the State and Region High Courts; this right is
only available in the Supreme Court.10 Moreover, section 16 (a) of the Union
Judiciary Law 2010 also grants the Supreme Court of the Union the power to issue the
writs.11 To sum up, the Supreme Court of the Union under the 2008 Constitution has
jurisdiction to hear complaints against the government by way of the writs as a
constitutionally protected remedy.

Limitations on the Jurisdiction of Writs in Myanmar

When it comes to the issue of writs for the review of the administrative acts,
the Supreme Court is the only court that has the jurisdiction though there are some
situations to limit that jurisdiction. However, the Supreme Court shall suspend the
applications for the issue of writ in the areas where the state of emergency is
declared.12 According to Section-3 (c) of the Law relating to the Application of Writ,
2014, The Supreme Court of the Union shall not suspend the request to the rights
contained in Section 377 of the Constitution unless it is required for public security at

7
Section – 296 (a) of the 2008 Constitution of the Republic of the Union of Myanmar.
8
Sections – 378 (a) & 296 (a) of the 2008 Constitution of the Republic of the Union of Myanmar.
9
Section – 377 of the 2008 Constitution of the Republic of the Union of Myanmar.
10
Dr. Melissa Crouch, ACCESS TO JUSTICE AND ADMINISTRATIVE LAW IN MYANMAR,
OCTOBER 2014, p-4.
11
section 16 (a) of the Union Judiciary Law 2010.
12
Section-296 (b) of the 2008 Constitution of the Republic of the Union of Myanmar and Section-3 (b)
of the Law Relating to the Application of Writ, 2014.
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the time of the occurrence of any following situations: (i) in time of war; (ii) in time
of foreign aggression; (iii) in time of insurrection. 13 It is also stated in section-379 of
the 2008 Constitution of the Republic of the Union of Myanmar.14
Furthermore, there is another common feature of law-making, which is the use
of ouster clauses or finality clauses that is basically any provision in legislation that
seeks to restrict, limit or oust the jurisdiction of the court. 15 In other words, finality
clauses are provided by the statue to declare that the decision of the administrative
agency shall be “final and conclusive”. These finality clauses in Myanmar typically
provide that a committee, which has powers of review over a certain application
process, has the authority to make final decisions that cannot be reviewed by a court.
For example, according to section-25 of the Farmland Law, 2012, the decision of the
Region or State Farmland Management Body is ‘final’. Hence, this could mean that
an applicant who does not agree with the decision of the Management Body cannot go
to court. However, the constitutional writs could be interpreted by the courts as a
fundamental right that cannot be restricted by the legislature. If this interpretation was
accepted by the courts, there is potential for such cases to receive a hearing through
the writ procedure in the future.16
The Supreme Court of the Union can only exercise the jurisdiction of writs
after the exhaustion of the administrative remedy by the aggrieved person. To give an
example, in the case of U Zaw Phyu vs Chairman of Tanintharyi Region Farmland
Management Body & 1, the Supreme Court of the Union issued writs of quo warranto
to quash the decision made by the Tanintharyi Region Farmland Management Body
as an ultra vires act of administrative body, although there has been a finality clause in
Farmland law.17 However, the finality clause expressed in the 2008 Constitution
would certainly prevent the Supreme Court of the Union from exercising the
jurisdiction of writs. There are some provisions exhibiting the finality clause such as
the judgements of the Supreme Court of the Union in Section 295 (c), the resolution
of the Constitutional Tribunal of the Union in Section 324, the decision of the

13
Section-3 (c) of the Law Relating to the Application of Writ, 2014.
14
section-379 of the 2008 Constitution of the Republic of the Union of Myanmar.
15
Dr. Melissa Crouch, ACCESS TO JUSTICE AND ADMINISTRATIVE LAW IN MYANMAR,
OCTOBER 2014, p-5.
16
Ibid, p-5.
17
U Zaw Phyu vs Chairman of Tanintharyi Region Farmland Management Body & 1, 2014, Civil
Miscellaneous Case No. 305.
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Commander-in-Chief of the Defense Services in Section 343 (b), the resolutions and
functions made by the Union Election Commission in Section 402 under the 2008
Constitution.18

Kinds of Constitutional Remedies granted under the 2008 Constitution of the

Republic of the Union of Myanmar
Under the 2008 Constitution, The Supreme Court of the Union of Myanmar
has the power to issue five kinds of constitutional writs or remedies such as-
(i) Writ of Habeas Corpus;
(ii) Writ of Mandamus;
(iii) Writ of Prohibition;
(iv) Writ of Quo Warranto; and
(v) Writ of Certiorari.

(1) Writ of Habeas Corpus

The term habeas corpus comes from the Latin meaning “that you have the body of
the detainee brought before the court or tribunal”. A writ of habeas corpus orders the
guardian of an individual in custody to offer the individual before the court to make
an investigation concerning his or her detention, to appear for prosecution or to
testify.19 According to Section (2)(c) of the Law Relating to the Application of Writ,
2014, writ of Habeas Corpus means a writ issued in writing after causing to bring the
detainee to the office of writ and hearing whether are not the detention is in
conformity with Law by any Court of the Republic of the Union of Myanmar or any
competent authority.20 While Sections 353 and 367 of the 2008 Constitution protect
against arbitrary detention and provide a right to be brought before a court, writ of
habeas corpus allows individuals to challenge the legality of detention. The inclusion
of habeas corpus brings the Constitution closer to international standards that enshrine
the right of all persons deprived of their liberty ‘to take proceedings before a court, in

18
Sections 295 (c), 324, 343 (b) and 402 (a) of the 2008 Constitution of the Republic of the Union of
Myanmar.
19
https://www.usmarshals.gov/what-we-do/service-of-process/criminal-process/writ-of-habeas-corpus
20
Section 2(c) of the Law Relating to the Application of Writ, 2014.
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order that that court may decide without delay on the lawfulness of his detention and
order his release if the detention is not lawful.’21
In the case of Daw Mar Khon Vs. Battalion Commander U Aung Zaw Oo (or) the
Presiding Officer, Column Commander (Kha La Ya- 37) Myit Kyi Nar Township, the
applicant applied to the Supreme Court of the Union to issue an order of habeas
corpus as her husband, U Brang Saing, while he was sleeping at 11:00 pm on 5th Jan
2012, was arrested by Kha La Ya-37, Battalion, Tar Law Gyi Camp and was detained
at Upper monastery of Tar Law Gyi. The Respondent did not deny arresting U Brang
Saing. He explained that on 7 February 2012, (almost a month after his arrest) a case
was filed against the detainee under Section 17(1) of the Unlawful Association Act.
The Supreme Court accepted that the Myitkyina Township Court had acted in line
with Section 167 of the Criminal Procedure Code, which gives it the power to
authorize detention of a person during a police investigation beyond an initial 24-hour
period for which the police is empowered to exercise detention powers. The Supreme
Court decided that there was no need to issue a writ of habeas corpus and dismissed
the application.22 The Supreme Court of the Union has not issued the writ of habeas
corpus in a single case from 2011 to 2019.

(2) Writ of Mandamus

Mandamus literally means “command”. It means that it commands the person to
whom it is addressed to perform judicial or quasi-judicial duty which he has refused
to perform.23 According to Section (2) (d) of the Law Relating to the Application of
Writ, 2014, Writ of Mandamus means a writ issued in writing to comply with Law by
any competent person; or any authority; or any government department for the failure
to comply with the power conferred thereon. 24 The main objective of this writ is to
keep the public authorities within the purview of their jurisdiction while performing
public duties. Writ of Mandamus is issued when a petitioner satisfies the following
points. (i) That he has a legal right. (ii) That has already demanded the performance

21
International Commission of Jurists, Handbook on Habeas Corpus in Myanmar, Geneva,
Switzerland, 2016, p-16.
22
No.1 (Criminal Miscellaneous application), 2012
23
Dr. Durga Das Basu, Introduction to the Constitution of India, 20th Edition Reprint, Lexis Nexis,
2011, p. 136.
24
Section 2 (d) of the Law Relating to the Application of Writ, 2014.
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but the authority refused to act and (iii) That, there is no effective alternative
remedy.25
A writ of mandamus was issued in the case of Daw Tin Nwet v Collector
(District Administrator) General Administration Department of Taungoo and three
others. In this case, the collector passed an order to revoke a grant that was in the
applicant’s name and categorized her land as state land without examining her.
Therefore, she applied for a writ of mandamus against this collector’s order. In this
case, with regard to the change and issuance of grant land, which was in the name of
the applicant’s father, it had not been shown that any interested persons lodged any
appeal within the limited timeframe under Rule 136 of the Lower Burma Land and
Revenue Rules and Rule 75 (1) of the Lower Burma Towns and Village Lands Rules.
Nevertheless, the Director General of the General Administration Department, who
was using the revision powers under Section 40 of the Lower Burma Towns and
Village Lands Act, instructed the District General Administrator to revoke the
applicant’s grant. The former did not give any reasons for revoking this grant and
there were no facts indicating that the applicant broke the rules or that she
fraudulently applied for the grant. Therefore, at that time, she was allowed to get the
grant. Fifteen years later, the respondents gave out instructions for the grant to be
revoked without according her the opportunity to be heard. This infringes upon the
rights of defense as provided for by the Constitution under citizens’ rights. Therefore,
revoking the grant, which was in the name of the applicant, did not appear to be
consistent with the authority given by law. As a result, the Supreme Court set aside
the instructions by issuing the writ of mandamus. Therefore, this civil application was
allowed with costs to the applicant and the instructions issued by the District General
Administration Department on 23.1.2015 were set aside and the order for acquiring
the applicant’s land as the state land dismissed.26

(3) Writ of Prohibition

Writ of prohibition means ‘a writ issued in writing not to perform beyond the
jurisdiction (ultra vires) or against justice in any proceeding of any Court or any

25
Keshav Jha, Writs: Utility in Administrative Law, International Journal of Management and Social
Sciences Research (IJMSSR) Volume 7, No. 4, April 2018, p-93.
26
2015 Civil Miscellaneous Case No. 41.
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quasi-judicial matter.’27 It is a judicial writ or process issued out of a Court of superior

jurisdiction and directed to an inferior Court for the purpose of preventing the inferior
Court from usurping a jurisdiction with which is it is not legally invested, or to
compel Courts entrusted with judicial duties to keep within limits of their jurisdiction.
After the issuance of this writ, the proceedings in the lower court stop immediately,
and the case is transferred to the authority that has authorized jurisdiction over the
case. This writ can also be termed as a “stay order”.
In the case of U Myint Than and 5 vs. The Republic of the Union of Myanmar
and 228, the High Court of Mandalay Region, as the Revision Court has the power to
act and affirm the decision of the original court under Section 522(3) of Criminal
Procedure Code. While applying for the issue of writs of prohibition to the Supreme
Court of the Union, the Court cannot interfere in a case which is within the
jurisdiction of a subordinate Court. If the applicants were not satisfied with the order
of the High Court of Mandalay Region, they could apply for a revision to the Supreme
Court. After the Supreme Court heard the case, since there was no reason to make a
preliminary decision to the defendant to show causes, the court rejected the
application for the writ of prohibition.
Moreover, in U Nay Win and 91 vs. Head of the Department of Engineering
Water and Sanitation, Yangon Municipal Development Committee29case, it was held
that for the action of the Yangon Municipal Development Committee issuing a
management notice, not a matter of court or judicial order, the Supreme Court
rejected the application since it is not a matter that can issue a writ of prohibition as
prohibition is a kind of writ which only prohibit judicial or quasi-judicial body that is
beyond its jurisdiction.

(4) Writ of Certiorari

Writ of certiorari means “a writ issued in writing to be the decision in
conformity with Law if it is found that the decision of any Court or any quasi-judicial
matter is not in conformity with Law” 30. It is a kind of writ where the higher court
27
Section 2(e) of the Law Relating to the Application of Writ, 2014.
28
U Myint Than and 5 vs. the Republic of the Union of Myanmar and 2, N0.1 (Criminal Miscellaneous
Application) 2011.
29
U Nay Win and 91 vs. Head of the Department of Engineering Water and Sanitation, Yangon
Municipal Development Committee, No.222 (Civil Miscellaneous Application) 2014.
30
Section 2(g) of the Law Relating to the Application of Writ, 2014.
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have the authority to quash an already passed order by the subordinate courts in order
to correct the mistakes made by the judiciary at the lower level. For example, when
the decision of the lower court violates the fundamental rights of either of the parties,
the aggrieved party can file for the writ of certiorari.
Order of certiorari is not limited to judicial acts or order in strict sense, but it
extends to the acts and orders of any competent authority which has power to impose
a liability or to give a decision which determines the rights or properties of the
affected parties, therefore this writ can exercise over administrative bodies exercising
judicial power. The object of this writ is to bring up the records of an inferior court or
quasi-judicial body before a superior court for the purpose of examination as to their
legality or giving more satisfactory effect to them.
Both the writs of certiorari and prohibition appear to be the same but there is
one major difference between the two. In the writ of prohibition, the superior court
issues the writ before the final order is passed by the inferior court and therefore this
is a preventive remedy. While in writ of certiorari, the superior court issues the writ
after the inferior court has made the final order. Thus, the writ of certiorari is a
corrective remedy by which the order of the inferior court is quashed.
In the case of Daw Win Win Khaing (her agent, U Kyaw Zay Ya) v.
Arbitration Council and 2 others 31, Daw Win Win Khaing, the owner of Gallant
Ocean Cooling Factory, paid each fifty-one-worker including Daw Mar Mar Khin,
only 5,000 Kyats as Thingyan bonus, whereas she paid other workers 100,000 Kyats
and above and daily wage earners 60,000 Kyats and above. The fifty-one workers
including Daw Mar Mar Khin claimed that everyone should receive equal amount of
bonus and therefore applied to the Yangon Region Arbitration Body and the
application was dismissed. The fifty-one workers including Daw Mar Mar Khin,
being dissatisfied with the decision of the Arbitration Body, applied to the Arbitration
Council. The Arbitration Council decided that Daw Win Win Khaing should pay the
fifty-one workers including Daw Mar Mar Khin, 60,000 Kyats each for bonus. Daw
Win Win Khaing made an application for the writ of certiorari on the decision of the
Arbitration Council for its decision was ultra-vires its authority. It was held that
Thingyan bonus does not pertain to mandatory financial rights of workers such as
31
Daw Win Win Khaing (her agent, U Kyaw Zay Ya) v. Arbitration Council and 2 others, No.224
(Civil Miscellaneous Application) 2014.
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salaries. Depending on the different levels of performance at workplace, more or less

is defined by the employer. Bonus are given by the employer to the workers for their
performance and as other remunerations and benefits and there is no provision in law
to pay bonus to all the workers at equal rate. The decision of the Arbitration Council
was ultra-vires and therefore, the Supreme Court issued the writ of certiorari and
quashed the decision of the Arbitration Council.

(5) Writ of Quo Warranto

Writ of quo warranto means “a writ issued in writing whether or not it is in
conformity with Law after hearing whether or not any government department or any
empowered authority has carried out in accord with laws, rules, regulations, by-laws,
procedures, orders, notifications, directives issued on person or persons” 32. This writ
is issued asking public servants or any private person to prove under what authority
they are holding a certain public office. This prevent any person from wrongfully
usurping a public office without any authority. For example, if a public servant is
holding a public office even after his retirement, then this writ can be issued against
him as he no longer has the authority to hold such a public office.
In the case of Daw Tin Tin Win (a) Daw Tin Tin Aye and 2 vs. Civil Planning
and Land Administration Department, Yangon Municipal Committee and 3, 33 the
Civil Planning and Land Administration Department permitted to change the legal
ownership of plot from the original owner’s name to the respondents’ name in which
the respondents has not obtained the registration contract from the original owner who
has the land title and land lease agreement, and also the respondents has not received
the order of the Court. It can be said that the action of the Civil Planning and Land
Administration Department is not in accordance with the procedure of the Urban
Planning and Land Management Procedure. Therefore, the Supreme Court has the
right to interfere and cancel the action by issuing a writ of quo warranto.

32
Section 2(f) of the Law Relating to Application of Writ, 2014.
33
Daw Tin Tin Win (a) Daw Tin Tin Aye and 2 vs. Civil Planning and Land Administration
Department, Yangon Municipal Committee and 3, No.118 (Civill Miscellaneous Application) 2017.
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Requirements in submitting writ application

It is necessary to make application for writ of prohibition and writ of certiorari
within two years from the date of the cause of action when the petitioner suffers any
harm because of an act or decision of an administrative authority or of a Court. 34 The
application of writ must be made in accordance with the rules and laws prescribed by
the Supreme Court of the Union. The facts that should be contained in the application
are the particulars of the writ petitioner and the respondent, the writ which the
petitioner is seeking, the facts of the cases explaining what, when, how and how much
the petitioner suffered damages or losses in detail because of the act or the decision of
the respondent. The petitioner must sign and submit his application for writ along
with an affidavit supporting his application.
If the petition is submitted by the one who is convicted through the respective
jailor, no court-fee stamp is necessary. However, any other petition shall be affixed
with necessary court-fee stamp for the application and the summons. If the petition for
writ does not meet or contain the necessary requirements set by the laws, it may be
rejected.

Process of the Hearing Board

There are two steps in the process of hearing and deciding the writ petition,
one is for the preliminary hearing for case admission and the other is for the final
hearing. At the preliminary hearing, the Preliminary Hearing Board including three
judges from the Union Supreme Court will hear the petitioner only, and decide
whether the writ petition is admitted or not. If the board admits the petition, the board
will summon the respondent and make him submit the written reply to the petition,
and will hear and decide finally.
The decision and order set by the Final Hearing Board (including three judges
from the Supreme Court) after hearing both side of applicant and respondent shall be
final and conclusive. The person who is dissatisfied with this order has no right to
submit any appeal or revision or judicial review.

34
Section 68 of the Rule Relating to Application of Writ, 2015.
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Conclusion
It can be seen that the writ jurisdiction granted under the Constitution
encompasses five types of writs and each of these writs serves a distinct purpose and
enables the Supreme Court to exercise its authority in the face of executive or
legislative excesses or violation of fundamental rights. It can also be found that the
prerogative powers of writ jurisdiction conferred by the constitution for judicial
review of administrative or legislative action is undoubtedly discretionary and yet
unbounded in its limits. Thus, the Supreme Court, by exercising its discretionary
power on sound legal principles, protect and safeguard the fundamental rights of the
citizen and ensure quick and fair justice for the aggrieved parties.