BURMA: Resolution of the Fourth Regional Consultation on an Asian Charter for the Rule of Law on the case of Supreme Court advocates U Aung Thein and U Khin Maung Shein

We assembled jurists, lawyers and legal academics from throughout Asia gathered in Hong Kong on 17-21 November 2008 for the Fourth Regional Consultation on an Asian Charter for the Rule of Law, are alarmed at the worsening conditions for lawyers in Burma (Myanmar). We wish to draw particular attention to the case of two Supreme Court advocates whose case we have studied in this consultation. The facts of the case as they have been iterated to us are as follows.

Supreme Court advocates U Aung Thein are both lawyers of over 20 years experience in Burma. They have represented many defendants in criminal cases arising from the protests of September 2007. Among them were five cases lodged against three young men, Ko Htun Htun Oo, Ko Maung Maung Latt and Ko Aung Kyaw Moe, and one young woman, Ma Htar Htar Thet, Felony Nos. 307-311/2008 before Judge Daw Aye Myaing of the Hlaing Township Court in Rangoon (Yangon). The hearings were proceeding, like others from last September, in a special courtroom within the Insein Central Prison, under an order from the Supreme Court.

At the hearing of 3 October 2008 the family members of the defendants were not allowed to enter the courtroom nor leave food for them. Thereafter, at the hearing on October 6, Ko Htun Htun Oo, speaking on behalf of the four defendants, informed the court that as the family members had been denied the right to attend the hearings and as the defendants ¡§no longer had faith in the judicial process¡¨ they had decided that they would no longer cooperate with the court. They would refuse to be examined, give testimony, or cross-examine witnesses through their counsel. They also would withdraw the power of attorney from the two lawyers at the next hearing. After he made this statement, the judge instructed that the same be put to the court through the lawyers. U Aung Thein asked that the court record the same in its record did likewise. It was clear from this procedure that the withdrawal of power of attorney was made through consultation of the clients with their advocates, in accordance with the clients¡¦ wishes. Thereafter the two attorneys left the courtroom.

At the hearing of October 13 U Khin Maung Shein appeared to inform the court that the submissions to withdraw power of attorney had not yet been prepared. Thereafter he left the court.

On October 20 U Khin Maung Shein in the courtroom gave the submissions to withdraw power of attorney in the five cases to the four defendants. They read the documents thoroughly and each signed them. The two attorneys also had their signatures affixed. Then the documents were submitted to the court. At that time the judge said that the remark in paragraph 2 of the submissions to withdraw power of attorney that the defendants ¡§no longer had faith in the judicial process¡¨ had not been made orally at the earlier hearing. Two of the defendants, Ko Htun Htun Oo and Ko Aung Kyaw Moe, both objected that they had said these words and they would again make a submission to the court to this effect. But Judge Daw Aye Myaing said that, ¡§It is too late. Don¡¦t speak.¡¨

The Hlaing Township Court then made an application to the Supreme Court under section 3 of the Contempt of Courts Act, 1926, that, contempt of court may be punished with imprisonment for a term that may extend to six months, in Miscellaneous Criminal Application No. 99/2008, Daw Naw Than Than Aye applicant.

On 6 November 2008 the Supreme Court found the two advocates guilty of contempt of court and sentenced them to four months¡¦ imprisonment each. In a letter of appeal against the sentence, U Khin Maung Shein noted that in Judge Daw Aye Myaing¡¦s report of the proceedings of October 6, ¡§After examination [of a prosecution witness] the defendants did not present any cross-examination,¡¨ which supports the lawyers¡¦ assertion that it was the clients¡¦ loss of faith in the judicial process as stated in the letter that caused this behaviour, not the lawyers¡¦ own ideas. Furthermore, he observed that the clients would not have signed the documents to withdraw power of attorney with the said words if they had not really said them. This fact was even noted by the Supreme Court, which recorded that, ¡§Although Daw Aye Myaing said that the defendants did not know anything about this matter as their signatures are on the submissions this issue needs to be examined for clarification.¡¨

The wives of defendants Ko Htun Htun Oo and Ko Aung Kyaw Moe, Daw Khin Ma Win and Daw Win Maw Aye have also verified that when they each visited their husbands in prison the defendants said that because the families had not been allowed into the courtroom and because they no longer had faith in the judicial process they would withdraw power of attorney from the two lawyers. The two wives wanted to submit affidavits to the court to this effect but had been denied the opportunity.

Like defendants from last September 2007, the prison authorities have transferred the two lawyers to prisons remote from their families, in the Irrawaddy Division. U Aung Thein is now at the Bassein Prison, at the divisional capital. U Khin Maung Shein is now in the Myaungmya Prison, further to the west. They are due for release on 7 March 2009.

The international standard concerning contempt of court today, one reflected in section 13 of the Contempt of Courts Act 1971 of India, is that it must substantially interfere, or tend to substantially interfere, with the due course of justice. There is nothing in any of the available information concerning this case to indicate that such substantial interference in the working of the court has occurred from the two lawyers merely recording the view of their clients that they ¡§no longer had faith in the judicial process¡¨ as the reason for the withdrawal of their power of attorney. Furthermore, the United Nations Human Rights Committee has observed in its jurisprudence ¡§that the imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within the prohibition of ¡¥arbitrary¡¦ deprivation of liberty¡¨ within the meaning of the International Covenant on Civil and Political Rights (article 9[1]) (Mudiyanselage S B Dissanayake v. Sri Lanka, Communication 1373/2005, paragraph 8.2).

Accordingly, the imprisonment of the two Supreme Court advocates in this case must be deemed arbitrary, and we assembled jurists, lawyers and legal academics duly call for the immediate release of U Aung Thein and for no like actions to be taken against other lawyers in Burma (Myanmar) in order that the legal profession be allowed to conduct its work without threat, interference and obstruction.

Furthermore, we express our grave concerns at the state of law in Burma, where, we have learned, criminal procedure has in many respects been completely abandoned such that parties to cases are denied their most basic rights and political interests and corrupt practices determine the outcome of trials. We abhor the executive-cum-military dominance of the judiciary, and express our strong solidarity with lawyers and others in the country working under extremely pressing conditions and against the odds to protect some notion of legality and defend the public interest.

The undersigned,

Justice Nasir Aslam Zahid (retd.), Supreme Court of Pakistan 
Dr. Chandrasekharan Pillai, Dean, Kochi, University of Science & Technology, India 
Mr. S. Ashiq Raza, High Court Advocate, Pakistan 
Mr. Chung Mi Hwa, Lawyer, Former Vice President, Lawyers¡¦ Association for a Democratic Society, Rep. of Korea 
Mr. M. Shamsul Haque, Advocate, Supreme Court, Bangladesh 
Ms. Phromlak Sakpichaimongkol, Lawyer, Lawyers Council of Thailand 
Mr. Jijo Paul, High Court Advocate, India 
Mr. Asep Rahmat Fajal, Director, Indonesian Legal Roundtable 
Mr. Rishikesh Wagle, Lawyer, Nepal 
Mr. Basil Fernando, Director, Asian Human Rights Commission, Hong Kong & Attorney-at-Law, Sri Lanka 
Mr. Bijo Francis, Progamme Officer, South Asia Desk, Asian Human Rights Commission & Lawyer, India

Document Type : Article
Document ID : AHRC-ART-035-2008
Countries : Burma (Myanmar),