BURMA: A judge admits to having no authority over his own court 

The Asian Human Rights Commission has closely followed the case of Phyo Wai Aung, who is the sole person detained and accused in connection with blasts on 15 April 2010 in Rangoon that killed 10 people and injured 168. Phyo Wai Aung has steadfastly maintained his innocence and has complained that he was brutally tortured for nine days to extract a confession. The AHRC has already issued appeals on his case and its sister organization, the Asian Legal Resource Centre, has submitted a special dossier on the case to United Nations human rights experts (ALRC-PL-009-2010).

Even before Phyo Wai Aung was formally charged, the police chief, army Brigadier General Khin Yi, held a press conference in which he described the accused as part of a terrorist cell. The AHRC then pointed out that any trial that followed would be incidental, since the press conference already amounted to a conviction of the defendant (AHRC-STM-089-2010).

As if to underscore that point, the presiding judge in the trial has since admitted in writing that he has no authority over his own court. The trial over which he is presiding is being held at a special courtroom of the central prison, like other cases in which authorities in Burma do not want outside observation or interference.

Not only have prison authorities obstructed the lawyer of Phyo Wai Aung from meeting his client, but on July 14 and 29, and again on August 5, they refused the mother, brother and wife of the accused entry to the courtroom. When the family requested the judge, U Ko Ko Oo (Yangon Northern District Court), to allow them inside he recorded in the court diary on the first two occasions that “whoever should or should not be granted permission to enter or leave the courtroom is not a matter of relevance to the court” and on the third that “permission for the family of the accused to attend the hearing is not a matter for the court”.

That this case has already been decided outside of the courtroom is obvious, so the question of the independence or not of the court to decide the case is irrelevant. But the recording of these statements by the judge amounts to an admission that not only does he not have control over the outcome of the case but also that he does not even have any control over his physical surroundings: that he cannot so much as say who is or is not entitled to sit in the courtroom. This is despite the fact that the law grants him this authority unequivocally, Criminal Procedure Code, section 352 stating that “the presiding Judge… may… order at any stage of any… trial of any particular case that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court”.

The decision to hold the hearing inside the prison was not U Ko Ko Oo’s. It was a decision made by someone somewhere and conveyed to him through an order of the Supreme Court. The verdict also will not be U Ko Ko Oo’s, as it too will be conveyed to him through the judicial apparatus from some other external source. But for the family members who thought that at least U Ko Ko Oo could allow them to sit in his presence, it has come as a surprise to find that his authority does not even reach to the door of his courtroom. Procedurally, this “judge” is as powerless as the man whom he is purportedly trying.

Although this case is one in which special interests have predetermined the outcome and have reduced the role of judge to that of a jester, a silly clown who can do no more than play cruel jokes until the inevitable final act, it is emblematic of the extent to which the courts in Burma have become places in which legality has been turned into parody. In this system, judges, prosecutors and police officers in all types of cases do little more than scribble nonsense. Records consist of contradictions, lacunae and frauds.

In politically motivated cases like Phyo Wai Aung’s, the certainty of conviction makes prosecution and trial no more than ritual, and often not even ritual, since the minimum standards required for that much are frequently not met. In other cases, outcomes are reached through the expedient of money; clever manipulations ensure that what is written, said and apparently done is irrelevant to how matters are decided.

In either type of case, the court is a place of farce, and the only thing to do is to make the best of it. The notion of justice in Burma today, seen through the plight of Phyo Wai Aung, is at best a cynical joke.

Document Type : Statement
Document ID : AHRC-STM-193-2010
Countries : Burma (Myanmar),
Campaigns : Phyo Wai Aung