BURMA: International Bar Association writes on case of two lawyers jailed for contempt 

U Aung Toe
Chief Justice
Office of the Supreme Court
Office No. 24
Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145
Fax: + 95 67 404 059

26 November 2008

Dear Chief Justice

We are writing on behalf of the International Bar Association’s Human Rights Institute (IBAHRI) to express our concern regarding the incarceration of the lawyers U Khin Maung Shein and U Aung Thein.

In its role as a dual membership organisation, comprising 30,000 individual lawyers and over 195 Bar Associations and Law Societies, the IBA influences the development of international law reform and shapes the future of the legal profession. Its Member Organizations cover all continents. The Human Rights Institute works across the association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

Reports indicate that the lawyers were arrested following the submission of a written statement of their clients’ desire to relinquish their power of attorney. The defendants stated that they no longer had ‘faith in the judicial processes,’ and therefore wished to dismiss their lawyers.  The court claimed that this had not been stated by the defendants at the previous hearing, and it was subsequently deemed as the opinion of the lawyers.  However, reports show that the defendants had expressed these wishes orally at the previous hearing, and that the court had then requested it from the lawyers in writing.

The lawyers claim that they were stating the wishes of their clients, and as they no longer had consent to represent these clients they were obliged to inform the courts of their withdrawal. The documents presented to the court were allegedly construed by the judge as contempt of court.

It is also alleged that the lawyers in question were convicted without a trial and therefore not given the opportunity to defend the charges brought against them. This contravenes the Constitution of the Republic of the Union of Myanmar where Article 19 states that ‘justice must be dispensed in an open court’ and also Article 375 which states that ‘an accused shall have the right of defence in accord with the law’.

We are concerned that the judgement brought against Mr Shein and Mr Thein represents a constraint on their professional functions and duties to their clients. In Article 18 of the UN Basic Principles on the Role of Lawyers states that ‘lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions’ and Article 20 that ‘lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal administrative authority’.

We are concerned that the arrest of these lawyers reflects a growing discontentment with the judicial system in Myanmar, and that this acts to prevent their opinions being voiced to the public in this period of unrest. Reports indicate that other lawyers have also been penalised for their involvement in cases critical of the current legal system.

The IBAHRI calls on the government to recognise the rights of lawyers to represent their clients and carry out their professional functions without intimidation or harassment, as cited in Article 16 of the UN Basic Principles. Not acting to defend these rights threatens the credibility of Article 354 of the national Constitution, which upholds the rights of freedom to express and publish freely convictions and opinions. Furthermore, we urge you to ensure lawyers feel free to express their opinions and are able to act in the best interests of their clients without intervention from the government.

We look forward to your urgent response.

Yours sincerely

Ambassador Emilio Cárdenas
Justice Richard Goldstone
Human Rights Institute Council Co-Chairs

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About AHRC: 
The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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Document Type : Forwarded Open Letter
Document ID : AHRC-FOL-017-2008
Countries : Burma (Myanmar),