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BURMA: Another human rights lawyer's licence unlawfully revoked

March 26, 2010

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-032-2010

26 March 2010
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BURMA: Another human rights lawyer’s licence unlawfully revoked

ISSUES: Administration of justice; rule of law; lawyers; human rights defenders
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CAMPAIGN WEBPAGE
DEFEND RIGHTS OF LAWYERS IN BURMA
http://campaigns.ahrchk.net/burma-lawyers/

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Dear friends,

The Asian Human Rights Commission (AHRC) has learned of another case of a human rights lawyer in Burma whose licence to practice was revoked after being released from prison. The lawyer, Ko Phoe Phyu, was freed after heavy pressure from the International Labour Organisation as he had been imprisoned for representing villagers in cases contesting authorities' illegal land confiscations. Like other lawyers who have served time for made-up cases after they represented people against state interests, he was not given a chance to defend himself before being notified that he has lost his licence, and there were no valid grounds for the revocation.

CASE DETAILS

In 2009 the AHRC issued an appeal on a case of military occupation and confiscation of land in Burma over which some 50 farmers lodged a complaint with the International Labour Organisation (ILO) representative in the country (AHRC-UAC-009-2009). After that, the army unit interrogated and tortured four men about the complaint, before handing two, Ko Zaw Htay and U Hla Soe, to the police for prosecution. After Hla Soe agreed to testify against Zaw Htay, the charges against him were dropped and only the latter was prosecuted and convicted. 

As the case was going on, Ko Phoe Phyu was himself arrested while representing the accused. When he went to attend hearings he was taken to the local council and questioned by police and councillors while they searched his belongings. Then Special Branch and township officials arrested him after he had gone to give case files to another lawyer. They charged him with attempting to form an association unlawfully, which was in fact his youth lawyers firm, and a court sentenced him to four years' imprisonment.

After strong ILO intervention, the sentence against Phoe Phyu was reduced to one year, and he was released from prison on 5 March 2010. But shortly after his release he received a notice that his licence had been revoked.

The revocation of Phoe Phyu's licence is unlawful, because he has a right to have a hearing and to defend himself against the loss of the licence beforehand, but this was not done. Also, the ground for revoking the licence cannot just be a criminal conviction but one that makes the person unfit to serve as a lawyer. It is hard to see how even the concocted case against Phoe Phyu could fall into that category. What is clear, rather, is that the revocation of the licence is a vengeful act typical of the current regime in Burma aimed at removing a person's means of livelihood on top of the unjust prison term that he already served.

Further details of the case are in the sample letter below, as usual.

BACKGROUND INFORMATION

Other lawyers representing persons accused of antigovernment offences in Burma have also lost their licences, including U Aung Thein and U Khin Maung Shein, on whose case the AHRC set up a campaign page. See also the case of U Aye Myint: AHRC UP-139-2006.

On the use of various non-penal legal sanctions to target political opponents and perceived threats to the dictatorship in Burma, see AHRC-STM-045-2010.

Since 2005 the AHRC has issued over 150 detailed appeals and updates on a wide variety of human rights cases in Burma. To browse these, go to the appeals homepage and type "Burma" or "Myanmar" into the search box: http://www.ahrchk.net/ua/. See also articles and special reports on the article 2 website:http://www.article2.org/search.php again search for Burma/Myanmar; and, see the 2009 AHRC annual report on Burma.

The AHRC Burmese-language blog, Pyithu Hittaing, is also updated constantly for Burmese-language readers, and covers the contents of urgent appeal cases, related news, and special analysis pieces. 


SUGGESTED ACTION:

Please write to the persons listed below to request the immediate restoration of Ko Phoe Phyu's licence. Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma. 

Please be informed that the AHRC is writing a separate letter to the UN Special Rapporteurs on Myanmar, independence of judges and lawyers, and human rights defenders, as well as the regional human rights office for Southeast Asia and the representative of the ILO in Burma calling for interventions into this case.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Reverse unlawful revocation of lawyer's licence

Victim: Ko Phoe Phyu (a.k.a. U Yan Naing Aung), 30, resident of Thingangyun Township, Yangon
Case for revocation: Conviction under section 6, Association Formation Law 6/1988, in Criminal Case No. 587/2009, Magwe Township Court; revocation as per Legal Practitioners Act 1880, section 12 read with section 13(f), order given in letter of 11 March 2010 from Judge Myint Aung, Yangon Divisional Court, on order of Supreme Court

I am writing to express my disappointment on learning that another lawyer in Myanmar has had his licence revoked apparently as a form of revenge for his having represented persons in conflicts with the state. According to the information that I have been given, after Ko Phoe Phyu was released from prison this March, he received a letter from the Yangon Divisional Court notifying him of the revocation of his licence.

I am informed that the revocation is unlawful for the following reasons:

1. Under section 12 of the Legal Practitioners Act, the Supreme Court may revoke a lawyer's licence if he is convicted of a criminal offence "implying a defect of character which unfits him to be" a lawyer. In this case, the alleged criminal offence related to the setting up of a firm known as the Myanmar Youth Lawyers, and there is nothing in the alleged offence for which the lawyer was convicted to imply any such defect of character. In fact, Phoe Phyu set up this law firm to fight for the defence of the legal rights of accused persons in Myanmar in accordance with the law, and if anything, he ought to be commended for the demonstration of high character and virtue in doing this, not sanctioned for it.

2. Under section 14 of the same law, as well as under other relevant rules, there are established procedures to notify a lawyer of disciplinary action against him and to entitle him to mount a defence against disbarment. However, in this case no such procedure was followed and Phoe Phyu was simply notified that his licence had been revoked.

As the Office of the Attorney General only a few years ago republished and widely distributed copies of this law together with commentary on the rights and duties of lawyers in Myanmar, I find it surprising that the Supreme Court would have overlooked the relevant law in this case, and can only assume, consistent with other cases of this sort, that it has deliberately violated the law in order to exact extra-legal vengeance on a person whom the authorities in Myanmar deem as a threat because of his insistence upon defence of legal rights, rather than the type of illegality and abuse of rights that are prevailing in the country today, in no small part due to this type of official behaviour.

I am aware that Phoe Phyu is by not the first lawyer in Myanmar to have his licence revoked unlawfully in Myanmar during recent times. I am informed that there are hundreds of other cases like his, and point to the case of U Shein Than and U Khin Maung Shein, who served four-month jail terms on a groundless charge of contempt of court whereupon they too had their licences revoked.

Accordingly, I urge that Ko Phoe Phyu, U Shein Than and U Khin Maung Shein and all other lawyers in Myanmar whose licences have been revoked not in accordance with law have those licences restored so that they are able to earn their livelihoods in the profession for which they had trained and the interests of the people of Myanmar whom they are keen to serve.

I also call upon the Supreme Court of Myanmar not to engage in any more revocations of this sort and point out that in this year that the government has announced plans for a general election, there is a large amount of international interest on the country and not least of all on the role of the judiciary in perpetuating military rule there. The chief justice and other senior judges must share blame for the atrocious un-rule of law in Myanmar today and should be aware that continued actions to violate the rights of lawyers will only in the long run do them more harm than good.

Yours sincerely

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PLEASE SEND YOUR LETTERS TO:

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

2. U Aye Maung
Attorney General
Office of the Attorney General
Office No. 25
Naypyitaw
MYANMAR
Tel: +95 67 404 088/ 090/ 092/ 094/ 097
Fax: +95 67 404 146/ 106

3. Lt-Gen. Thein Sein
Prime Minister
c/o Ministry of Defence
Naypyitaw
MYANMAR
Tel: + 95 1 372 681
Fax: + 95 1 652 624

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC) (ua@ahrc.asia)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-032-2010
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.