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BURMA: Licences of lawyers revoked for merely representing their clients' wishes

June 21, 2009

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-062-2009

22 June 2009
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BURMA: Licences of lawyers revoked for merely representing their clients' wishes

ISSUES: Rule of law; military government; judicial system
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CAMPAIGN PAGE
DEFEND THE RIGHTS OF LAWYERS IN BURMA
http://campaigns.ahrchk.net/burma-lawyers

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Dear friends,

The Asian Human Rights Commission (AHRC) has previously reported on the case of two human rights lawyers who were sentenced to four months' imprisonment each for contempt of court, because they withdrew their powers of attorney on the wishes of clients who cited the reason as a lack of faith in Burma's judicial system. Now we regret to inform you that the licences of both lawyers have been revoked in a similarly unlawful manner.  

CASE DETAILS

The AHRC has documented in detail the contempt of court case against and imprisonment of Supreme Court lawyers U Khin Maung Shein and U Aung Thein in September 2008 after they submitted letters to a court withdrawing their powers of attorney citing their clients statements that they had "no longer had faith in the judicial process". The judge attributed the statement to the lawyers rather than their clients and brought a charge of contempt against them. In November the two were found guilty without being able to defend themselves, and were sent to prisons far from their homes in Rangoon. They were released in March 2009.

In May the two rights lawyers were sent a copy of an order disbarring them from practice as lawyers. Ironically, the law revoked their licences under terms of a law that also should entitle them to tribunal hearings, and again, guarantees the right to present a defence in any disciplinary proceedings, which the two were denied.

Full details of the case are available at: http://campaigns.ahrchk.net/burma-lawyers  Additional details also are contained in the sample letter, below.

BACKGROUND INFORMATION:

The AHRC has been documenting numerous cases speaking to what it has described as Burma's "injustice system" and Urgent Appeals on many of these can be accessed by going to the appeals' page and entering "Burma" into the search box: http://www.ahrchk.net/ua/search.php  Two special reports have also been issued in the article 2 periodical, "Saffron Revolution imprisoned, law denied" (vol. 7, no. 3, September 2008) and "Burma, political psychosis and legal dementia" (vol. 6, no. 5-6, December 2007).

There are also a number of related sites, including the AHRC Burmese-language blog, Pyithu Hittaing, and the most recent campaign page on lawyers imprisoned for attempting to defend their clients: http://campaigns.ahrchk.net/burma-lawyers/ 

See also the 2008 AHRC Human Rights Report chapter on Burma.

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SUGGESTED ACTION:

Please write to the persons listed below to call for a review of the procedure to revoke the two lawyers' licences. Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma, and Rangoon should be Yangon.

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

SAMPLE LETTER:

Dear ___________,

MYANMAR: Revocation of lawyers' licences not in accordance with law

Lawyers whose licences revoked:
1. U Aung Thein, Advocate No. 2703, residing in Ward 8, Thingangyun Township, Yangon
2. U Khin Maung Shein, Advocate No. 4660, residing in Bogone Ward, Insein Township, Yangon
Under: Supreme Court Order No. 46/2009, signed by Than Myaing, Director; dated 15 May 2009

I regret to learn that after four months' unjust and illegal imprisonment, two Supreme Court advocates in Myanmar have had their licences revoked, and I call on you to review the allegations against them and reinstate their rights to practice law.

Briefly, I am aware that U Aung Thein and U Khin Maung Shein are both advocates of long experience who in 2008 were representing many defendants in criminal cases arising from the protests of September 2007, including the defendants in Felony Nos. 307-311/2008 before Judge Daw Aye Myaing of the Hlaing Township Court. At the hearing of 6 October 2008 one of the defendants, speaking on behalf of the others, informed the court that as they "no longer had faith in the judicial process" that they would withdraw the power of attorney from the two lawyers. At the hearing of October 20 Khin Maung Shein in the courtroom gave the submissions to withdraw power of attorney. The defendants 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 that the defendants "no longer had faith in the judicial process" had not been made orally at the earlier hearing and said that the lawyers had themselves inserted it.

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. The aforesaid act has no provisions in it at all to define the circumstances or manner in which contempt may be proven or otherwise.

On 6 November 2008 the Supreme Court found the two advocates guilty of contempt of court and sentenced them to four months' imprisonment each, despite its own apparent uncertainty about what had transpired.

After their release on 6 March 2009, the two lawyers went back to work but on 15 May 2009 they were sent copies of Supreme Court Order No. 46 /2009, disbarring them from practice.

Ironically, the order dismissing them from service cited section 10(1) of the Bar Council Act 1926, authorizing the court to remove lawyers found guilty of misconduct. The same law also very clearly lays down the procedure for holding a tribunal to investigate misconduct prior to suspension or removal, including, in section 12(3), that the court shall inform the accused advocate of the date of hearing and "shall afford the advocate concerned... an opportunity of being heard before orders are passed in the case". None of that happened in this case.

I urge the authorities in Myanmar to review as a matter of urgency the revoking of these two lawyers' licences, with a view to reinstating them to the profession or at very least affording them the fair hearing to which they are undeniably entitled but have so far been denied.

Yours sincerely

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PLEASE SEND YOUR LETTERS TO:

1. Maj-Gen. Maung Oo
Minister for Home Affairs
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439

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

3. 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

4. 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

Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-062-2009
Countries :
Issues :
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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.