Burma Desk, Asian Human Rights Commission, Hong Kong
Half a century of one form of direct or indirect military rule has resulted in a massively dysfunctional justice system in Burma. Despite this situation, many lawyers in Burma take a strong interest in social causes, and some in political ones. Many undertake their day-to-day professional tasks with eyes towards larger goals for societal change. However, because the legal system through which they must work has deteriorated dramatically over the last half century, it no longer has power to intervene in major events or affairs. It has lost significance in the public imagination and has become profoundly dysfunctional.
The prospect of reprisals for undertaking their ordinary professional activities is one that acutely affects the work of lawyers in Burma and speaks to the overall decline in formal legality and rise in systemic dysfunction. The very first item on the code of conduct for lawyers appearing before court is a warning not to engage in any behaviour that may constitute contempt. Once a lawyer has been convicted for contempt, or for practically any other purported infraction, he can be disbarred. In 1993 the former secretary-1 of the now defunct military junta, Lt-Gen. Khin Nyunt, listed some reasons for disbarment as including “criminal cases involving traitorous rebellion, violation of provisions in the Unlawful Associations [Act], sedition against the national government, insulting judges and interference with the judiciary, cheating and swindling, fabrication of records, bribery, exchange of foreign currency, violation of regulatory law, etc.” A complete list of reasons for disbarment would presumably be considerably longer.
The threat of losing one’s professional privileges on a trivial allegation of contempt or for some other breach of rules ensures that most lawyers do as they are told, and avoid cases that will cause them difficulties. A few do otherwise, and take on cases that lead them into conflicts with judges. These include prominent cause lawyers like U Aung Thein and U Khin Maung Shein, who in 2008 were defending four persons charged over the anti-government protests of the year before. One of the accused informed the court that as they “no longer had faith in the judiciary” they wished to withdraw the power of attorney given to the two advocates. The judge instructed that the reason for withdrawal of power of attorney be put in writing and submitted through the defence counsel. When the lawyers followed her instruction, she accused them themselves of making up the statement, and lodged a complaint for contempt. Neither lawyer was invited to a hearing. Aung Thein said he learned that he had been sentenced to four months in prison while at home one day after the application against him and his colleague had been lodged. Neither lawyer had an opportunity to see the verdict prior to imprisonment. After release, each received a perfunctory notice informing him that his licence to practice had been revoked. Again, neither was offered a chance to make a defence, despite legal provisions to the contrary.
A number of cause lawyers who have collaborated with the International Labour Organisation on forced labour and land confiscation issues also have lost their licences. U Aye Myint in 2005 received seven years in jail under section 5(e) of the Emergency Provisions Act, 1950 for spreading “false” news about army confiscation of pastureland. Thanks to ILO pressure he was released from prison, but had his licence revoked. Ko Phoe Phyu received four years in prison in 2009 under section 6 of the Organization Law, 1988 for having set up an unregistered lawyers’ group with six colleagues, which the judge described as having as its stated objective the defence of justice and human rights through legal means but in fact having as its purpose the making of seditious statements in the courts via cases in which its members were appearing. He too was released following ILO pressure, and within a week received a letter notifying him that the Supreme Court had suspended his licence.
Aung Thein
In November 2011, 16 of these lawyers who have had licences revoked wrote to the president of Burma on their own behalf, and that of another 16 of their peers, to seek the renewal of their licences. In their letter, the lawyers pointed out that their licences were unilaterally revoked not in accordance with the terms of the Bar Council Act, whereby they have a right to make a defence against revocation of the licence. Many of them also received harsh prison terms, some from military tribunals. They note that in the current period, the president has met with Daw Aung San Suu Kyi and both sides are concerned with dialogue for national reconciliation, a process that the lawyers also strongly support. They argue, therefore, that a review of the revocation of their licences is in the current period appropriate, in order to further the process of political reform and progress towards national reconciliation.
Ko Phoe Phyu
The lawyers have requested international support for their petition. Accordingly, on 22 December 2011 the Asian Legal Resource Centre submitted a letter in support of the lawyers’ petition to the Chief Justice of the Supreme Court, which has final authority on the revocation or suspension of lawyers’ licences. In that letter, Wong Kai Shing, the director of the Asian Legal Resource Centre, wrote that,
Each of these 32 lawyers did no more than freely represent their political opinions in accordance with the law. A number of them did no more than practice their profession in accordance with the relevant codes of conduct. Most of them did not get any opportunity to represent themselves prior to the removal of their licences, as required under the terms of the Bar Council Act, the Legal Practitioners Act and the Courts Manual, but were simply informed about the revocation of licence via letter.
In light of the unjust circumstances under which the licences of these lawyers were revoked, their shared concern for the upholding of the rule of law through professional practice, and given the changed political circumstances in Myanmar of the last year, we ask that the Supreme Court seek a review of the decisions to revoke the licences of each one of these 32 lawyers, and others in similar circumstances, with a view to restoring them their professional qualifications.
In this regard, we note in the state media of 3 October 2011 the Attorney General of Myanmar, Dr. Tun Shin, did inform the parliament that the Bar Council is authorized to review cases were licences have been revoked and make submissions to the Supreme Court on the same. We urge that in each of the cases of the lawyers listed below, that process now take place in order that they are again able to earn their livelihoods and also contribute towards the development of their country at this vitally important time.
After issuing the open letter, the ALRC also issued a special worldwide appeal, including to the International Bar Association, International Commission of Jurists and UN Special Rapporteur on the Independence of Judges and Lawyers, in support of the lawyers. In the appeal, the ALRC called for letters of support from professional bodies, particularly those with international mandates, and those in the region. Letters of support for these lawyers can be sent directly to the chief justice at the following address:
U Tun Tun Oo
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
The letter need not be long, but should be explicit in its support for the rights of these lawyers in Burma whose licences were removed from them for their simple expression of political views, or for no more than the defence of persons accused of political offences. We are particularly interested to get the support for these lawyers from their counterparts in professional groups around the world, because we are confident that these will have a strong effect both as a source of encouragement for the lawyers and also as an impetus for the professional bodies concerned in Burma, or Myanmar, to review their cases. Groups not wanting to draft their own letters can use the following template:
Dear Chief Justice
MYANMAR: Appeal to review cases of 32 lawyers disbarred for political reasons
We are writing to you further to a letter submitted to the President of Myanmar dated 4 November 2011 by 16 lawyers who were disbarred because of alleged political crimes or politically related violations of their codes of practice.
According to the 16 lawyers, they had their licences revoked unfairly and unlawfully, inasmuch as the revocations were not done in accordance with correct procedure and were motivated not in response to breaches of professional codes of conduct but because of dissatisfaction of the authorities with their political activities, or efforts to defend the rights of persons accused in political cases.
These 16 lawyers constitute half of a total of 32 lawyers in an enclosed list who have had their licences to practice revoked for political reasons. They include 25 advocates licenced to appear before the Supreme Court, including three women advocates; and, seven Higher Grade Pleaders, licenced to appear before lower courts, including one female pleader. A list of the 32 lawyers follows. We believe that there will be other lawyers aside from these 32 in the same situation of having had their licences revoked for political reasons, many having spent periods in jail.
We ask that the Supreme Court review of the decisions to revoke the licences of each one of these 32 lawyers, and others in similar circumstances, with a view to restoring them their professional qualifications, so that they are again able to earn their livelihoods and also contribute towards the development of their country at this vitally important time.
Yours sincerely
[Signed]
SUPREME COURT ADVOCATES (licence numbers in brackets)
1. U Aye Myint (4377) 2. U Myint Than (2639) 3. U Har Mar Nyunt (1756) 4. U Myint Htay (1827) 5. U Khin Maung Thein (2694) 6. U Thaung Myint 7. Daw Khin San Hlaing (4203) 8. U Kyi Win (1506) 9. U Htay (3860) 10. U Khin Maung Thant (1784) 11. U Thein Than Oo (3695) 12. U Sein Nyo Tun (3978) 13. U Aung Thein (2703) 14. U Khin Maung Shein (4660) 15. U Robert Sann Aung (2469) 16. U Saw Hlaing (4666) 17. Daw Tin Htwe Mu (1447) 18. U Saw Htun (2791) 19. U Htun Htun Han 20. Thura U Tin Oo 21. U San Ni Tin Pe 22. U Aye Myint (Guiding Star) (4821) 23. U Myat Hla (1154) 24. Daw Hla Myint 25. “BBC” U Ne Min (2090)
HIGHER GRADE PLEADERS (licence numbers in brackets)
1. Daw Ohn Kyi (6764) 2. U Aung Kyi Nyunt (3710) 3. U Htun Oo (11942) 4. U Nyi Nyi Htwe (24702)
Professional groups sending letters can send copies to the Burma Desk of the AHRC at the address found on the back of this edition of article 2 or scan and send them to burma@ahrc.asia. So far we have received copies or details of letters sent from professional groups in Australia, Canada, France, Korea and Nepal. Further inquiries can also be directed to the desk through that email address.
Below we reproduce the list of 32 lawyers with summations of their cases and links to sites for further details, where available, which the ALRC submitted to the chief justice with its open letter. Note that since the time of sending the letter at least two more lawyers have lost licences for representing clients in cases that ran contrary to state interests.
List of 32 lawyers in Burma known to have been imprisoned previously and to have had licences revoked for political reasons
1. U Aye Myint
Supreme Court Advocate, licence number 4377
Town of residence: Kale
Court: Mandalay Division Military Tribunal Number 3
Sentence: Death penalty
Decision date: 21 September 1989
Release date: December 1997
Revocation of licence: 2 May 2000
Brief summary of the case
Served as the chairperson of National League for Democracy (NLD) in Kale Township. In 1988, during the time of uprising, the whole general strike committee was given punishment over the death of U Thaung Aye, a Township People’s Council member.
2. U Myint Than
Supreme Court Advocate, Licence number 2639
Town of residence: Shwebo
Court: Mandalay Division Military Tribunal Number 4
Sentence: Death penalty
Decision date: September 1989
Release date: December 1997
Revocation of licence: 1989
Signatory of letter to president
Brief summary of the case
In 1988 he was running a strike committee in Shwebo. He was accused in a murder case arising out of events in 1988 and punished under the Emergency Provisions Act, 1950, section 5.
3. U Har Mar Nyunt
Supreme Court Advocate, Licence number 1756
Town of residence: Kyaukse
Court: Mandalay Division Military Tribunal Number 2
Sentence: 13 years imprisonment
Decision date: 22 December 1989
Release date: 26 March 1995
Revocation of licence: 23 January 1996 (Supreme Court Order No. 1/96)
Signatory of letter to president
Brief summary of the case
During the 1988 uprising, he was secretary of the strike committee in Kyaukse. Soon after he was punished under the Public Property Protection Act, 1947, section 3.
4. U Myint Htay
Supreme Court Advocate, Licence number 1827
Town of residence: Thazi
Court: Meiktila Military Tribunal Number 10
Sentence: 5 years imprisonment
Decision date: 23 December 1989
Revocation of licence: 23 April 2003 (Supreme Court Order No.63/ 2003)
Signatory of letter to president
Brief summary of the case
Working as the secretary in a strike committee at the time of the 1988 uprising, he was accused in connection with the takeover of the ruling Burma Socialist Programme Party office in Thazi Township, and the office of the Lanzin Youth (party youth wing). He was sentenced under the Penal Code, sections 452/447/427.
5. U Khin Maung Thein
Supreme Court Advocate, Licence Number 2694
6. U Thaung Myint
Supreme Court Advocate
Town of residence: Thazi
Court: Yangon Division Military Tribunal Number 1
Sentence: 25 years imprisonment
Decision date: 30 April 1991
Release date: 4 May 1992
Revocation of licence: 1993
Brief summary of the case
In 1990, these two lawyers were elected to the parliament as representatives of the National League for Democracy (NLD) in Khin Oo constituency. Both were given life imprisonment under the Penal Code, section 122, for treason, but in 1991 were released.
7. Daw Khin San Hlaing
Supreme Court Advocate, Licence number 4203
Town of residence: Wetlet
Court: Yangon Division Military Tribunal Number 1
Sentence: 25 years imprisonment
Decision date: 30 April 1991
Release date: 4 May 1992
Revocation of licence: 1999
Brief summary of the case
She was elected to parliament as the NLD representative in Wetlet Township constituency during the 1990 election, convicted of treason but subsequently released. She lost her licence for organizing NLD members.
8. U Kyi Win
Supreme Court Advocate, Licence number 1506
Town of residence: Labutta
Court: Myaung Mya District Court
Sentence: 2 years imprisonment
Decision date: August 1999
Release date: July, 2011
Revocation of licence: August 1990
Signatory of letter to president
Brief summary of the case
From the central committee of the NLD, he was elected as parliamentary representative for Labutta constituency 1 and convicted of upsetting public tranquility under the Penal Code, section 505(b).
9. U Htay
Supreme Court Advocate, Licence number 3860
Town of residence: Pyapon
Court: Pyapon Township Court
Sentence: 7 years imprisonment
Decision date: March 1993
Release date: 1998
Revocation of licence: 2000
Brief summary of the case
Advocating for farmers whose lands were forcibly seized by the state in Pyapon, he was given 7 years in prison under the 1950 Emergency Provisions Act, section 5.
10. U Khin Maung Thant
Supreme Court Advocate, Licence number 1784
Town of residence: Mandalay
Court: Mandalay Division Military Tribunal Number 4
Sentence: 10 years imprisonment
Decision date: 5 February 1990
Release date: 2 February 2001
Revocation of licence: 26 September 2001 (Supreme Court Order No. 97/2001)
Signatory of letter to president
Brief summary of the case
Serving as the vice–chairperson of the National Political Front (NPF), being involved in the National Industrial Safety Committee (NISC) and he was given a penalty under the 1950 Emergency Provisions Act, section 5(j).
11. U Thein Than Oo
Supreme Court Advocate, Licence number 3695
Town of residence: Mandalay
Court: Mandalay Division Military Tribunal Number 4
Sentence: 14 years imprisonment
Decision date: 5 February 1991
Release date: 2 February 2001
Revocation of licence: 26 September 2001 (Supreme Court Order No. 97/2001)
Signatory of letter to president
Brief summary of the case
He was given punishment for serving as the second secretary of the NPF and secretary of the NISC, for unlawful publication of printed materials and for distribution of cassettes threatening the integrity of the armed forces for which he was convicted under the Emergency Provisions Act, section 5(j).
12. U Sein Nyo Tun
Supreme Court Advocate, Licence number 3978
Town of residence: Mandalay
Court: Mandalay Division Military Tribunal Number 4
Sentence: 7 years imprisonment
Decision date: 5 February 1991
Release date: 1995
Revocation of licence: 26 September 2001 (Supreme Court Order No. 97/2001)
Signatory of letter to president
13. U Aung Thein
Supreme Court Advocate, Licence number 2703
14. U Khin Maung Shein
Supreme Court Advocate, Licence number 4660
Town of residence: Yangon
Court: Supreme Court
Sentence: 4 months imprisonment
Decision date: 7 November 2008
Release date: 7 March 2009
Revocation of licence: 15 May 2009 (Supreme Court Order No. 46/2009)
Signatories of letter to president
Brief summary of the case
U Aung Thein was working and serving in the NLD main office as deputy chairman of the Central Legal Committee, which was giving legal assistance and advocating in political cases; U Khin Maung Shein was volunteering with the committee part time. In 2008, they were representing clients in political cases heard in the special courts inside Insein Central Prison They were given prison terms for contempt of court. Two months after release from prison both had licences revoked by the Supreme Court under the Bar Council Act, section 10(1).
Full details of case: http://campaigns.ahrchk.net/burma-lawyers/
15. U Robert Sann Aung
Supreme Court Advocate, Licence number 2469
Town of residence: Yangon
Court: Insein Prison Special Court
Sentences: 7 years imprisonment; 2 years and 6 months
Decision dates: 11 April 1997; 20 November 2008
Release date: 17 December 2010
Revocation of licence: 1 January 1993
Signatory of letter to president
Brief summary of the case
He has been imprisoned approximately six times in total.
16. U Saw Hlaing
Supreme Court Advocate, Licence number 4666
Town of residence: Indaw
Court: Military Tribunal
Sentence: 25 years imprisonment
Decision date: 1991
Release dates: 27 May 1992; 12 November 2001
Revocation of licence: 1991
Signatory of letter to president
Brief summary of the case
He was elected to parliament as a representative for NLD in the 1990 election. Afterwards, he was sentenced under the Emergency Provisions Act, section 5(j); and the Printers and Publishers Registration Law, section 16/20. He has been imprisoned four times in total.
17. Daw Ohn Kyi
Higher Grade Pleader, Licence number 6764
Town of residence: Meiktila
Court: Yangon Division Military Tribunal Number 1
Sentence: 25 years imprisonment
Decision date: 30 April 1991
Release date: 4 May 1992
Revocation of licence: 1993
Brief summary of the case
She was elected to parliament for the seat of Meiktila in the 1990 election, and subsequently charged with treason under the Penal Code, section 122.
18. U Aung Kyi Nyunt
Higher Grade Pleader, Licence number 3710
Town of residence: Chaungzon
Court: Chaungzon Township Court
Sentence: 2 years imprisonment
Decision date: December 1990
Release date: 10 April 1992
Revocation of licence: September 1992
Brief summary of the case
Elected to parliament in 1990 for the NLD, in Chaungzon constituency, Mon State.
19. U Htun Oo
Higher Grade Pleader, Licence number 11942
Town of residence: Yangon
Court: Yangon Division Military Tribunal Number 1
Sentence: Life imprisonment
Decision date: 1 November 1989
Release date: 2 November 1999
Revocation of licence: 1989
Signatory of letter to president
Brief summary of the case
Penalized for attempting to bring down the state over his part in the 1988 protests.
20. U Nyi Nyi Htwe
Higher Grade Pleader, Licence number 24702
21. Saw Kyaw Kyaw Min
Higher Grade Pleader, Licence number 28261
Town of residence: Yangon
Court: Yangon Western District Court
Sentence: 6 months imprisonment
Decision date: 30 November 2008
Release date: 2009; absconded
Revocation of licence: mid 2010
Nyi Nyi Htwe signatory of letter to president
Brief summary of the case
Convicted under the Penal Code, section 228, for allegedly failing to comply with a judge’s instructions over a protest action by clients in a political case arising out of the 2007 demonstrations; Saw Kyaw Kyaw Min absconded and fled to Thailand before the sentence was passed.
Further information: http://www.humanrights.asia/news/forwarded-news/AHRC-FPR-032-2008/
22. U Tin Aung Tun
Higher Grade Pleader, Licence number 21483
Town of residence: Minbu
Revocation of licence: 2011
Signatory of letter to president
Brief summary of the case
He was assisting farmers in their legal claims against land grabbers in Kanma Township when his licence was revoked without reason. Not imprisoned.
23. Daw Tin Htwe Mu
Supreme Court Advocate, Licence number 1447
Town of residence: Yangon
Court: Mawlamyinegyun Military Tribunal
Sentence: 5 years imprisonment
Decision date: 1990
Release date: 1995
Revocation of licence: 1995
Signatory of letter to president
Brief summary of the case
The daughter of Thakin Ba Thein Tin, a leader of the Burma Communist Party, she was put behind bars under the 1950 Emergency Provisions Act.
24. U Saw Htun
Supreme Court Advocate, Licence number 2791
Town of residence: Monywa
Court: Monywa Township Court
Sentence: 2 years imprisonment
Decision date: 2 June 2003
Release date: 29 May 2004
Revocation of licence: 10 December 2003
Brief summary of the case
While he was volunteering as a member of the NLD legal aid support group in his township, he put up an NLD signboard, whereupon he was detained and charged under the Penal Code, section 505(b) with upsetting public tranquility.
25. U Htun Htun Hein
Supreme Court Advocate
Town of residence: Naungcho
Court: Naungcho Township Court
Sentence: 21 days
Decision date: March 1989
Release date: June 1989
Revocation of licence: December 1992
Brief summary of the case
He was elected as parliamentary representative for the NLD in Naungcho Township. In 1992, he participated in the National Convention to prepare drafting of a new constitution. Also he has been part of the NLD legal aid central committee.
26. Thura U Tin Oo
Supreme Court Advocate
Town of residence: Yangon
Court: Military tribunal
Sentence: 7 years imprisonment
Brief summary of the case
NLD deputy chairperson; tried for treason; imprisoned and licence revoked.
27. U San Ni Tin Pe
Supreme Court Advocate
Town of residence: Yangon
Court: Military tribunal
Sentence: Life imprisonment
Decision date: 1988
Brief summary of the case
Imprisoned for his involvement in a strike committee during 1988.
28. Ko Phoe Phyu (a.k.a.) Yan Naing Aung
Higher Grade Pleader, Licence number 23815
Town of residence: Yangon
Court: Aunglan Township Court
Sentence: 4 years imprisonment
Decision date: 17 March 2009
Release date: March 2010
Revocation of licence: 11 March 2010
Brief summary of the case
Around May 2008 he worked through a young lawyers group to give legal aid to clients being tried in the Insein Central Prison. He was accused of forming an illegal organization under the Organisation Law 1988 while working through his Youth Lawyers Group to represent farmers whose lands had been seized from them.
Further information: http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-032-2010
29. U Aye Myint
Supreme Court Advocate, Licence number 4821
Town of residence: Bago
Court: Daik-U Township Court
Sentence: 7 years imprisonment
Decision date: 31 October 2005
Release date: 2006
Revocation of licence: 12 May 2006 (Supreme Court Order No. 40/2006)
Signatory of letter to president
Brief summary of the case
Imprisoned under the 1950 Emergency Provisions Act, section 5(e), over cases of forced labour in which he was assisting farmers through his Guiding Star group. Released due to pressure from the International Labour Organisation.
Further information: http://www.humanrights.asia/news/urgent-appeals/UA-119-2006/
http://www.humanrights.asia/news/urgent-appeals/UP-125-2006
30. U Myat Hla
Supreme Court Advocate, Licence number 1154
31. Daw Hla Myint
Supreme Court Advocate
Town of residence: Bago
Court: Bago Township Court
Sentence: Acquitted
Decision date: 1994
Revocation of licence: 1992
Brief summary of the case
In the 1990 election U Myat Hla was chosen as parliamentary representative from Bago constituency 2. He was the chairman of the Bago NLD also, and president of the Bar Association in Bago. A client brought a politically motivated complaint against him and Daw Hla Myint for alleged malpractice. Although the case was dismissed, their licences have remained revoked.
32. “BBC” U Ne Min
Supreme Court Advocate, Licence number 2090
Town of residence: Yangon
Court: Insein Prison Special Court
Sentence: 35 years imprisonment
Decision date: 21 October 1988; 2003
Release date; 1996; 2011
Revocation of licence: 1989
Brief summary of case
Charged under the Unlawful Associations Act, section 17(1)(2), the Emergency Provisions Act, section 5(j) and the Official Secrets Act, section 10 for having unauthorized possession of a telephone and for involvement in the protests in 1988, including contact with a BBC reporter, and subsequent political activities. Imprisoned twice for eight years. Licence revoked before first conviction.
