In a well-functioning legal system established under the rule of law, “there must be a recognized, organized and independent legal profession, which is legally empowered and willing to provide legal services.”22
Under the SPDC, lawyers like judges, do not enjoy effective freedom to perform their professional functions. There have been numerous instances of the military intimidating and harassing lawyers, including detaining, arresting and prosecuting a lawyer, or revoking his license on suspicion of his involvement in a politically motivated case. For example, lawyer Saw Kyaw Kyaw Min had been defending 11 clients, all members of the NLD. In late October 2008, a Rangoon court sentenced him to six months in prison under Section 228 of the Burmese Penal Code for contempt of court, forcing him to first spend weeks in hiding and then flee to Thailand. According to the Human Rights Watch report, Saw Kyaw Kyaw’s punishment was for failure to instruct his clients, on the judge’s order, to turn around after his clients turned their backs on the judge to protest the unfair way were being questioned by the prosecution. The report further stated that three other lawyers – Nyi Nyi Htwe, U Aung Thein, and U Khin Maung Shein – were arrested and sentenced to terms of four to six months in prison on the same charges.23
Particularly shocking is the SPDC’s record on retribution involving courageous attorneys who represent victims who suffered human rights abuses at the hands of members of the military, including sexual misconduct, forced labor and child soldiering. Often lawyers are threatened and even arrested for simply taking on such cases. In one such case, on January 19, 2009, lawyer Pho Phyu, who has represented political activists in the past, was arrested shortly after his dismissal by the authorities as defense lawyer for labor activists who were arrested after reporting a case of forced labor by local authorities to the International Labor Organization (“ ILO”). 24
During court proceedings, defense attorneys are usually forced to play a largely symbolic and sinister role in the administration of justice. Although they are permitted to call and cross-examine witnesses, their task is usually limited to striking a deal with the judge to obtain a lenient sentence for their client, often through state-sanctioned bribes. Lawyers who are not prepared to participate in the corrupt court system by paying bribes risk prosecution under the Contempt of Court Act for their alleged improper attitude towards the judges.
Due Process and Fair Trial Guarantees Are Ignored in Practice
Principle 2 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states:
Arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for that purpose.25
Under the SPDC and SLORC’s rule in Burma, however, these important principles of the rule of law are consistently ignored. Although there are concrete procedures for arrest and detention contained in the Burmese Criminal Procedure Code, these are frequently not followed in practice. The arrest and pre-trial detention process often includes arbitrary arrest by military personnel; prolonged interrogation accompanied by torture and ill-treatment; incommunicado pre-trial detention, and the denial of access to lawyers, families, and adequate medical care.
This pattern is particularly evident where persons are arrested on political grounds. Political prisoners are routinely held for periods longer than 24 hours without a warrant or special order from a magistrate, and do not have the opportunity to challenge the lawfulness of their detention before a court. It is common for suspects and detainees to receive no information concerning the charges against them or the legal provisions under which they are brought.
As stated previously, the unlawful detention process often involves the victims’ inability to challenge the legality of their detention with proper legal advice, even though the Judiciary Law Chapter IV, Article 5(f) states that the administration of justice in Burma will be based, in part, on “guaranteeing in all cases the right of defense.” For example, throughout the case of Suu Kyi lawyers are often denied access to courtrooms and in the case of human rights defender U Myint Aye and two co-accused, who were sentenced to life imprisonment for an alleged bombing plot, the first defendant was not represented in court despite his attempts to have a lawyer. His original counsel was also charged and imprisoned in a separate case. 26
Even in circumstances where detainees are permitted to contact a lawyer, widespread poverty and the absence of an effective legal aid system renders this right meaningless in practice. Thus, there is no right to a lawyer in Burma’s judicial system, and accused people are rarely able to obtain their advice and services before or during trial.
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