The Universal Declaration of Human Rights (1948) recognizes that: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” (Article- 10)
The SPDC currently uses the judiciary as a means of suppressing political dissent. Indeed, in a crackdown that started in October 2008, Burma’s courts have sentenced over 200 political and labor activists, internet bloggers, journalists, and Buddhist monks and nuns to lengthy jail terms.14 In 2009, the judiciary sentenced four political activists for the alleged “crimes” of wearing white clothes, calling for Buddhist prayers and organizing a letter-writing campaign to inform the generals of the plight of the people. As a result of their humanitarian actions, the activists had been tortured, spent a year of detention without charge, without access to family and lawyers, had a trial without representation (their lawyers were imprisoned for contempt for trying to represent them) and were sentences for hundreds of years of imprisonment for their supposed crimes. They are representative of thousands of other prisoners wrongfully and inhumanely detained by the Burmese junta.15
Judges Must Enforce SPDC Directives, Including Discriminatory Laws
In many instances, military authorities dictate verdicts in political cases, regardless of the evidence or the law. In addition, the existence of unjust laws--enacted to deprive citizens of universally recognized rights—further restricts the judiciary’s independence, because judges are required to interpret these laws in line with the military dictates by using fabricated evidence.
One such law is the 1975 State Protection Law, which allows the military to preemptively arrest and charge people for crimes that may “endanger the sovereignty and security of the state or public peace and tranquility”- even if they have not yet been committed. This provision has been frequently used by the courts to imprison political opponents of the military junta. For example, the renowned National League for Democracy (“NLD”) leader and Nobel Peace Prize laureate Suu Kyi was jailed in May 2003 under this arbitrary provision.
Another example is the 2004 Electronic Transaction Law, the purported aims of which are to support modernization, increase opportunities for development in various social sectors, and enable communication with international organizations, regional organizations, foreign countries, government departments. In reality, this law was promulgated by the SPDC in order to charge and sentence political opponents of the military. Specifically, Section 33 of this law outlines “Offences and Penalties” for the misuse of electronic transaction technology including:
(a) Doing any act detrimental to the security of the State or prevalence of law and order or community peace and tranquility or national solidarity or national economy or national culture;
(b) Receiving or sending and distributing any information relating to secrets of the security of the State or prevalence of law and order or community peace and tranquility or national solidarity or national economy or national culture.16
The utilization of the above provisions to prosecute political activists who simply use the internet or mobile phones has become routine. Recently, a supposed violation of this law was used to sentence prominent pro-democracy leader Min Ko Naing, Chairperson of the All Burma Federation of Student Unions and 88 Generation Students group, and nearly forty other dissidents to sixty-five years in prison.17 Similarly, in early January 2009, NLD Chairman Min Aung was sentenced to an additional 15 years of prison under the same act.18
Under Section 505(b) of the archaic Burmese Penal Code, people can be charged for any statement, rumor, or report made “with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility”.19 The junta has used this law to repress and punish those taking part in free expression, peaceful demonstrations, and forming organizations,20 Most notably, Section 505(b) was used in-part to charge U Gambira, leader of the All Burma Monks’ Alliance and key activist in the 2007 Saffron Revolution – a peaceful protest – with a total of 68 years in prison.21
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