Tuesday, 13 September 2011 14:17 Leslie Choi and U Myo
(Commentary) – While the Burmese government touts its new-found commitment to human rights principles and justice, it continues to wage a campaign of harassment against Burma's human rights lawyers. In this environment, the resolution of disputes through legal avenues is seen not only as ineffective but as posing a threat to the safety of lawyers and clients alike.
Last month, the Union Supreme Court revoked the license of lawyer Tin Tun Aung, a member of the National League for Democracy (NLD) Lawyers’ Network. Tin Tun Aung is known for defending farmers asserting their property rights in land confiscation cases. The government order cited Section 13(f) of The Legal Practitioners Act as grounds for revoking his license. This overly broad provision permits the High Court to strip any lawyer of his or her license after an inquiry for any “reasonable cause.” The findings of the inquiry were not disclosed.
The impartiality of the decision to revoke Tin Tun Aung's license is questionable given the background of the decision-makers. An inquiry into lawyer misconduct is made by members of the Bar Council, who are selected by the ruling Union Solidarity and Development Party and act in accordance with the regime's political objectives. This is in direct contradiction to the 1995 Beijing Statement of Principles of the Independence of the Judiciary, which highlights the fundamental importance of impartiality in the appointment of judges and administration of law.
While Burmese Chief Justice U Aung Toe signed this statement of principles, he has subsequently failed to implement changes in the judicial structure to provide protections for lawyers.
Tin Tun Aung is not alone in his struggle as a lawyer practicing in Burma. His case is just one of many showing a clear pattern of harassment against lawyers defending clients in cases where government interests are at stake. Also facing persecution is a group of National League for Democracy lawyers who are seeking to have their licenses reinstated after they were revoked for contempt of court.
Laws are applied arbitrarily to intimidate lawyers who are identified with their clients' causes. Lawyers who allegedly violate these laws can face time in prison. The Assistance Association for Political Prisoners-Burma (AAPP-B) reports at least 12 jailed lawyers who were sentenced arbitrarily for their work defending human rights. The risk of losing the license to practice law and potential imprisonment serve as strong deterrents for lawyers considering defending clients involved in sensitive cases.
The government is also using the Burmese intelligence apparatus to monitor lawyers defending human rights cases. Exiled human rights lawyer Saw Kyaw Kyaw Min says he was followed by members of the Special Branch. “The Special Branch came to my house when I was not there and asked my landlord many questions about my work. He did not want to rent to me anymore. Also, when my civil clients came to my house to discuss their cases, they saw the Special Branch and were too afraid to ask me to represent them.”
Indeed, clients are often targeted directly for intimidation. Lawyers have reported that in human rights cases, government representatives have threatened clients' families and advised them not to retain legal counsel. Such intimidation tactics prevent clients from obtaining adequate representation and further obstruct the administration of justice.
Procedural obstacles also impede the ability of lawyers to defend their clients. Lawyers are frequently denied meetings with clients, not allowed to meet with clients in private, and forbidden from making oral arguments in court. During the trial of Phyo Wai Aung, a suspect in the X20 pavilion bombing in April 2010, his lawyer faced numerous challenges to mounting a proper defence. His lawyer was denied access to his client immediately after the arrest and was also denied access to his client's case file. Furthermore, he was not permitted to cross-examine a key prosecution witness. While Phyo Wai Aung was not himself a political activist, he associated with political activists and associations.
These procedural restrictions are in violation of international legal standards and domestic criminal and constitutional law. Further compounding the difficulty in obtaining a fair trial, many trials, particularly those of a political nature, are held in closed courts. This severely limits the accountability of the judicial system.
This combination of harassment and lack of accountability not only stifles lawyers but also denies citizens a meaningful avenue to obtain justice. The independence of lawyers is recognized under international law as an important safeguard of the judiciary and as an essential means of protecting human rights. The right to a fair trial is only secure when lawyers are permitted to carry out their professional responsibilities without interference.
Despite the government’s stated commitment to the rule of law, restrictions on the legal profession continue unabated.
According to Ko Bo Kyi, joint-secretary of AAPP-B: “Thein Sein's absolute disinterest in genuine democratic reform is evident in the ongoing harassment and imprisonment of lawyers who expose human rights violations and challenge the crippled legal system. These latest arrests and revoking of licenses, while gross violations of international legal norms, are nothing new, and show that the last vestiges of the rule of law will continue to be destroyed under this so-called democracy.”
The regime’s recent formation of the Myanmar Human Rights Commission indicates increased concern for its human rights record in the eyes of the international community. This type of gesture only has value when backed by concrete action demonstrating a true commitment to human rights and rule of law. The immediate release of jailed lawyers and the restoration of licenses revoked arbitrarily would show the regime is truly interested in justice – and not merely window dressing.
(Commentary) – While the Burmese government touts its new-found commitment to human rights principles and justice, it continues to wage a campaign of harassment against Burma's human rights lawyers. In this environment, the resolution of disputes through legal avenues is seen not only as ineffective but as posing a threat to the safety of lawyers and clients alike.
Last month, the Union Supreme Court revoked the license of lawyer Tin Tun Aung, a member of the National League for Democracy (NLD) Lawyers’ Network. Tin Tun Aung is known for defending farmers asserting their property rights in land confiscation cases. The government order cited Section 13(f) of The Legal Practitioners Act as grounds for revoking his license. This overly broad provision permits the High Court to strip any lawyer of his or her license after an inquiry for any “reasonable cause.” The findings of the inquiry were not disclosed.
The impartiality of the decision to revoke Tin Tun Aung's license is questionable given the background of the decision-makers. An inquiry into lawyer misconduct is made by members of the Bar Council, who are selected by the ruling Union Solidarity and Development Party and act in accordance with the regime's political objectives. This is in direct contradiction to the 1995 Beijing Statement of Principles of the Independence of the Judiciary, which highlights the fundamental importance of impartiality in the appointment of judges and administration of law.
While Burmese Chief Justice U Aung Toe signed this statement of principles, he has subsequently failed to implement changes in the judicial structure to provide protections for lawyers.
Tin Tun Aung is not alone in his struggle as a lawyer practicing in Burma. His case is just one of many showing a clear pattern of harassment against lawyers defending clients in cases where government interests are at stake. Also facing persecution is a group of National League for Democracy lawyers who are seeking to have their licenses reinstated after they were revoked for contempt of court.
Laws are applied arbitrarily to intimidate lawyers who are identified with their clients' causes. Lawyers who allegedly violate these laws can face time in prison. The Assistance Association for Political Prisoners-Burma (AAPP-B) reports at least 12 jailed lawyers who were sentenced arbitrarily for their work defending human rights. The risk of losing the license to practice law and potential imprisonment serve as strong deterrents for lawyers considering defending clients involved in sensitive cases.
The government is also using the Burmese intelligence apparatus to monitor lawyers defending human rights cases. Exiled human rights lawyer Saw Kyaw Kyaw Min says he was followed by members of the Special Branch. “The Special Branch came to my house when I was not there and asked my landlord many questions about my work. He did not want to rent to me anymore. Also, when my civil clients came to my house to discuss their cases, they saw the Special Branch and were too afraid to ask me to represent them.”
Indeed, clients are often targeted directly for intimidation. Lawyers have reported that in human rights cases, government representatives have threatened clients' families and advised them not to retain legal counsel. Such intimidation tactics prevent clients from obtaining adequate representation and further obstruct the administration of justice.
Procedural obstacles also impede the ability of lawyers to defend their clients. Lawyers are frequently denied meetings with clients, not allowed to meet with clients in private, and forbidden from making oral arguments in court. During the trial of Phyo Wai Aung, a suspect in the X20 pavilion bombing in April 2010, his lawyer faced numerous challenges to mounting a proper defence. His lawyer was denied access to his client immediately after the arrest and was also denied access to his client's case file. Furthermore, he was not permitted to cross-examine a key prosecution witness. While Phyo Wai Aung was not himself a political activist, he associated with political activists and associations.
These procedural restrictions are in violation of international legal standards and domestic criminal and constitutional law. Further compounding the difficulty in obtaining a fair trial, many trials, particularly those of a political nature, are held in closed courts. This severely limits the accountability of the judicial system.
This combination of harassment and lack of accountability not only stifles lawyers but also denies citizens a meaningful avenue to obtain justice. The independence of lawyers is recognized under international law as an important safeguard of the judiciary and as an essential means of protecting human rights. The right to a fair trial is only secure when lawyers are permitted to carry out their professional responsibilities without interference.
Despite the government’s stated commitment to the rule of law, restrictions on the legal profession continue unabated.
According to Ko Bo Kyi, joint-secretary of AAPP-B: “Thein Sein's absolute disinterest in genuine democratic reform is evident in the ongoing harassment and imprisonment of lawyers who expose human rights violations and challenge the crippled legal system. These latest arrests and revoking of licenses, while gross violations of international legal norms, are nothing new, and show that the last vestiges of the rule of law will continue to be destroyed under this so-called democracy.”
The regime’s recent formation of the Myanmar Human Rights Commission indicates increased concern for its human rights record in the eyes of the international community. This type of gesture only has value when backed by concrete action demonstrating a true commitment to human rights and rule of law. The immediate release of jailed lawyers and the restoration of licenses revoked arbitrarily would show the regime is truly interested in justice – and not merely window dressing.
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