A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general
consultative status
BURMA: Targeting Of Defence Lawyers In Myanmar
1. In 2008 the authorities in Myanmar increasingly targeted defence lawyers as a means of quelling dissent not only
outside but also inside the criminal justice system itself. Although the law practiced in Myanmar is supposed to be
adversarial, apparently not content with already pre-arranging for the outcomes of many cases through the orders of
executive councils at all levels to trial judges, authorities also began taking action against defence lawyers who have
been causing them embarrassment simply because they have been trying to do their jobs according to law.
2. Towards the end of the year, at least six lawyers in Myanmar were accused of criminal offences because of their
attempts to defend clients whom the Government of Myanmar intended to imprison irrespective of the trial process. Out of
those six, the Asian Legal Resource Centre has closely documented the case of Supreme Court advocates U Aung Thein and U
Khin Maung Shein, who were imprisoned for four months on a charge of contempt of court in November 2008. A brief study
of the mechanics of the case and the means by which the two were imprisoned speaks to the extent to which the courts in
Myanmar are governed by what the former Special Rapporteur on the situation of human rights in Myanmar correctly
characterized as the “un-rule of law”:
a. U Aung Thein and U Khin Maung Shein are both lawyers of over 20 years experience in Burma. They have represented many
defendants in criminal cases arising from the protests of September 2007. Among them were five cases lodged against
three young men, Ko Htun Htun Oo, Ko Maung Maung Latt and Ko Aung Kyaw Moe, and one young woman, Ma Htar Htar Thet,
Felony Nos. 307-311/2008 before Judge Daw Aye Myaing of the Hlaing Township Court in Rangoon (Yangon). The hearings were
proceeding, like others from September 2007, in a special courtroom within the Insein Central Prison, under an order
from the Supreme Court.
b. At the hearing of 3 October 2008 the family members of the defendants were not allowed to enter the courtroom nor
leave food for them. Thereafter, at the hearing on October 6, Ko Htun Htun Oo, speaking on behalf of the four
defendants, informed the court that as the family members had been denied the right to attend the hearings and as the
defendants “no longer had faith in the judicial process” they had decided that they would no longer cooperate with the
court. They would refuse to be examined, give testimony, or cross-examine witnesses through their counsel. They also
would withdraw the power of attorney from the two lawyers at the next hearing. After he made this statement, the judge
instructed that the same be put to the court through the lawyers. U Aung Thein asked that the court record the same in
its record and U Khin Maung Shein did likewise. It was clear from this procedure that the withdrawal of power of
attorney was made through consultation of the clients with their advocates, in
c. At the hearing of October 13 U Khin Maung Shein appeared to inform the court that the submissions to withdraw power
of attorney had not yet been prepared. Thereafter he left the court.
d. On October 20 U Khin Maung Shein in the courtroom gave the submissions to withdraw power of attorney in the five
cases to the four defendants. They 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 in
paragraph 2 of the submissions to withdraw power of attorney that the defendants “no longer had faith in the judicial
process” had not been made orally at the earlier hearing. Two of the defendants, Ko Htun Htun Oo and Ko Aung Kyaw Moe,
both objected that they had said these words and they would again make a submission to the court to this effect. But
Judge Daw Aye Myaing said that, “It is too late. Don’t speak.”
e. 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. This Act consists only of this
provision for the term of punishment. It contains no criteria on what amounts to contempt of court. In the past, courts
in Myanmar (then Burma) had set some parameters and there was in general respect for the role of the attorneys and the
need to ensure that they could conduct their business without fear of intimidation or retribution; however, as the
present case reveals this provision exists in Myanmar today merely as one among many sticks that the authorities have
available with which to hit out at anyone whom they deem to be threatening their personal prestige or the position of
the state.
f. On 6 November 2008 the Supreme Court found the two advocates guilty of contempt of court and sentenced them to four
months’ imprisonment each. In a letter of appeal against the sentence, U Khin Maung Shein noted that in Judge Daw Aye
Myaing’s report of the proceedings of October 6, “After examination the defendants did not present any
cross-examination,” which supports the lawyers’ assertion that it was the clients’ loss of faith in the judicial process
as stated in the letter that caused this behaviour, not the lawyers’ own ideas. Furthermore, he observed that the
clients would not have signed the documents to withdraw power of attorney with the said words if they had not really
said them. This fact was even noted by the Supreme Court, which recorded that, “Although Daw Aye Myaing said that the
defendants did not know anything about this matter as their signatures are on the submissions this issue needs to be
examined for clarific ation.”
g. The wives of defendants Ko Htun Htun Oo and Ko Aung Kyaw Moe, Daw Khin Ma Win and Daw Win Maw Aye have also verified
that when they each visited their husbands in prison the defendants said that because the families had not been allowed
into the courtroom and because they no longer had faith in the judicial process they would withdraw power of attorney
from the two lawyers. The two wives wanted to submit affidavits to the court to this effect but had been denied the
opportunity.
h. Like defendants from last September 2007, the prison authorities have transferred the two lawyers to prisons remote
from their families, in the Ayeyarwaddy Division. U Aung Thein was sent to Pathein Prison; U Khin Maung Shein to the
Myaungmya Prison, further to the west. They were due for release on 7 March 2009.
3. Aside from criminal sanctions, there are many other methods that the authorities in Myanmar use to intimidate and
coerce lawyers in Myanmar today in order that they refrain from performing their jobs to the best of their ability and
the extent of the law. The ALRC has obtained a list of over 200 lawyers who in recent years have been suspended or
deregistered and are now unable to practice, many of them as a result of doing things that the authorities found
inimical to their interests. In a country with lawyers numbering in the thousands, this is a large percentage that
speaks to the attempts to contain and coerce the profession as a whole. The ALRC has followed a number of cases of
deregistration closely and is aware that the lawyers who have suffered this penalty have been informed by written
communication of what has happened to them and have been denied the opportunity to present a defence, although the law
allows for this.
4. In light of the above case and many others of its sort in Myanmar, some known to human rights groups abroad, many
others not, the Asian Legal Resource Centre makes a special call to the Human Rights Council for close attention to be
made to the situation of defence lawyers in Myanmar through the relevant Special Procedures, especially those on the
situation of human rights in Myanmar, the independence of judges and lawyers, and human rights defenders. In a legal
system where not only the defendants are wrongly accused and tried in violation of basic criminal law and procedure but
also their attorneys are targeted for retribution, the notion of protection of even the most basic human rights becomes
an absurdity. If the lawyers, let alone their clients, are not free from wanton persecution of the sort described in
this case then there is no prospect even for the formal application of law, let alone the realization of any of the
guarantees that it should otherwise offer. It is criti cal for the sake of the a
About ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative
status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human
Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights
issues at local and national levels throughout Asia.
ENDS