address of U Tin Oo sent to Intern

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Address of U Tin U
Chairman or the Central Legal Committee of the National League for Democracy



Mr. Chairman and fellow delegates:

May I, on behalf of the Central Legal Committee of the National League for Democracy, say what a pleasure and an honour it is to have this opportunity to send a message to the annual meeting of the International Bar Association. I would like to congratulate you, Mr. Chairman, on taking the chair at this meeting of legal experts from all over the world.  Through you. may I send my warm greetings to fellow legal practitioners and other delegates to this conference who will be using their knowledge and expertise to strengthen the rule of law and to find means of ensuring that people the world over are guaranteed their fundamental right to liberty, justice and equality.

I would personally like to thank the Honorable Miss Janelle Saffin, Member of the Legislative Council of the New South Wales parliament, Australia, for making it possible for me to present a statement to this meeting. I hope that through this statement I shall be able to contribute towards a better understanding of the sorry state of the rule of law, judicial independence and human fights in Burma today.

As Chairman of the Central Legal Committee of the National League for Democracy, the political party that received the unequivocal mandate of the people in the only democratic elections held in Burma within the last thirty seven years, I have a duty to inform you of the malfunction of the rule of law, of the repeated violation of human rights and of official practices detrimental to the independence of the judiciary.  The people of Burma are by nature law abiding, peace loving and gentle but under the present military government, known as the State Law and Order Restoration Council
or SLORC, they have been subjected to deplorable treatment.

Mr. Chairman, the present military regime took power in 1988 after a ruthless suppression of a nationwide pro-democracy uprising.  After two years of rule by martial law a general election was held.  The National League for Democracy won an overwhelming eighty-two per cent of the parliamentary seats contested.  Now after more than seven years, the results of the elections remains unacknowledged by the military government which continues to rule the country through arbitrary and draconian ordinances and laws,.

SLORC promulgated a judicial law, 2/88, which sought to create a new hierarchy of civilian courts.  Although the new law contained formal guarantees of independence for those courts, in practice they are subjected to tight control by the authorities at all times.  Judges do not enjoy tenure and are under clear instructions to take the lead from the military authorities in the discharge of their functions.  Thus although martial law courts have been abolished, political prisoners still do not receive fair trials.  As has already been noted in the 1991 report of the International Commission of Jurists, most cases are tried in an arbitrary manner and verdicts are determined in advance of the trials.  The administration of justice at present has become a casualty of the military regime.  Not only are democratic activists charged, unjustly under various laws and military decrees and denied fair trials and due process of law, the judicial system has been emasculated over the years. Cour
t proceedings are not open to the	public and defendants are very seldom allowed access to counsel. Moreover,
they are presumed guilty in advance and not given a fair chance to prove their innocence. There is no effective right of appeal to an independent higher forum due to the systematic interference of the military intelligence authorities.  There has not yet been a single case where a political prisoner has been acquitted or given a lesser sentence by higher courts.  Trials are a mere mockery of justice and punishments are far in excess of the so-called crimes.  Moreover,, most of the legal action taken against political prisoners falls into the ultra vires category,

Mr. Chairman, members, supporters and sympathizers of the National League for Democracy are kept under close surveillance as though they were habitual offenders.  Intimidation, harassment, oppression, violation of basic rights and perpetual persecution are daily fare for us. Legitimate, democratic activities are deemed to be against the law. Political prisoners are detained for indefinite periods before charges are brought against them and they are not given the dignity of a proper trial.  They are kept in unhygenic, crowded cells Without adequate water or food and medical care is almost non-existent.  Due to lack of required treatment, the spread of HIV in the prisons is alarming.  There have already been a number of deaths and all prisoners can be said to be endangered to some degree.  Worst of all, political prisoners are at times beaten and tortured cruelly and made to languish in solitary confinement at the whims and fancies of jailers, who usually operate in accordance with 
the instructions of the military authorities.

To sum up, Mr. Chairman, the rule of law is in dire straits in Burma today.  In the attached statement, 1 have given explicit instances of the ways in which the independence of the judicial is eroded,	human rights violated and justice rendered farcical under military rule.  Our struggle for democracy is a struggle for a system
which will ensure that the law is the protector and not the persecutor of the People.  We shall continue in this struggle until democracy has been established and basic human rights guarantees in our country. May I, on behalf of the Central Legal Committee of the National League for Democracy, urge delegates to this conference to do their utmost to promote the cause for democracy, without which the rule of law cannot be restored to Burma.

Thank you.

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 Rule of law in Burma under SLORC


Rule- of Law is amongst the foremost political objectives proclaimed by the State Law and Order Restoration Council (henceforth referred to as SLORC).  However, in matters concerning members, supporters and sympathizers of the National League for Democracy (NLD), the authorities habitually take arbitrary action which does not accord with the law of the land.

In ,section 2(a) of SLORC's law no. 2/88, "the Judiciary Law", it is said that "justice will be administered independently according to law". However in cases concerning members of the NLD, judgment is passed as required by the authorities and dictated by various state intelligence organs, regardless of the provisions of the law.

Although section 2(e) of the above mentioned law provides that justice shall be dispensed in open court unless otherwise prohibited by law" trials are held in prison precincts.  Without the permission of the intelligence organs, judges cannot even let the family and counsel of the accused know what sentence has been passed.  In many cases the accused are kept in ignorance of the section of the law under which they are charged.  There have been instances when the Military Intelligence passed sentence, orally at the time of arrest, before any trial had taken place.

Section 2(f) of SLORC law no. 2/88 gives the accused the right of defence and the right of appeal under the law.  Moreover, section 340(1) of The Code of Criminal Procedure (act V of 1898) provides that "any person accused of an offense before a Criminal Court, or against whom proceedings are instituted under this code, in any such court, may of right be defended by a pleader" (i.e. by a lawyer).  This was reiterated in para. 455(1) of the Burma (now Myanma ) Courts manual, as follows: "Every person accused may of right be defended by a pleader . In the majority of cases where the accused are members of the NLD, access to and defence by a lawyer are denied in flagrant violation of SLORC's own laws and proclamations.

Maximum prison sentences are meted out to members of the NLD when the evidence against them is inadequate or even impermissible under the law.

In cases of appeal or revision to a higher court, the convicted person is required to put his or her signature to a form giving power of attorney to a lawyer to file the memorandum of Appeal or Revision within the prescribed period of time.  However when the relevant forms are submitted to the prison authorities, the forms are filled in and returned only with the consent of the Military Intelligence.

In cases prosecuted under section 5(j) of the notorious Emergency Act of 1950, the accused are detained for long periods under the pretext of awaiting the sanction of the authorities concerned.  When sanction is not received, instead of closing the case, the accused are sent up to be prosecuted under section 505 (b) (statements conducive to public mischief) and sentenced to imprisonment.


Fundamental Legal Rights Denied

Bail is often denied to cases which are bailable under section 496 of the Criminal Procedure Code by classifying such cases as "Si-Man-Chet", or "planned".  In such cases the accused may not have infringed the law but the judges are obliged to give them compulsory sentences, usually a term in jail.  In such cases the higher appellate courts usually take, the line of least resistance and do not rectify or interfere with the orders and sentences of the lower courts.  The appeal or revision is dismissed.  Consequently the Pillar of Justice is no longer a pillar of strength and refuge for the oppressed but is like, a reed quivering in the wind.


Sub-Judice Speeches

In special cases, the Judge personally convenes a meeting of his subordinate,  and explains in a speech the reason why a certain person or persons are deemed or to be deemed guilty of the offense with which he/she or they are charged.  When such a meeting is convened by the highest judicial authority and the explanation is also delivered by him, it is more than a sub-judice acts, it virtually amounts to a conviction before and without a trial. 


Retrospective LAW

On  10 July 1991, the SLORC promulgated law no. 10/91, amending the Hluttaw Elections Law. On the same day SLORC issued order no. 4/9l which enumerated offenses affecting elected representatives.  Both the law and the order were to have retrospective effect, thus violating fundamental and sacred principles of law.


The Judiciary under Military Dictatorship 

the military government of Burma have not abided by its own municipal laws nor by international norms of justice.  As it is neither an elected government accountable to the people nor a popular government ruling under a constitution accepted by the people but a government that has usurped power by military force, there can be no rule of law and the independence of the judiciary is a mere scrap of paper, a mockery of the system.

Arbitrarily arresting members, supporters and sympathizers of the NLD who are simply working for democracy out of true belief and convicting them under laws meant for common criminals contradicts internationally accepted principles and norms of justice.

Members, supporters and sympathizers of the NLD who are jailed are frequently transferred to prisons far away from their homes.  As a consequence, some imprisoned NLD members are unable to see their families for months and thus deprived of important moral support as well as the essential supplement to their diet and the medicines necessary for survival in the penal system under SLORC.

Some prisoners of conscience who have, completed their jail terms are not released.


Pyithu Hluttaw or Parliament

The Pyithu Hluttaw (parliament) Election Law defines the word Hluttaw
as  the Pyithu Hluttaw and section 3 decrees that the Hluttaw shall be formed with the elected representatives of the various constituencies in accordance with the law.  However, the Hluttaw has not  yet been called or convened although elections were held way back in 1990.  This is in stark contrast to the procedure in working democracies where Parliament is convened within weeks of the elections.  The failure to call the Hluttaw is tantamount to a refusal to respect the mandate of the people.

 
Suppression of the Rightful Activities of Political Parties and Persecution of Members of the NLD

Under section 2(b) of the SLORC law no. 6/88, the law relating to the formation of political parties, a political party is defined as a party which has a political belief upon which its activities are based.  Yet members of the NLD are not allowed to engage in legitimate political activities.

Such occasion, as the commemoration of the anniversary of the founding of the NLD and the anniversary of the resounding victory won by the NLD in the elections of 1990, are normal functions for a legally registered party.  However, the authorities habitually subject the NLD to severe harassment on these occasions. Delegates to the commemorative conventions are detained, those who have to come from the districts are denied bus and train tickets, wives of delegates who manage to get away for the conventions are detained, access to the venue of the conventions is blocked, delegates arriving for the conventions are forcibly turned away or taken away by car to a distant suburb.  NLD delegates who are detained are charged under various sections of the law such as section 5(j) of the infamous 1950 Emergency Provision Act (the Law Protecting the State from Destructive Elements); section 505(b) of the Penal Code, designed against statements conducive to public mischief; and section 5(l)(f)
(g) of the Habitual Offenders Restriction Act, better known as HORA, which is intended for habitual criminals and thus, vagabonds, and those who do not have an ostensible means of livelihood.

In some police stations, detained members of the NLD were kept like common criminals and in some instances were subjected to inhuman treatment.  Women members of the NLD were put in the same cells as prostitutes and criminals, on occasion even kept together with male detainees.

The authorities subjected elected Hluttaw representatives of the NLD who were detained to threats and intimidation, and used various unlawful means to compel them to resign as the elected representatives of their Hluttaw constituencies.

The authorities constantly interfere in the internal matters of the NLD  and restrict its activities such as the formation of organizational Committees,  the delegation or    suspension of duties  and responsibilities.  Recruitment of new members is prohibited, party meetings are prevented or restricted.

The opening of NLD offices and the putting up of NLD signboards are not allowed.  Signboards that were legally put up  with the permission of the Elections Commission brave been forcibly removed by the authorities.  The lawful flag of the NLD was not allowed to be flown at various NLD offices and forcibly removed.  Owners of the premises where NLD offices are located are threatened and coerced to withdraw their leases.

The NLD is not allowed to print, publish or distribute any papers. Documents that were seized during raids on  NLD offices are not returned.  Legally published directives and documents laying out the policies of the NLD are seized as exhibit and those in possession of such papers are prosecuted.  The distribution of video recordings of conventions and commemorative ceremonies held by the NLD are prohibited.  A law was promulgated in 1996 to make the distribution of such videos an offense carrying a stiff prison sentence.

The wearing of the (unofficial) uniform of the NLD by an organizational committee in the Irrawaddy division was deemed to constitute incitement to unrest and disturbance of the peace and tranquillity of the country.  All the members off the committee were
prosecuted and sentenced to imprisonment.  The chairman of the committee has since died in Myaungmya prison from lack of adequate medical care.

The authorities place difficulties in the way of business and social activities of members of the NLD. Matters relating to tax and revenue, transport and communications are subjected to close scrutiny and the slightest mistake results in prosecution and prison sentences.

Members of the NLD are unjustly evicted from state owned apartments.  In some instances house owners are prevented from taking in members of the NLD as tenants.  There have also been cases where guest houses were ordered not to rent rooms to members of the NLD.

Civil servants related to members of the NLD have been arbitrarily transferred to remote areas.  NLD members who are medical practitioners have had their licenses to practice medicine withdrawn.  NLD lawyers have also had their licenses suspended and some have been struck off the roll of lawyers.


Instigation or Perpetration of Violence against members of the NLD

On 9 November 1996, a convoy of cars carrying U Tin U, U Kyi Maung, Daw Aung San Suu Kyi and some elected representatives was attacked by about 200 person with miscellaneous weapons in broad daylight.

A first information report was lodged with the Bahan Township Police Station but in spite of the fact that some security officers were present around the scene at the time of the attack, not a single person has been known to have been arrested in connection with the incident.  Eleven months have now passed but the police, have not yet sent up any person or persons for trial.

The NLD with a view to bringing out the truth and preventing any similar incidents from taking place in future, proposed to the authorities that an independent inquiry panel comprised of respectable and trustworthy citizens be formed and that their finding be published for the benefit of the general public but the authorities have not made any response.

A minister of the SLORC government who is also a secretary of the Union Solidarity and Development Association (USDA), openly called for the elimination of Daw Aung San Suu Kyi.  He specifically explained that to eliminate meant to kill.  The Government has turned a blind eye to such a gross offense under the criminal law in spite of an official request by the NLD to the chairman of the SLORC asking that appropriate action be taken. (It is worth noting here that the USDA was formed under a notification that enables members of the civil services to join the association.  Thus a notification has been allowed to override a law, no. 6/88 promulgated by SLORC, which prohibits all public servants, including military personnel, government servants, the police and all those receiving salaries from public coffers, from joining associations.')

The chairman of the Mandalay Division organizational committee of the NLD who is also an elected Pyithu Hluttaw representative was attacked on the Mandalay-Rangoon Express on 22 November 1996 and  robbed.  Although the incident was duly reported to the police no action was taken.

Local authorities have made threats against the life and security of members of the NLD living under their jurisdiction.  Members of the NLD have been conscripted as porters for the armed forces and four members to date have lost their lives as a consequence.


Forced Labour

Forced labour is a daily occurrence in all parts of Burma.  Action is taken under section 12 of the Village Act against those who refuse to supply "voluntary" labour to build roads, railways, bridges, dams and other constructions when ordered to do so by the authorities.

Sometimes rigorous terms of imprisonment were meted out. It is often difficult  for households to supply the labour required of them without economic loss.  During the  hot season and during the rains, the health of labourers suffer from the weather and from lack of clean drinking water. In many instances neither adequate food nor shelter is
provided.  Lives have been lost due to ill health and to snake bites in some areas.

Labourers are treated harshly and often made to provide food and shelter at their own expense.  At the completion of the work quota, labourers sometimes have to bribe the authorities so they could be released and return home.  The ILO should take steps to ensure that such a misuse of labour contrary to the spirit and letter of the ILO conventions is discontinued as soon as possible.


General

There is no freedom of thought, expression or association in Burma under SLORC.  The laws and notification brought out by SLORC are sometimes contradictory, as has been illustrated in some of the cases above. Law no. 5/96 represents another contradiction. After declaring openly that it was the duty of all citizens to participate in the drawing up of the state constitution, the law prohibits the drawing up of a constitution by anybody outside the National Convention convened by SLORC.

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