BURMA JUDICIAL INTERVENTION CONTRIBUTION FOR THE 58th SESSION OF THE UN COMMISSION ON HUMAN RIGHTS

BURMA JUDICIAL INTERVENTION
CONTRIBUTION FOR THE
58^th SESSION OF THE UN COMMISSION ON HUMAN RIGHTS, APRIL 2002

The role of Judges and the legal profession

The country is still under military rule, with their governing body called the State Peace and Development Council (SPDC).

The current Chief Justice U Aung Toe was installed by the SPDC’s previous incarnation the State Law and Order Restoration Council (SLORC) in September 1988 by decree called the Judiciary Law that inter alia that caused the summary dismissal of approximately 62 Judges, closed the courts until June 1989 and established military tribunals.

Although the military tribunals ceased in 1992, the military controls all of Burma’s major institutions, which includes the judiciary.

U Aung Toe through his participation in LawAsia has signed a document called the Beijing Principles on the Independence of the Judiciary that articulates 44 principles, consonant with those articulated by the UN in various forms.

In November, 1998, When the SPDC summarily dismissed five Supreme Court Judges, U Aung Toe never protested, privately nor publicly. The Supreme Court is closed to all, thus denying public scrutiny.

The removal of five out of six judges in the Supreme Court led observers to understand that the military junta has no tolerance for independent judges. In fact, the situation is even worse than international observers realise, as the removal of judges at lower levels is unknown to the international community. There is no protection for a judge in terms of tenure or other provisions regarding dismissal from office.

The legal profession’s independence is also severely compromised and this too is another measure of the judiciary’s compromised position. The Bar Council is presided over by the Attorney General, himself appointed by the military.

The Army has a practice of giving instruction in every conceivable area of public life, from paddy cultivation, construction, and women’s affairs to legal and judicial administration.

The role of existing laws and the judicial system

Freedom of expression is controlled by more than half a dozen laws, the violation of which, may be, and in fact is, widely sanctioned by 3 to 20 years in prison. Among such laws are the Emergency Provisions Act (1950), the Printers and Publishers Registration Act (1962), the Official Secrets Act (1948), State Law and Order Restoration Council (SLORC) Order 8/88 (1988), SLORC Order 5/96 (1996), the TV and Video Act (1996) and the Computer Science Law (1996) and so on.

There are numbers of people still in prison for having peacefully expressed their views verbally, through participation in peaceful demonstrations or in activities of political parties, for having written about human rights or political issues in the country, or for reading or possessing written materials deemed illegal.

For instance, it made international headlines at the time in 1998 – the arrest, detention and subsequent trial of 18 foreigners in Burma. The 18, - 6 Americans, 3 Thais, 3 Indonesians, 3 Malaysians, 2 Filipinos and 1 Australian were convicted of "undermining the security of the union" and sentenced to five years imprisonment. Their trial provides a unique insight into Burma's legal system after 36 years of military dictatorship.

They were detained, without any formal arrest, by Burmese authorities on 9^th August 1998 in Rangoon, Burma's Capital City. The 12 of 18 while distributing business card sized "Goodwill Messages" and the remaining 6 members at the airport while attempting to return to Bangkok. Without any formal or informal charges or explanation for their detention, the 18 were held for five days under varying conditions. They were charged under section 5 (j) of the Emergency Provisions Act (1950) –

- which provides: "Whoever does anything with ... the ... intent... to affect the morality or conduct of the public or a group of people in anyway that would undermine the security of the Union or the restoration of law and order shall be punished..."

What is the "Goodwill messages" is – "We are your friends from around the world. We have not forgotten you. We support your hopes for human rights and demorcacy. 8888* - Don't forget – Don't give up" that all.

Finally, the 18 were sentenced to "five years imprisonment to be served at Insein Prison" where hundreds of Burma's political prisoners are currently detained. In political trials, such as this case, penalties (and guilt) are predetermined by junta authorities. No discretion is left to the judge.

The characteristics that define an independent judiciary, tenure, judicial review, etc, have been notably absent since 1988, and constitutionally since 1974 when judicial review was removed form its express provisions.

On the other hand, the junta are not in accordance even with the laws, that they had itself promulgated, including its failure to respect the Election Law (1989), under which the 1990 elections were held in Burma.

After the massive defeat by the junta in the 1990 elections, it issued Order 1/90, which declared that the elected representatives were merely entitled to fraft a constitution. In this way the junta sought to create legal justification for not handing over power to the civilian government according to the election result. Then again, they made the Law No.5/96 which limits the scope of Order 1/90, prohibiting the right to draft a state constitution outside the military-controlled drafting process. The National League for Democracy (NLD), won the election by over 82 percentage of parliamentary seats, has pointed out the conflict between these laws, and has stated that it will not comply with such laws.

In July 1999, the NLD lodged a complaint with the Supreme Court against SPDC members at local levels about their illegal deterrence of NLD members, including elected members of parliament, from travelling outside their home towns. The intention of the NLD party leaders was to expose the lack of independence of the judiciary, which is controlled by the junta.

About 256 political detainees had been released since 26 September 2000, most of whom were NLD members. Among them were 39 NLD elected MPs who had been detained for two years and eight months without charge or trial in government "guest houses" (mostly military barracks), and other elected MPs sentenced to various prison terms. Nowadays 17 elected Mps are still in prison. There remain at least, 1,500 political prisoners in Burma. Among the remaining political prisoners there are at least 100 women.

The SPDC's judiciary has been emasculated and fair trial and the due process of law have been consistently denied. The proceedings were not open to the public, and defendants were only rarely allowed to engage counsel to argue their case. Most of the trials were carried out in summary fashion, with scant regard being shown to the evidence adduced. Defendants were not presumed innocent without the relevant witnesses being examined.

The right to a "Fair Trial" is absolutely denied if a person is detained without being tried. This has become a common practice in Burma taking place under 1975 Law to Safeguared the State from the Dangers of Destructive Elements (known as the 1975 State Protection Law).

The Law allows the government to impose side-ranging restrictions on individuals: anyone who is suspected of having committed, or who is committing, or who is about to commit any act which endangers the sovereignty and security of the state or public peace and tranquility, can be ordered by the Council of Ministers to be imprisoned for up to five years without trial.

In this regard, I would like to share information on the case of Min Ko Naing, a well-known student leader in Burma.

Min Ko Naing was convicted under S.124 (d) of Burma Penal Code and S. 17(20) of Printing Act. The prison term expired in July 1999. However, unfortunately, he was not released actually. Instead, detention has continued under State Protection Law. This detention is totally illegal. If he was to be put under further detention, it could have been done only after releasing him and on fresh evidence of his illegal activities during the period subsequent to his release. Through out this long period with no contact with outside world being practically kept in solitary confinement, with broken health, it is inconceivable how such allegation could be made. The continued indefinite detention can ironically extend up to death of the prisoner.

It is a tragic case of a prisoner subjected to death sentence without trial. Similar events are commonly taking place for many political prisoners in Burma. Regarding the revoke right of judical appeal, in practice this means that detention is now a continued process for any number of years until death. Detention under the State Protection Law is an inverted death sentence without charges and without trial. For instance, Si Thu (aka) Ye Naing and Aung Kyaw Moe were both detained in Tharawaddy Prison under the State Protection Law. Both of them passed away while under detention.