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An Open Letter from the Asian Human Rights Commission to the Chief Justice of Myanmar/Burma U Tun Tun OoChief

Justice Office of the Supreme CourtOffice No. 24NaypyitawMYANMAR Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145Fax: + 95 67 404 059 Dear Chief Justice, MYANMAR: Demand open trial, retrial and dropping of contempt proceedings in case of Phyo Wai Aung The Asian Human Rights Commission is writing to you concerning the case of Phyo Wai Aung, the young man whom the Myanmar Police Force have falsely accused of conducting a bombing at the traditional New Year festival during 2010. The AHRC has been closely following this case since the beginning, and has documented multitudinous miscarriages of justice throughout the investigation and trial proceedings. The latest of these miscarriages occurred on Monday, 20 February 2012 when the judge in the closed court in the central prison where the trial has been going on ordered that contempt of court proceedings begin against the defendant and his two lawyers and curtailed the defendant's testimony. According to the information that we have received, the lawyers, U Kyaw Hoe and Daw Thinza Hlaing had been examining their client concerning the taking of advance testimony from a witness before the actual trial had begun. When the defendant cast doubt on the manner in which the judge responsible for taking this advance testimony had conducted the inquiry and the defence lawyer asked if it appeared that evidence had been deliberately withheld--since the purpose of the advance testimony was evidently to deny the defendant a witness who could provide him with an alibi--the prosecution claimed that the defence had intentionally insulted the judicial and legal officers involved in the case and asked for legal action to be taken against the two defence lawyers and the defendant. The defendant's lawyers objected that no legal ground existed for action against them as they were just rebutting the evidence brought against their client, but Judge U Aung Thein ordered that charges be laid against the lawyers and their client either under section 228 of the Penal Code, for intentionally causing an insult to a judicial officer or under the Contempt of Courts Act section 3, 1926. The order to charge the defendant and lawyers not only demonstrates the utter lack of credibility of the trial process in this case but also raises serious questions about the rights of any defendant in a Myanmar court to issue a defence on the facts of the case. Phyo Wai Aung and his lawyers were doing no more than submit a defence testimony in response to the facts alleged by the prosecution. They did not raise questions concerning the evidence submitted by the judge in order to cause insult or do anything else in contempt of the judiciary, but merely as part of the defence of the accused, as is his legal right. If doing no more than attempting to rebut prosecution evidence submitted to court through a judicial officer constitutes an act of contempt, then woe to all accused in Myanmar, since in any case where anyone attempts to cast doubt on the evidence presented by a judicial officer in order to rebut the prosecution case, he or she could be charged with committing a criminal offence. The logic of this order to prosecute for contempt of court is nothing other than that a judicial officer's evidence cannot be subject to cross examination. As this logic is clearly nonsensical, a decision needs to be made from higher up in the judiciary to suspend these meaningless criminal actions against the two lawyers and their client without delay. The question of the criminal charges being brought against the lawyers and Phyo Wai Aung is of course by no means the only one pertaining to this case with which we are concerned. On the contrary, it is just the latest in a long line of persistent gross injustices and abuses of fundamental human rights that have been on display from the moment of

the defendant's arrest in April 2010. The most glaring among those features is the holding of the trial behind closed and locked doors in the Insein central prison, where the defendant has been held since his arrest. After on some occasions even the family of the defendant was not allowed inside to hear the trial, the presiding judge recorded in his diary that whoever was allowed into the court or not was not his concern and was a matter for the prison officials. A lawyer took this matter of access to the court all the way to the Supreme Court. In January 2011, Judge Myint Thein of the Supreme Court ruled that he saw no cause to interfere in the proceedings, noting that the order for the trial to be heard in a closed courtroom was justif ied because the case was "not an ordinary criminal case but a wellknown case". In other words, for the very reason that the case would attract onlookers, it apparently has to be held behind closed doors. This preposterous reasoning, like the reasoning that a defendant who does no more than legally defend himself may be subject to a charge of contempt, which goes completely against the claims of the government of Myanmar to be implementing principles of justice in the holding of criminal trials, including open court. Therefore, we take this opportunity to call for a review of the case against Phyo Wai Aung and for it to be transferred to an open court without delay, where members of the public, his family and legal advocates may assemble without interference and peaceably hear the proceedings against him. The case against Phyo Wai Aung is fatally flawed for other reasons too. Just to mention one or two, the current judge hearing the case is the fourth judge since the case began. Both the Criminal Procedure Code and the Courts Manual make clear that where new judges take up cases, the defence has a right to request that the trial be reheard. Although Phyo Wai Aung's defence lawyers have repeatedly submitted requests at all levels for the trial to be reheard, this has not happened. From the point of view of the AHRC, in a complicated and important case of this sort, it would be inconvenient although perhaps unavoidable that the presiding judge might be changed once in the course of trial, but that four judges in a row hear proceedings makes the prospect of justice remote indeed. Other persistent flaws in the case include the refusal of the court to allow the defence to cross-examine prosecution witnesses fully; the resistance of the prosecution to give evidence to the defence to which the latter is entitled; the failure to call prosecution witnesses to the court, instead receiving from them "advance" testimonies made in another court, and thereby denying the defence the right to cross-examine them, and a wide variety of procedural defects. These failures are procedural. The lack of any solid evidence against the accused, the failure of the court to admit evidence in his defence, the use of torture to extract confession, and many other elements in the case all contribute to our finding that the case ought never have gone to court. For these reasons, we call for a retrial, or for the case to be dismissed on the grounds that it is fatally flawed and evidenceless. To reiterate, we are calling on the Supreme Court to: (1) Stop the pressing of contempt charges against Phyo Wai Aung and his lawyers, U Kyaw Hoe and Daw Thinza Hlaing. (2) Transfer the case against Phyo Wai Aung to an open district court. (3) Order a retrial of the case, or if possible, take steps to have the case dismissed as groundless, fruitless, illegal and unjust. Finally, we also take this opportunity to renew a call of the Asian Human Rights Commission's sister organisation, the Asian Legal Resource Centre, dated 22 December 2011 (ALRC-OLT-009-2011) for the licences of 32 lawyers that the Supreme Court revoked for political reasons to be restored at the earliest possible opportunity. We note that a number of these lawyers were, like the lawyers in the current case, charged with contempt or under section 228, and sentenced to periods of imprisonment or fined, after which they

lost their licences. We observe that not only these lawyers but also others handling other types of cases have also been imprisoned and lost their licences in cases of contempt. We construe that a pattern of behaviour exists in Myanmar courts whereby judges use the threat of contempt or section 228 proceedings to intimidate lawyers and thereby prevent them from performing their legitimate tasks of defending their clients, as in the case of Phyo Wai Aung. We note that at present the new legislature in Myanmar is undertaking to review many old laws, and accordingly we call for a thorough review of the law on contempt so that it not be systematically abused, as at present, so as to prevent lawyers from undertaking their legitimate tasks, and thereby to deny defendants their legal rights. Yours sincerely, Wong Kai ShingExecutive DirectorAsian Legal Resource Centre, Hong Kong Copies to:The President, NaypyitawDirector General, Office of the Attorney General, NaypyitawChairperson, Legislative and Judicial Affairs Committee, Pyithu Hluttaw, NaypyitawChairperson, Myanmar National Human Rights Commission, Yangon United Nations Special Rapporteur on human rights in Myanmar, GenevaUnited Nations Special Rapporteur on the independence of judges & lawyers, GenevaOffice of the High Commissioner for Human Rights, Regional Office, Bangkok ###