Lawyers Rights Watch Canada (LRWC) and Lawyers for Lawyers (L4L)[1] have been following current statements and efforts of the government of the Union of Myanmar towards reform and respect for human rights. Several positive steps have been taken, such as the establishment of a national human rights commission, the elections on April 1, 2012 and the freeing of many but not all political prisoners.
On January 17, 2012, LRWC and L4L wrote a letter to Chief Justice U Tun Tun Oo and otherMyanmarauthorities expressing concern with the revocation of lawyers’ licenses and asking that the revocations be reconsidered. We have not received a response.
We are writing to you to draw your attention to the abovementioned revocations of licenses to practice law and to the prosecution of U Kyaw Hoe and Daw Thinza Hlaing for contempt.
Revocations of licenses to practice law
LRWC and L4L are concerned with both the unfairness of the process by which the licenses to practice law were revoked and to the bases of the revocations. We understand that at least thirty-two lawyers (named below) have had their licenses revoked in judicial hearings that were held in private, without proper representation, and without adherence to the required procedures of the Bar Council Act, the Legal Practitioners Act and the Courts Manual. It is reported that the decision making bodies in these procedures for revoking licenses, namely the judiciary and the Bar Council, did not observe the rules of impartiality and independence required pursuant to international law standards. It is also reported that the revocations of these lawyers’ licenses were not based on any breaches of professional codes of conduct, but were based on the lawyers’ legitimate and peaceful political activities, their representation of clients or causes unpopular with the Myanmar government, or on convictions based on these activities. To prevent a lawyer from practicing law on the basis of real or suspected political opinions or on the lawyer’s representation of clients or causes unpopular to the government violates international standards safeguarding freedom of expression, freedom to participate in political affairs, and the freedom to vigorously represent clients free from interference, harassment, or reprisals from state agents or others appear to have been violated.
In our letter of January 17, 2012, we listed the following names of lawyers (license numbers in brackets) whose licenses to practice law have been wrongly revoked:
SUPREME COURT ADVOCATES
1. U Aye Myint (4377)
2. U Myint Than (2639)
3. U Har Mar Nyunt (1756)
4. U Myint Htay (1827)
5. U Khin Maung Thein (2694)
6. U Thaung Myint
7. Daw Khin San Hlaing (4203)
8. U Kyi Win (1506)
9. U Htay (3860)
10. U Khin Maung Thant (1784)
11. U Thein Than Oo (3695)
12. U Sein Nyo Tun (3978)
13. U Aung Thein (2703)
14. U Khin Maung Shein (4660)
15. U Robert Sann Aung (2469)
16. U Saw Hlaing (4666)
17. Daw Tin Htwe Mu (1447)
18. U Saw Htun (2791)
19. U Htun Htun Han
20. Thura U Tin Oo
21. U San Ni Tin Pe
22. U Aye Myint (Guiding Star) (4821)
23. U Myat Hla (1154)
24. Daw Hla Myint
25. “BBC” U Ne Min (2090)
HIGHER GRADE PLEADERS
1. Daw Ohn Kyi (6764)
2. U Aung Kyi Nyunt (3710)
3. U Htun Oo (11942)
4. U Nyi Nyi Htwe (24702)
5. Saw Kyaw Kyaw Min (28261)
6. Ko Phyo Phyu / Yan Naing Aung
7. U Tin Aung Tun (21483)
Contempt Proceedings against U Kyaw Hoe and Daw Thinza Hlaing
Since our letter of January 17, 2012, two more lawyers, U Kyaw Hoe and Daw Thinza Hlaing, have had their licenses revoked. U Kyaw Hoe and Daw Thinza Hlaing, the defense lawyers in the trial of Phyo Wai Aung, have been charged with intentionally causing insult to a judicial officer, for attempting to rebut evidence submitted to the court by the prosecution through a judicial officer. We were informed that although the defendant’s lawyers objected that no legal ground existed for action against them, Judge U Aung Thein ordered they be charged either under section 228 of the Penal Code,[2] for intentionally causing an insult to a judicial officer or under section 2 of The Contempt of Courts Act(India Act XII, 1926.)[3]
The purpose of contempt powers is to ensure fair trials and protect—not undermine—the court’s ability to receive and examine conflicting evidence and thereby arrive at a just result that accords with the truth. In criminal trials where the accused is always against the state, the authorities who gathered the evidence must be open to question as a part of the process of elucidation of the truth. Fair trial rights depend on lawyers, judges and witnesses being absolutely immune—in the absence of fraud—from prosecution for statements made or evidence submitted in the course of judicial proceedings.
The prosecution of U Kyaw Hoe and Daw Thinza Hlaing violates the right and duty of lawyers to vigorously represent clients free from reprisals denies their client’s right to make full answer and defense. In so doing the prosecution of these lawyers brings the Myanmar legal system into disrepute.
International law obligations
Myanmar, as a member of the United Nations since its inception in 1948, is bound by the terms of the UN Charter which includes “promoting and encouraging respect for human rights and for fundamental freedoms for all…” Myanmar also has the obligation to ‘promote and encourage respect for human rights and for fundamental freedoms for all…’and to uphold the freedoms articulated by the Universal Declaration of Human Rights which states in Article 8: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”
The Union of Myanmar is legally bound by customary international law which includes the obligation to ensure the right to make full answer and defense and to have rights a “fair and public hearing by a competent, independent and impartial tribunal established by law” (International Covenant on Civil and Political Rights, Article 14). The UN Human Rights Committee has determined that, “The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.”[4]
We also draw your attention Article 10 of the Basic Principles on the Role of Lawyers (Basic Principles)[5],
Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of … political or other opinion…
The Basic Principles articulate widely accepted norms of international law regarding the responsibilities of lawyers and the duty of states to protect lawyers from interference, persecution and harassment in the discharge of their professional duties.
Myanmar has a legal duty to safeguard the right and duty of lawyers to vigorously defend their clients without interference. Identifying lawyers with their clients’ charges, causes, or political beliefs, as was done in these cases, is specifically prohibited by Article 18 of the Basic Principles:
“Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
The revocation of licenses to practice law and the prosecution of U Kyaw Hoe and Daw Thinza Hlaing, further violate the Basic Principles by preventing these lawyers from “protecting the rights of their client and promoting the cause of justice,” a duty safeguarded by Article 14 of the Basic Principles. These actions also violate the duties of Myanmar, set out in the Basic Principles, to protect lawyers in the conduct of their professional duties, namely the:
1. Duty to guarantee the functioning of lawyers as set out in Article 16,
“Governments shall ensure that lawyers
(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;
(b) are able to travel and to consult with their clients freely both within their own country and abroad; and
(c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”
2. Duty to protect the personal and professional safety of lawyers as set out in Article 17, which provides,
Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.
3. Duty to protect lawyers’ freedom of expression and association as set out in Article 23, which provides,
Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
LRWC and L4L call on the government of Myanmar to:
1. Take immediate action with respect to the revocations of licenses to practice law (revocations) referred in this letter to ensure:
a. a review of each revocation that: i/ is conducted in public, ii/ is conducted before a competent, independent and impartial tribunal, iii/ is conducted in accordance with the requirements of the Bar Council Act, the Legal Practitioners Act and the Courts Manual, iv/ allows each of the lawyers legal representation, ensures full disclosure of the allegations against him/her and the opportunity to make full answer and defense. in accordance with international fair trial standards;
b. restoration of the licenses to practice law of all each of the lawyers named in this letter, pending completion of the reviews.
2. Withdraw the contempt charges and dismiss the proceedings against U Kyaw Hoe and Daw Thinza Hlaing and ensure that no further civil or criminal proceedings will be taken against either of them for statements made or evidence presented in the course or representing clients.
We thank you for your attention in these very important matters. LRWC and L4L will continue to monitor this situation and look forward to your response with interest.
Sincerely,
Gail Davidson, LRWC Executive Director
Adrie van de Streek, Lawyers for Lawyers
[1] LRWC is a committee of lawyers who promote human rights and the rule of law through research, education and cooperation with other human rights organizations. LRWC has Special Consultative status with the Economic and Social Council of the United Nations.
L4L is an independent Dutch foundation operating on a worldwide scale that commits itself to enable lawyers to practice law in freedom and independence.
[2] Penal Code, Chapter XI, Of False Evidence and Offences against Public Justice. Section 228. Intentional insult or interruption to public servant sitting in judicial proceeding.
[3] Section 2. The High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts Courts subordinate to it as it has and exercises in respect of contempts of itself:
Provided that the High Court shall not take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Penal Code.
[4] UN Human Rights Committee General Comment No. 32, Article 14, Right to Equality before courts and to fair trial, 23 August 2077, CCPR/C/GC/32, para. 17.
[5] The Basic Principles were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,Havana,Cuba, 27 August to 7 September 1990,
