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High Level Panel reiterates concerns as court in military-ruled Myanmar finds ASSK and other civilian leaders guilty of two offences
On 6 December 2021, members of the High-Level Panel, consisting of prominent lawyers, reiterated their concerns regarding the trials of political leaders in Myanmar - State Counsellor Daw Aung San Suu Kyi and President U Win Myint - as failing to meet minimum fair trial standards established under international law. They also raised concerns regarding the verdicts, which found the political leaders guilty of an offence under Section 505(b) of the Penal Code and of breaking Covid-19 rules under a natural disasters law. The political leaders were each sentenced to four years in prison, after a trial that has never been open to the public. Reportedly, Daw Suu Kyi’s sentence has been reduced to two years.
The Zabuthiri Court communicated its verdicts, on 6 December 2021, in the case against, among others, President U Win Myint and State Counsellor Daw Aung San Suu Kyi under section 505(b) of the Penal Code and Section 25 of the Disaster Management Law. Section 505(b) of the Penal Code criminalises publishing or circulating ‘any statement, rumour or report, with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offense against the State or against the public tranquillity.’ U Win Myint and Daw Aung San Suu Kyi were found guilty of publishing or circulating such a statement. Given the Panel’s previously expressed concerns, and given that there has been no public trial that could be independently reviewed by the Panel or anyone else, these verdicts must be viewed, at best, as highly questionable and suspicious.
According to international law standards and as also stated in Myanmar’s Fair Trial Guidebook adopted in 2018, a public hearing affords the parties and the public transparency, and lends credibility to the judges’ ultimate verdict, including the notion that the decision was independent. The fact that the verdict against high-profile political leaders comes after a hearing that wasn’t made public sheds doubt on its fairness.
These concerns are strengthened by the fact that, under Section 505(b) of the Penal Code – with the maximum penalty established by that provision – the case against the accused is said to be based on two statements released by the National League for Democracy and attributed to the political leaders. If the conviction is based on these statements only, their content does not seem prima facie to be unlawful, as there was no call to arms and a criticism of the government is not an offence under the Constitution of Myanmar or under the Penal Code.
Moreover, there seems to be no evidence, or at least no evidence beyond reasonable doubt, that the accused made the statements attributed to them. Since the trial was not public, it is not known on what basis the two statements, dated 7 and 13 February 2021 and related to circumstances after the military regime was established, could be attributed to State Counsellor Daw Aung San Suu Kyi and President U Win Myint. Both were arrested on 1 February 2021 and from that time on were detained in military custody and denied contacts with the outside world. They were also denied any contact with their lawyers for several weeks.
These concerns add to those already expressed in the past by the Panel that:
- after the political leaders were detained, they were denied access to legal assistance for two months, even after they requested to see lawyers;
- although the leaders have now been allowed access to legal assistance, they have not been given enough time to communicate with their lawyers, being permitted only 30 minutes to discuss all complaints against them at each meeting;
- the lawyers have not been given all relevant information about the complaints in time or, in respect of some information, at all and have been unable to explain the situation defendants’ situation to them;
- the hearings that have taken place to date have not been open to the public. This has been justified on the basis of Covid-19 restrictions; however, no provision has been made to accommodate the virtual participation of journalists or observers;
- despite the public being barred, a photographer entered the hearing room before each hearing and took photographs of the political leaders, until this practice was challenged by the defence lawyer. Later the photographs appeared in newspapers; and
- there have been several delays to the proceedings due to 'State holidays'. These delays have resulted in the lawyers being denied access to the detainees for several weeks on end.
In view of the above, the High-Level Panel reiterates its concerns regarding the trials of political leaders in Myanmar as failing to meet minimum fair trial standards established under international law.
The High-Level Panel was established in July 2021 to review the trials of high-profile political leaders in Myanmar, most notably of State Counsellor Daw Aung San Suu Kyi and President U Win Myint, who were arrested on 1 February 2021, deposed and charged with multiple offences.
In July 2021, the High-Level Panel asked the Court to facilitate its trial review, through video recorded and live-streamed hearings, or at a minimum, an audio recording, and through contact with the prosecuting lawyers and the defence team. The Court’s failure to respond to this request has forced the High-Level Panel to conclude that, as of this moment, there has been and will be no public trial that can be independently reviewed by the Panel or anyone else.
On 30 September 2021, the High-Level Panel publicly called on the Court to cooperate with it to ensure that fair trial standards are met and stressed its concerns regarding the failure to meet minimum standards established under international law. The Court failed to respond and open the trials to the public.
On 15 October 2021, Reuters reported that the military authorities in Myanmar had imposed a gagging order on Khin Maung Zaw, the lead lawyer representing Myanmar's ousted leader Daw Aung San Suu Kyi, barring him from speaking to media, diplomats, international organisations and foreign governments. On 27 October 2021, The Guardian reported that the military authorities in Myanmar had imposed gagging orders on all her defence lawyers. These accounts suggest a further blow to the accused’s rights and to the legal profession in Myanmar. They also suggest a breach of accepted international standards, about which the Panel is seriously concerned.
On 27 October 2021, following said news, the High-Level Panel again renewed its call for the authorities and the Court in Myanmar to ensure and demonstrate openly that fair trial standards are met. Despite this reiterated call and concerns, the trials against political leaders continued to be closed to the public.
The High-Level Panel will continue to review any information received about the handling of the trials of the political leaders in Myanmar and will provide updates.
Notes to the Editor
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