A Statement by the Asian Human Rights Commission

BURMA: Closed courts, absurd law and the exception as norm

On the eve of the anniversary of the massive nationwide protests that swept Burma last September 2007, a steady stream of cases against persons wrongfully arrested, detained and charged for their involvement in the rallies continues to pass through the courts. The accused include civilians as well as former monks who have been stripped of their robes. In recent weeks they have also been joined by persons who have been charged for giving relief to the May cyclone victims without proper government approval and for speaking to the media about what they had seen.

The Asian Human Rights Commission has been following and studying many of these cases closely and has issued appeals on a number of them over the last few months. Apart from the patently illegal manner of arrest and procedure in laying charges and bringing cases to the courts, one of their striking features is that they are being held behind closed doors: in special criminal courts and sometimes inside the prison itself.

The holding of closed trials violates one of fundamental provisions of the country's 2000 Judiciary Law, that of "dispensing justice in open court unless otherwise prohibited by law". The same principle has been laid down in the new constitution of 2008, which has been in effect since the end of May. According to the Judiciary Law, open court is the norm and closed court is the exception. But like so many other things in Burma today, in these cases it is the exception that has been made the norm, and absurd law that has been made supreme.

Advocates for defendants from last September's protests, who have been charged with disturbing public tranquility, sedition, upsetting religious harmony and a variety of other absurd offences, have submitted to presiding judges that the hearings should be held in public as the law dictates. However, according to the records obtained by the AHRC, they have been told that under a Supreme Court Order, No. 16/2008, the trials are to be held out of view.

What is this Supreme Court order and what is its basis? There is nothing in any law to prohibit the holding of such trials in the open. Nor should there be any possibility of security problems arising from the trials if they are handled properly. Even under the British colonialists the cases of persons charged with sedition and other political offences were heard in open court unless a specific problem presented itself that forced the court to shut itself off. These tribunals were very often hardly exemplars of justice, and yet it seems that the current courts in Burma are not even able to come up to their rather low level.

So why really is it that these persons too cannot have the charges heard against them in public? The only reason that the Asian Human Rights Commission can discern is that the trials are so fraudulent and bankrupted that even for Burma's perverted and dictated judiciary they would be an embarrassment. Police coming to give evidence in these cases acknowledge that they actually know nothing about the facts, and that the investigations were done by combined security forces, meaning army intelligence officers. Other witnesses have included "Swan-arshin" thugs and council officials who carried out many of the so-called arrests rather than police officers, who have openly admitted that they took the accused to army facilities instead of police stations as required by law. What evidence has been presented has consisted of one fabrication on top of the next, one contradiction after another.

It may be too much to expect that these detainees will be readily released and that there will be any prospect for their fundamental rights to be properly acknowledged, but is it really too much to expect that even the absolute minimum standards of trial cannot be met? Does Burma's Supreme Court have nothing to offer other than Stalinist administrative hearings held in places that are described as courts but are devoid of anything that would earn them the name?

The Asian Human Rights Commission hopes that for the sake not only of these defendants themselves but for the sake of all persons in Burma that there is still some prospect of minimum standards being met in these cases. It hopes also that the international community will in dealing with Burma emphasise these minimum standards, and that in particular the United Nations and governments of the Association of South East Asian Nations and other countries in the region will make special appeals to the government of Burma, or Myanmar as it prefers, that these cases be tried in open court in accordance with established domestic law. And finally, it also reiterates its hope that the International Committee of the Red Cross be given full and regular access to these detainees in accordance with its mandate, not in accordance with whatever terms that the government authorities choose to apply to it, so that not both legal and physical minimums can be ascertained and protected. Otherwise, in the absence of this much, why bother with courts, trials and designated prisons at all?

# # #

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.