In an astounding ruling that underscores the extent to which the judiciary in Burma has abdicated its authority in favour of the security services, a Supreme Court justice has ruled that permission or refusal of observers to attend trial hearings held inside prison facilities is not a matter for the presiding judges to decide. The ruling effectively means that judges holding trials inside Burma’s jails have no power over who comes in or goes out of the courtroom, which resides instead with the prison staff.
Justice Myint Thein delivered the ruling in the Supreme Court on 14 January 2011, in response to an application on behalf of Phyo Wai Aung, a young man arrested and accused in connection with deadly bomb blasts at a festival in Rangoon last April 2010. The Asian Human Rights Commission has been following his case closely, and has established a campaign webpage with full details (http://www.humanrights.asia/campaigns/phyo-wai-aung/).
In the course of the trial of Phyo Wai Aung inside the Insein Central Prison, the family has repeatedly been denied access to the hearings. When they put the obstructions of jail wardens to the judge, he told them that who was or was not allowed into the courtroom had nothing to do with him. The family applied to a higher court, arguing that the responsibility for access to the courtroom lies with the judge, and pointing out aspects of procedural law and judicial orders from earlier periods to support this assertion. When that court refused the application, they brought it to the Supreme Court.
However, in a demonstration of just how far logic has departed from the judicial system of Burma during half a century of military rule, Justice Myint Thein ruled that it was not the responsibility of the judge to give or deny permission to the relatives of the accused to enter the courtroom, and that if they wanted access they had to arrange it with the prison authorities. According to him, this state of affairs does not somehow contradict the principle of open court as set down in the relevant laws and orders, although he failed to explain as to why an apparent contradiction is not in fact a contradiction.
The ruling puts pay to the lie that a hearing inside a prison is still formally an “open” court that anyone can attend freely but that for security or other reasons cannot go on in a public place. Since the courtroom inside the prison is subject to the decisions and dictates of prison staff both as a matter of practice and–as the Supreme Court has confirmed–as a matter of principle, it is obvious that the courtroom inside the prison is nothing like the one outside at all, neither in reality nor even in the fictionalized legal world. Whereas a judge in a courtroom outside a prison in Burma may not conduct a trial fairly, at least she has nominal authority over the premises: by contrast, her counterpart inside a prison does not even have this. He is in an Alice in Wonderland scenario, perched in a courtroom over which he has no control, deciding on a case in which a decision has already been made: a non-judge occupying a non-courtroom in a non-trial.
In a related ruling on another application from the same defendant, the Supreme Court justice also ruled that the defendant is not entitled to copies of documents that the prosecution has lodged with the court as evidence. According to the defence, some 14 types of documents have not been made available to it for copying, and that this has prejudiced the ability of the defence attorney to represent his client. But in this matter, Justice Myint Thein ruled that where documents had been classified “secret” the trial judge had no authority to allow the defence to take copies of them, or other documents in the same file with them.
As in Burma the classing of a document as “secret” involves little more than the locating of the “secret” stamp and the affixing of it to the paperwork, this is an invitation for security forces to deny any documentation to defendants in court through the simple expedient of classification. It is a further abdication of judicial authority in favour of the police and military running these cases, and further evidence of the extent to which the courts in Burma are little more than clearing houses for the rubbish thrown at them from the agencies in the country that hold the real power.
That a hearing inside a prison in which nobody can get access and over which the prison authorities and police, not the judge, effectively preside can still be “open” and that a trial in which the defendant cannot obtain copies of the evidence against him can still be “just” speaks to the extent to which the judicial system in Burma has been reduced to nonsense and doublespeak. For the defendant in a single specific case like Phyo Wai Aung, the consequences are as tragic as they are predictable. For the society, they are no less damaging but more difficult to identify. However, if we look at the farce going on at the new “parliament”, where journalists rather than relatives who have been denied access, and in which sittings last for 15 minutes per day and representatives debate and decide nothing, it is not too hard to find parallels between the military management of this so-called legislature and its management of the country’s so-called judiciary.
