A relative of a young man accused of bombing the traditional New Year festival in Rangoon during 2010 has again petitioned the Supreme Court for the trial to be transferred to another judge and for the case to be heard in accordance with law. The petition comes after the police officer in charge of the investigation into Phyo Wai Aung submitted a statement to court in which neither evidence nor law was anywhere to be found.
On 21 February 2011, the defence attorney cross-examined Police Captain Win Maung about his testimony against Phyo Wai Aung, whose case the Asian Human Rights Commission has been following closely (for full case details: http://www.humanrights.asia/campaigns/phyo-wai-aung/). Win Maung had delivered his testimony by reading directly from about 80 pages of notes on the case to the courtroom inside the central prison where the trial is being conducted, which is in violation of the Evidence Act, since reference to documents in this manner is prohibited except where request is made to the court to refer to such records as are necessary to refresh the memory of the witness. The police officer made no such request, and did not use the documents to refresh his memory, but just read verbatim.
Under cross-examination, it became clear that the reason the officer needed to refer to the documents in this manner was because he could not be expected to remember any details of the case since he had not himself conducted the investigation. Every piece of purported evidence that he presented to the court was based on the work conducted by other police, and members of the military. When asked about whether or not he had seen any of the evidence or had conducted any of the inquiries, in each instance he admitted that he had not. As such, his entire testimony consisted of hearsay, since it was based completely on what he had been told by others; and as such, the defence attorney could not cross-examine him on any of the purported facts that he presented because in each instance he could deny knowledge on grounds that it was not he who conducted the investigation.
On top of this, the police officer made numerous ambiguous and obscure statements in his testimony that he was unable to explain. For example, he said that investigators of the bombing had been in contact with the representative of the Australian Federal Police in Rangoon regarding methods for examination of exploded and unexploded materials; however, when pressed by the defence lawyer, he could not say on what day these contacts were initiated. When the lawyer asked whether the explosives data centre that would be used in connection with this inquiry was in Australia or Burma, the police officer said that it was in Burma; but when asked as to who had responsibility for the centre, again he said that he did not know. When the lawyer pointed out to him that in his statement to the court he had referred to three pieces of analysis from this centre about which he knew nothing, he said that he had received the analysis via the police chief, and for this reason did not know from whence the analysis had come.
Evidently, it should be the police chief and the bomb analysis experts from the data centre and military who should be giving the testimony in court, so that the facts of how they collected and analyzed the purported evidence might be properly put to the test. Unfortunately, there is little possibility of these persons appearing, since the purpose of this trial is not, after all, to give the accused a fair hearing but to assign guilt, and for this the presentation of actual evidence is unnecessary and even unhelpful. The idea that a senior person like the police chief himself might appear to give evidence in court is also impertinent, as two lawyers in Burma learned a couple of years ago, when they were themselves charged for attempting to call the information minister to appear as a witness. One of the lawyers was imprisoned for six months and the other fled the country.
The approach of the authorities in Burma in the case of Phyo Wai Aung–and others like it–is to apply law without it actually applying. The existence of the Evidence Act and other laws that were introduced to the territory during colonial times serves as part of a happy fiction that the country is somehow still part of the community of common law nations and has some claim to the rule of law. For instance, in its 2010 report to the United Nations as part of the Universal Periodic Review process, the government of Burma stated in paragraph 19 that, “[The] Criminal Procedure Code, Civil Procedure Code and Evidence Act were enacted in Myanmar [a] long time ago. Courts have been adjudicating on criminal and civil cases under these provisions.” The statement is correct only inasmuch as the provisions exist on paper and are formally acknowledged by judges: the actual manner in which hearings are conducted departs so violently from the provisions of these laws, not only in cases of the sort before Phyo Wai Aung but in ordinary criminal cases also, that in many instances it would be hard to infer the existence of a realm of law at all.
