In one of his two latest reports to the UN Human Rights Council, the Special Rapporteur on Myanmar (Burma) has written that:
“The Special Rapporteur is seriously concerned at the continued misuse of the legal system [in Burma] which denies the rule of law and represents a major obstacle to securing the effective and meaningful exercise of fundamental freedoms. The Special Rapporteur regrets to observe that the lack of independence of the judiciary has provided a ‘legal’ basis for abuses of power, arbitrary decision-making and the examination of those responsible for serious human rights violations.”
This “legal” basis for abuses has become even more exacerbated in the months since the crackdown on the nationwide uprising of last August and September. The Asian Human Rights Commission has in recent weeks issued urgent appeals on a number of cases of special concern relating to those events, including the arbitrary detention of Khin Sanda Win and Ko Thiha.
Among the other cases that it is following closely is the case of Sithu Maung and six others, which is currently going before what can only be very loosely described as a court in Rangoon. Sithu Maung (21), Thein Swe (40), Myo Thant (41), Ye Min Oo (23), Ye Myat Hein (18), Kyi Phyu (30) and Zin Linn Aung (18) have–like Ko Thiha–been charged with sedition for allegedly inciting the events of last year.
Like Ko Thiha and a string of other persons accused of crimes that purportedly threaten the military regime in Burma, these seven men are being tried in a closed court within prison confines, contrary to the principle of open court established under both domestic as well as international law.
Under the latter, it is upheld especially by article 14 of the International Covenant on Civil and Political Rights, whereby, “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…”
Although Burma has never joined the treaty, even under Burma’s own standards, the 2000 Judiciary Law provides in section 2(e) that, “The administration of justice shall be based upon… dispensing justice in open court unless otherwise prohibited by law”.
There are good reasons for this principle. Above all, judicial accountability depends upon outside scrutiny. Where things go on behind closed doors in prisons, there is no justice but only its mockery. Where justice is mocked, the courts are ridiculed; judges lampoon themselves. Unfortunately, such courts of burlesque are typical of Burma today.
Notwithstanding, each court has it within its power the opportunity to do otherwise, not least of all in cases where the charges against the accused are harsh, the punishment severe.
The charge of sedition carries a life sentence. Those accused of it deserve the right to defend themselves, in view of the public: a right that even in Burma exists in principle. The Asian Human Rights Commission thus calls for the case of Sithu Maung and his co-defendants should be transferred to a court where anyone can hear it, and asks that if even this much cannot be done, why bother holding it at all?
