BURMA'S JUDICIARY: TRAPPINGS OF FAIRNESS WITH A

C O N F I D E N T I A L SECTION 01 OF 03 RANGOON 000457 SIPDIS STATE FOR EAP AND IO; PACOM FOR FPA E.O. 12958: DECL: 07/20/2019 TAGS: PGOV PREL PHUM BM SUBJECT: BURMA'S JUDICIARY: TRAPPINGS OF FAIRNESS WITH A HISTORY OF ABUSE REF: 08 RANGOON 873 Classified By: Political Officer Sean K. O'Neill for Reasons 1.4 (b) & (d) Summary -------------- ¶1. (C) Discussions with leading Burmese opposition lawyers paint a picture of a criminal justice system that often has the trappings of independence, but is in effect under the direction of the regime. The outcomes of politically-sensitive cases are predetermined, with civilian prosecutors and trial judges receiving their marching orders from the very top. Opposition activists generally may retain lawyers, but the lawyers are not always afforded adequate access to clients nor given the opportunity to mount a proper defense. The pace of the trials may vary; but a fundamental lack of due process pervades nearly all politically-sensitive cases. Supreme Court justices and senior officials in the Office of Attorney General are reportedly most often responsible for passing along and enforcing the orders of Burma's military rulers. Judges and prosecutors who refuse to carry out these instructions face discipline or termination of employment. End Summary. Civilian Prosecutors... -------------- ¶2. (C) Criminal prosecutors in Burma fall under the aegis of the Office of Attorney General (roughly the equivalent of the U.S. Department of Justice). (Note: In low level cases, local police can serve as prosecutors. End note). Prosecutors, including in politically-sensitive cases such as the current Aung San Suu Kyi (ASSK) trial, are typically District Law Officers, a relatively low rank that is equivalent to Assistant Director in the Burmese civil service (i.e. four ranks below Director General and six levels below Minister). According to opposition lawyer and former political prisoner Aung Thein (reftel),no special cadre of prosecutors specializes in political trials. Superiors in the Attorney General's office assign cases randomly. ...And Their Masters -------------- ¶3. (C) Aung Thein said trial prosecutors in politically-sensitive cases receive direct instruction from their superiors, including as high as the Deputy Attorney General. The Defense -------------- ¶4. (C) Aung Thein said opposition activists generally may retain lawyers when on trial. However, the lawyers are not always afforded adequate access to clients nor given the information and time necessary to mount a proper defense. Opposition lawyers note that even when they can mount a vigorous defense in politically-sensitive trials, the outcome is rarely affected. While the pace of trials may vary, lack of due process pervades nearly all politically-sensitive cases. In some cases, the regime completely denies access to lawyers. In July 2009, NLD members Ma Cho Cho and Ma Theingi Oo were tried and sentenced to two years' imprisonment without benefit of counsel. A lawyer initially received access, but police revoked it prior to trial without explanation. ¶5. (C) The regime allows some defense attorneys to represent clients - even political ones - without intimidation or fear of arrest. However, in rare cases authorities have harassed, and even imprisoned, defense lawyers. In October 2008, Aung Thein and two other lawyers were cited for contempt and jailed for four months after they objected to the lack of due RANGOON 00000457 002 OF 003 process afforded several of their clients (political activists who participated in the September 2007 protests). Another lawyer went into hiding to avoid imprisonment. The Supreme Court ordered the three jailed lawyers disbarred after their release. Aung Thein noted to Poloff that his case was unusual. The majority of defense lawyers can practice without fear of arrest. He added that the order to jail him came straight from the Supreme Court, rather than from a lower court judge. The Judiciary on Paper -------------- ¶6. (C) Burma has four levels of courts: the Supreme Court, State and Divisional Courts, District Courts, and Township Courts. The Supreme Court is the court of final appeal in criminal and civil cases. The State and Divisional Courts generally function as mid-level appeals courts, but also have original jurisdiction to conduct trials in cases involving crimes against state sovereignty, such as treason. District Courts conduct criminal trials in which the possible punishment exceeds seven years' imprisonment. Township Courts hear cases in which the maximum punishment is seven years' imprisonment or less. (Note: Aung Thein stated that although the maximum possible sentence in the ASSK trial is five years, the Chief Justice of the Supreme Court ordered the Rangoon North Special District Court to conduct the trial due to the sensitivity of the case. End note). Criminal trials are typically conducted by one or two judges who adjudicate all issues of fact and law. There are no juries and the trial judges determine both guilt and punishment. ¶7. (C) According to the Burma Gazette (the GOB's official register),District Court trial judges are career civilian jurists who hold a rank equivalent to a Deputy Director in the civil service. They earn a fixed salary of up to 110,000 Kyat (approximately USD 110) a month. Nyan Win, an NLD spokesman and one of ASSK's lawyers, told us that many judges are corrupt and extort bribes from litigants. He does not believe the regime provides extra compensation to judges who participate in politically sensitive trials. ¶8. (C) The Special District Court at Insein Prison which has presided over the trials of numerous political prisoners (including ASSK) is comprised of judges selected from Rangoon's four judicial districts (North, South, East, and West). Aung Thein explained that the Special Court is technically an extension of whichever District Court has personal and subject-matter jurisdiction in the case. The Special Court is unique due to its prison venue and ability to exclude the public, but it does not technically have any judicial powers beyond those of the normal District Courts. The Judiciary in Practice -------------- ¶9. (C) While trial judges reportedly exercise some independence in non-political cases, our legal contacts tell us that judges in politically-sensitive cases ultimately take direction from top levels of the regime. Aung Thein informed us that his former law colleagues who are now judges say regime leaders issue their instructions to trial judges through the Supreme Court, which has power to discipline or even fire lower court judges. The opposition lawyer reported that in past political trials in which he was involved, including that of 88 Generation Students member Min Ko Naing, District Judges had to brief their superiors in the Divisional and Supreme Courts following each day's trial proceedings. Divisional or Supreme Court judges would then convey guidance on how to proceed. A former university colleague of Aung Thein who is now a prosecutor confided to him that prosecutors and senior officials from the Attorney Generals' office would also sometimes attend these briefings to offer "advice" to the trial judges. RANGOON 00000457 003 OF 003 ¶10. (C) While a flow of instruction downward from within the judiciary may be the usual practice in political trials, one former political prisoner, now a civic activist, told us that, in his trial just before sentencing, the judge walked from the Insein special courtroom outside to a car to receive final instructions directly from a military officer. ¶11. (C) Both Nyan Win and Aung Thein reported that, as with prosecutors, there is no special "political bench." Trial judges in politically-sensitive cases are assigned from the same pool of jurists as in all other criminal cases. Both of the judges in the ASSK case (U Thaung Nyunt and U Nyi Nyi Soe) also presided over the trials of a number of other political prisoners, including Min Ko Naing. However, Aung Thein observed that with only three judges assigned to the Rangoon North District Court, the odds of a judge being involved in more than one Rangoon-based political case are high. Since the outcomes of these cases are predetermined and the judges are instructed how to rule, there is no need for the regime to select particular judges in order to achieve its intended result. ¶12. (C) When asked what would happen if a trial judge were to disobey instructions in a political case, Aung Thein said he is not aware of any instances. He believes any judge who disobeys instructions would promptly be fired but likely not jailed. Nyan Win relayed a story of a trial judge who was reportedly transferred to a remote section of the country because she handed down a lighter sentence than instructed in a case against an NLD member. Aung Thein observed that, when it comes to important political cases, "there is no such thing as a tough or easy judge" since all of them will carry out the regime's will. Comment -------------- ¶13. (C) Burma's judicial system usually adheres to the trappings of due process. Often, though, the well-educated lawyers, prosecutors, and judges go through the motions in what is essentially a charade designed to support the regime's assertion that it is simply following the law. In fact, the top military leaders use the judicial system and most of its players as instruments for selectively enforcing draconian laws to keep opposition elements in check. DINGER