BURMA: ASSK TRIAL: WHAT NEXT?

C O N F I D E N T I A L RANGOON 000475 SIPDIS STATE FOR EAP, IO, AND CA/OCS/ACS/EAP; PACOM FOR FPA C O R R E C T E D C O P Y(CHANGE PAR 10 CLASSIFICATION TO CONFIDENTIAL) E.O. 12958: DECL: 07/29/2019 TAGS: CASC PGOV PHUM PREL BM SUBJECT: BURMA: ASSK TRIAL: WHAT NEXT? REF: RANGOON 472 Classified By: P/E Chief Jennifer Harhigh for Reasons 1.4 (b) & (d) Summary -------------- ¶1. (C) Aung San Suu Kyi's attorneys expect judges could postpone announcement of a verdict in her case for up to two weeks from July 31. They plan to appeal a guilty verdict, a process composed of three potential stages that could extend for 3-4 months. ASSK, in a personal statement provided by her attorneys (full text para 9),pleads the cause of rule of law, justice and constitutionalism, essentially arguing that her baseless detention for over five years, rather than the current prosecution, is the base of the real injustice. According to her lawyers, she expects to be convicted and returned to house arrest. The regime's New Light of Myanmar newspaper on July 29 carried an op-ed clearly threatening serious contempt of court consequences for anyone who criticizes Burma's judicial process. End summary. ASSK Legal Team: Verdict May be Postponed -------------- ¶2. (C) ASSK attorney and National League for Democracy (NLD) spokesman Nyan Win told Poloff July 29 that he expects the court may postpone the scheduled July 31 announcement of a verdict, possibly for up to two weeks. (Note: State-run New Light of Myanmar (NLM) reported July 29 what we heard in court: that the judges fixed July 31 for announcement of all the verdicts. End note.) Nyan Win said attorney U Kyi Win (Neville) shares the assessment of a likely postponement; they have concluded the regime probably does not want to announce its verdict prior to the anniversary of the 8/8/88 popular uprising. Opposition lawyer Aung Thein, who is not involved in the ASSK case, independently speculated that the verdict will be postponed for up to two weeks. He believes regime officials are gauging the potential reaction of the international community, the UN, and the Burmese people before making a final decision. ¶3. (C) Nyan Win said based on the law and the merits of the defense's case, ASSK should be acquitted and released. Nevertheless, he told us she believes the most likely outcome is a conviction, followed by return to house arrest. He believes any potential sentence will be announced at the same time as the verdict. Lawyers Already Planning Appeals -------------- ¶4. (C) Regardless of when judges pronounce a verdict, ASSK's legal team will appeal if she is found guilty. Her lawyers have already prepared appeal documents, pending the addition of a "grounds for appeal" yet to be determined. According to both Nyan Win and Yettaw's attorney, there are three stages in the appeals process, as follows: 1) Appeal at the Divisional Court; approximately two-three weeks' duration; 2) "Revision" at the Supreme Court level; approximately one month duration; 3) Appeal to a "Special Supreme Appeals Court," approximately two months' duration. (Note: According to Nyan Win, this is a two-stage process in which two Supreme Court judges would hear the case and decide whether to admit it, followed by consideration of the case by a panel of three Supreme Court judges. End note.) ¶5. (C) According to Nyan Win, ASSK's legal team will exercise all options for appeal. The entire process could last 3-4 months. Other Possible Scenarios -------------- ¶6. (C) Nyan Win noted there are several scenarios in which ASSK could be freed despite being convicted. The District Court could choose to convict her and impose a fine without prison time. Alternatively, if the District Court hands down a prison sentence, the Divisional Court (the next highest level) has the right to commute or suspend the sentence almost immediately, even without defense attorneys filing an appeal. Junta's Mouthpiece Threatens Would-Be Critics of Trial -------------- -------------- ¶7. (U) The state-controlled "New Light of Myanmar" newspaper on July 29 used an op-ed to threaten would-be critics of the trial or judicial process. After criticizing the U.S. and European legal systems, the op-ed cites three scenarios that could prompt authorities to charge an individual with contempt of court. These include (1) criticism of the court and court proceedings; (2) disturbing court activity, for example taking photos of the trial in progress; and (3) writing possible predictions of the outcome of a trial or attempting to influence the court's judgment. ¶8. (C) Poloff asked Nyan Win if he is concerned about potential contempt of court charges, given ASSK's legal team's frank comments to the media. Might the contempt of court law conceivably put ASSK herself, NLD members, pro-democracy activists, or foreign diplomats under further legal scrutiny? Nyan Win replied that he never commented specifically on the decision of the court; on the contrary he has said that based on the law he expects she would be acquitted. He added that ASSK's comments that the outcome of the verdict will be "painfully obvious" (reftel) do not construe contempt of court. (Note: ASSK's lawyers have stated publicly that they worry the judges are biased. Some NLD members have been equally outspoken, predicting conviction by a flawed system. It is always possible the regime would see resident-diplomats' critical comments to the media as crossing a line, as well. End note.) ASSK: The Big Picture -------------- ¶9. (C) Nyan Win provided us with a copy of ASSK's personal statement (written in English) on the trial, which urges consideration of the big picture, with the heart of the problem being the decision to detain her baselessly in the first place. (Note: Charge observed ASSK writing furiously during the July 28 court session. We believe this statement flows from those notes. End note.) Nyan Win said he translated the statement into Burmese for the court. Nyan Win did not indicate if/when the NLD intends to make ASSK's statement public, thus we have classified this paragraph. Begin text: "The Court will pronounce on the innocence or guilt of a few individuals. The verdict itself will constitute a judgment on the whole of law, justice and constitutionalism in our country. On both occasions of trespass into the grounds of my house, the one on which this present case is constructed as well as the one which took place on 30 November 2008, I acted without malice simply with intent to ensure that no one concerned should suffer any adverse consequences. An approach that placed a premium on discernment and a sense of responsibility, rather than on imputation, would have accorded with the concept of law as the guardian of security and harmony in civilized societies. The charges moved against me can not be assessed correctly or adequately without enquiry into the legality of the process by which I was confined to house arrest for more than five years, Throughout, my lawyers have been scrupulous in their efforts to procure due-process which is critical to the rule of law. Equally critical is the principle that justice must not only be done but seen to be done, clearly and unequivocally. This lawsuit has brought to light anomalies in the interpretation and application of constitutional provisions, and further, raised questions about the validity of the constitution itself. Thus it is germane to the very conception and character of government and the right of citizens. As I plead "not guilty" to the charges before this court, I would also plead the cause of the rule of law, flawless in its impartiality, of justice, irreproachable in wisdom and benevolence, and of constitutionalism as a bulwark of lawsuit and just governance." End text. Comment -------------- ¶10. (C) Ultimately, the insular, paranoid generals in Nay Pyi Taw will do in ASSK's case what they judge is in their best interests. Most observers, and ASSK herself, believe a guilty verdict is the almost inevitable scenario. If so, the appeal process is likely to drag on for some time. Still, it is worth keeping in mind that, if the regime should so calculate, ASSK could be released, either conditionally or unconditionally, at any stage -- during announcement of the verdict, following the announcement, or following up to three levels of appeal. Of course, she could just as easily be re-arrested at any time after release. We believe the USG should continue to place on the table both carrots for good behavior and sticks for flagrant disregard for rule of law and human rights. In addition, no matter what the outcome of the ASSK trial, we need to continue to press the GOB to release all remaining political prisoners. That would disprove the regime's misperception that we are concerned only with the fate of ASSK and would acknowledge that a number of others now in prison are also potentially very important players in Burma's political future. DINGER