“The military, not the court decides”

Thein Than Oo, practicing lawyer, Burma

In this interview Thein Than Oo, a practicing lawyer in Burma, talks about his arrest and detention on two occasions, and his disbarment from legal practice. He resumed his practice after his license was reinstated. This interview was conducted by Basil Fernando, a member of the editorial board of article 2

article 2: Could you please tell us how long you have been engaged in legal practice in Burma and how much time you spent in detention?
Thein: First of all, as a university student I was sentenced to seven years imprisonment in Insein Jail. As a lawyer in 1990, I was sentenced to 14 years, and the third time during the Saffron Revolution, I was detained again.
article 2: All this happened because you protested against the military government?
Thein: Yes. This is my struggle against the military junta.
article 2: With all your long years of experience with the legal system in Burma, what is your opinion about it?
Thein: From my point of view, Burma’s legal system and judicial system are seriously corrupted and dependent. According to the 2008 constitution, the judiciary is under the military. The legal system is therefore not competent, not independent and not impartial.
article 2: So you are saying that the judiciary is controlled by the military directly?
Thein: Yes. According to the constitution, the judges are selected by the President.
article 2: Is it correct to say that most of the judges are themselves people from the military?
Thein: Yes. At the Union Supreme Court, four out of seven judges are former military personnel.
article 2: How about other courts?
Thein: Comparatively rare, but all the courts are under the military.
article 2: If there are some cases where the military has interest and the government has interest, will the judges feel free to give an independent judgment?
Thein: No, they cannot. We can’t get (an independent judgment). If the government or military is interested, there will be no justice. In my experience, in the Mandalay riot cases, five out of 11 accused were clearly innocent and the court knew very well about that. Even one plaintiff’s witnesses were told about that. There was no direct or indirect evidence to indicate they were related to the crime or killing, but they were (still) sentenced to ten years imprisonment. I believe this is not a decision by the district judge of Mandalay but from the military.
article 2: So innocent people are being convicted. Is this related to their statements given during interrogation and torture, admitted as evidence?
Thein: Yes, in some cases. In this case (Mandalay riot) though, no statements were given to the police or military intelligence. However, in many cases there are court practices that they accept statements (obtained through torture) as legal evidence.
article 2: Is it correct to say that in many cases they are sentenced only on such evidence?
Thein: Yes, there are so many cases based only on that evidence. In my experience, in one case, State vs Lataw Baran Shaung, the victim was a Kachin. He was arrested under the Unlawful Association Act section 17(1). In his case, the plaintiff witnesses are police and military intelligence. There were no witnesses who were under pressure. But they set up the case in accordance with the testimony of the interrogators or statement to the military intelligence. The court accepted it. This is not in accordance with law. According to the Criminal Procedure Code section 162 and Evidence Act section 6, these statements can’t be used in trial. But the court accepted them and sentenced him to two years imprisonment.
article 2: Is the fabrication of charges quite common?
Thein: No, such cases are rare.
article 2: You work on mostly political cases?
Thein: Half of the cases that I handle are politically oriented cases, like land grabbing and political dissidence.
article 2: So in land grabbing and political dissidence cases, is there a possibility of getting an acquittal if people are innocent?
Thein: I have no experience of acquittals. Only in one case, of Phyu Hnin Htwe, a student leader who helped the Letpadaung Copper Mine farmers. She was arrested under Penal Code sections 496 and 498 but the case was withdrawn. It is the only case in my experience where the victim was released; all other political prisoners are sentenced.
article 2: Are things changing now?
Thein: Slightly changing. Other sectors are same as under the former government, but in the media sector there are some changes. We can write or denounce the military or dictatorship, and former military General Than Shwe. So this is progress in the media.
article 2: In future what do you think should be done to improve the judiciary as well aslegal practice?
Thein: All problems and all issues in Burma are based on the 2008 Constitution. We need to amend the Constitution. If we can’t do it, the judiciary also cannot be (expected) to be good.
article 2: So what you mean is that the 2008 Constitution makes the judiciary dependent on the military? Unless there is change, an independent judiciary will not come about? So you are strongly for the change of this constitution? Thein: Yes. This is the vital question of Myanmar.
article 2: What do you think about legal education these days?
Thein: Not only legal education, the entire education system is very poor and of a very low standard.
article 2: So is there any attempt to improve it, particularly legal education?
Thein: Now, academic personnel and we lawyers are trying to upgrade legal education.
article 2: In your view, would there be a real big change if retired military personnel can no longer be judges?
Thein: Yes. The judiciary must be independent, so judges should be civilians, academics or intellectuals who have judicial experience. Judges must not be former generals. We only want that.
article 2: Do you see more and more independent lawyers emerging?
Thein: More and more activist lawyers are emerging and now we are trying to form our National Bar Association, and we are to assemble to protest against the oppression of lawyers.article 2: So there is the special attempt to fight against oppression of lawyers?
Thein: Yes, yes.
article 2: In the past, you were also disbarred, as were several other people. Now, has it been removed (license to practice law reinstated)?
Thein: Yes. But in recent times there are over 200 advocates or Supreme Court Lawyers who are still disbarred. It is not in accordance with law. They had no rights to defend themselves.
article 2: So the Bar Association is trying to remove that?
Thein: Yes.

article 2: Although things are difficult, there are many people who fight against the system?
Thein: Yes, indeed.

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