“Our Numbers Are Dwindling”: Myanmar’s Post-Coup Crackdown on Lawyers
Summary
In a courtroom, I now have to worry about not getting myself detained rather than speaking the truth. This is especially true when I have to represent political cases. Everyone at the court knows who I am, and the court has all my credentials and personal information. The SAC [military junta] can detain me at any time, and they can and will make up any reasons they want.
—Yangon-based lawyer, October 11, 2022
Since the February 1, 2021 military coup in Myanmar, the State Administration Council (SAC) junta has arbitrarily detained thousands of anti-coup activists and critics in mass arrests and prosecuted them in summary trials that fall far short of international standards. Among those wrongfully convicted are protesters, journalists, human rights defenders, and politicians from the ousted National League for Democracy (NLD) party.
The severe deprivation of liberty is among the grave crimes committed by the junta, as well as murder, torture, enforced disappearance, and other inhumane acts causing great suffering. These have been committed as part of a widespread and systematic attack on the population, amounting to crimes against humanity.
In the face of these abuses, dozens of lawyers in Myanmar have attempted to represent those arrested and provide them a legal defense. At every turn they have faced systematic obstacles imposed by military authorities and restrictions impeding their work. Making matters worse, they themselves have faced threats, arbitrary arrest, detention, and prosecution, and in some instances, torture and other ill-treatment.
Most notably, the junta has created “special courts”—closed courts inside prisons to fast-track politically sensitive cases. As a result, many cases that would have been heard before regular criminal courts before the coup, are now under the jurisdiction of these junta-controlled special courts.
Inside special courts, authorities have imposed numerous severe restrictions on lawyers including prohibitions on private communications with clients before hearings. Lawyers said that junta officials frequently obstructed or prevented them from carrying out their professional duties, denying suspects their rights to due process and a fair trial.
In the 47 townships in which the junta has imposed martial law, the junta has also convened military tribunals to adjudicate criminal cases involving civilian defendants. The military tribunals also typically operate in prisons. Suspects may not have access to a lawyer, and trials are summary and invariably result in convictions and often heavy sentences.
Lawyers told Human Rights Watch that the trials in the special courts are disorganized and chaotic, with often only a few lawyers representing hundreds of defendants. Junta authorities have threatened and harassed lawyers so successfully that few have been willing to put themselves at risk of further surveillance and intimidation and many have stopped taking cases.
The junta’s revisions to numerous laws since the coup have added to the systematic obstacles for lawyers, forcing them to attempt to represent their clients charged under the new criminal offenses and in proceedings that are closed to the public. These changes to the law have further eroded the already minimal human rights protections existing in Myanmar. Most detainees facing trials in connection with protests have been charged under the amended section 505A of the Penal Code, which criminalizes comments or actions that call into question the legitimacy of the coup or the junta administration and is punishable by up to three years in prison.
The junta has also increasingly targeted criminal defense lawyers for arrest. Some have been subjected to ill-treatment and torture by junta security forces in detention. The authorities have arrested lawyers as they leave the special courts inside prisons after defending their clients. In Mandalay in April 2022, for instance, police detained senior attorney Ywet Nu Aung as she left a hearing inside Oh-Bo prison, where she was representing the deposed Mandalay NLD Chief Minister Zaw Myint Maung.
In December 2022, a special court sentenced Ywet Nu Aung to 15 years in prison with hard labor under a junta-amended section of the Counter-Terrorism Law. She was accused of helping to provide financial support to anti-junta militias. Her colleagues believe that the fabricated charges were aimed at curbing her defense of senior NLD government officials.
The Assistance Association for Political Prisoners reported that as of April 2023, at least 32 lawyers remain detained in pretrial detention or are serving sentences under a range of laws including section 505A of the Penal Code, which prohibits criticism of the junta, amended provisions of the Counter-Terrorism Law, Unlawful Associations Act, and the colonial-era Explosive Substance Act. The actual number of lawyers who have been detained since the coup is likely much higher, but as this report shows, the ad hoc way charges are filed makes it difficult to ascertain the numbers of those in custody.
One lawyer who spoke to Human Rights Watch shortly after her release from prison said police blindfolded her, placed her in stress positions, and deprived her of food and water during interrogation.
Several sources familiar with the situation of Tin Win Aung, a high court lawyer from Mandalay Region, said he suffered a broken arm and leg, and had to have a feeding tube inserted into his stomach from the injuries he sustained during beatings by security force personnel during pretrial detention. One lawyer with knowledge of his case said: “Our colleagues in Mandalay were tortured. Tin Win Aung was beaten very badly, and they repeatedly rolled a heavy wooden stick over his shins and legs. We got all the news from other inmates. Everyone thought he was on the brink of death.”
Human Rights Watch found an emerging pattern of intimidation and harassment against defense lawyers representing political detainees such as former members of parliament, deposed government officials, and anti-junta activists. The 19 defense lawyers to whom Human Rights Watch spoke, all said they had experienced intimidation and surveillance by junta authorities. In some cases, the junta authorities appear to have targeted lawyers in reprisal for their representation of activists charged with sedition, incitement, or terrorism.
Many of the detained lawyers also face charges under section 505A but can face multiple charges under various amended junta legislation. The junta has at times shut down mobile internet data and restricted movement by extending states of emergency and expanding areas under martial law.
Lawyers describe a criminal justice system that is in a state of chaos, where the number of lawyers willing or able to work under junta conditions is dwindling.
By interfering with the ability of lawyers to access their clients and present a legal defense, as well as arresting and prosecuting them for doing the job, Myanmar’s junta is violating the human rights of lawyers and thousands of defendants who have the right to legal counsel. As the UN Human Rights Committee stated in 2007, commenting on the right to equality before courts and to a fair trial, “The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way.”
Along with the adoption of criminal laws and procedures that do not meet international due process standards and the elimination of an independent judiciary, the junta’s attack on lawyers has deprived everyone in Myanmar the right to a fair trial and equal protection under the law.
Foreign governments and regional organizations concerned about the disastrous human rights situation in Myanmar should adopt a range of measures against the military junta, including targeted sanctions against junta members implicated in abuses and against military-linked companies. They should support United Nations Security Council resolutions imposing an embargo on weapons and lethal assistance to Myanmar and referring the situation in Myanmar to the International Criminal Court. In pressing for the release of political prisoners, all governments should raise the harassment and jailing of lawyers, and seek to improve their ability to defend those imprisoned, often for years, for peacefully protesting the junta’s abuses.
