As junta squeezes courts, Myanmar’s lawyers are forced to face their worst fears

Mei Aye, a lawyer who visits Yangon’s Insein Prison at least twice a week for court appearances, has a ritual that she follows on the days that she has to pass through the gates of Myanmar’s most notorious detention centre.

The first thing she does is tell someone she trusts about her unfinished business. And then she makes a point of saying goodbye to all her loved ones, mindful of the fact that she might not see them again for a very long time.

She says she does this as a way of dealing with the crippling anxiety she often feels about the perils of her job defending political prisoners. This is because she knows all too well how easily she, too, could end up behind bars.

“I have to do these things in case I don’t get to come home from work one day. I never know when I will be taken away to an interrogation centre,” she explains.

As a defence attorney with 10 years of experience, Mei Aye is no stranger to prisons, which she says hold no real terror for her. But interrogation centres are another matter—she has seen too many of her clients after they have emerged from them not to live in fear of what happens behind their closed doors.

I never know when I will be taken away to an interrogation centre

Many are badly bruised or scarred, she says, and some even have open wounds that testify to the brutality of the regime’s techniques for extracting information.

“I’m not a doctor, so I can’t really say how serious their injuries were. But I could see that they had been really severely beaten. And I am afraid of having to face the same fate,” she says.

Currently working on 28 political cases, Mei Aye deals with clients facing charges that range from incitement to terrorism and possession of explosive devices. In the eyes of Myanmar’s military, that makes her an object of suspicion, too.

She says her anxiety lifts only after the court hearings have begun. But as soon as they end and she starts preparing to leave the prison, the feeling of dread returns. And it stays with her for at least the next two days, filling her mind with vivid images of what might await her.

“I keep seeing the same scene over and over again: soldiers kicking the door open, rushing in, and torturing me in my own home. I sometimes find myself wondering how many blows I would be able to take,” she says of her state of mind during these periods.

But there is nothing irrational about these fears. While there is no official count, members of Myanmar’s legal community say that at least 20 lawyers have been detained since last year’s coup to face charges related to those of their clients.

‘Worse than ever’

Since seizing power in February 2021, the military regime headed by Min Aung Hlaing has taken over all three branches of government—executive, legislative, and judicial. Under its rule, the independence of judges has ceased to exist.

In February, a year after the military takeover, the International Commission of Jurists (ICJ) reported on the total collapse of Myanmar’s courts as instruments of justice. Among the issues it addressed were the treatment of lawyers—especially those representing political dissidents.

“Lawyers are often threatened in front of judges and are actually arrested in courtrooms for asking witnesses questions about torture and ill-treatment their clients have experienced or for requesting fair trials,” the report said.

Lawyers join an anti-coup demonstration in Yangon on February 8, 2021 (Myanmar Now) 

According to a retired judge who served under Myanmar’s previous military regimes, the situation now is worse than it has ever been. While the courts have never been free or fair under military rule, it was never normal in the past for lawyers and judges to face such persecution, he said.

They think they can hold onto authority if they can cut off all support for protesters who have become political prisoners

One major constraint facing lawyers involved in political cases is that the charges against their clients are usually laid by members of the police force. This puts lawyers at risk of provoking people who have the power to arrest them.

“Lawyers can’t avoid questioning the plaintiffs, who are usually police in these cases, if they are going to defend their clients’ rights. The police don’t like that, so they often pressure and threaten to arrest those lawyers,” said the former judge.

Some of the lawyers now behind bars represented high-profile figures from the ousted National League for Democracy (NLD) government, as well as prominent dissidents.

This includes Ywet Nu Aung, a Mandalay-based lawyer who was arrested in April following a hearing for Dr. Zaw Myint Maung, the deposed chief minister of Mandalay Region. Now being held at Obo Prison, where she was first taken into custody, she faces a life sentence on terrorism charges. 

Ywet Nu Aung is seen in front of the Dakhina District Courthouse in Naypyitaw in 2019 (Myanmar Now)

In June, three more lawyers were arrested in Monywa, including Moe Zaw Tun, the defence attorney for Myint Naing, a member of the NLD’s central executive committee who served as Sagaing Region’s chief minister until his arrest just days after the military takeover. Moe Zaw Tun also represented Wai Moe Naing, a Monywa-based protest leader detained since last April after being hit during a protest by a vehicle driven by regime forces. 

Tin Win Aung, another lawyer who defended Wai Moe Naing, was arrested at Obo Prison on June 29 along with two other Mandalay-based lawyers. During his interrogation, he suffered multiple injuries, including a broken arm, according to sources close to the victim.

No one else to turn to

With so many reports of lawyers being locked up, it is little wonder that some avoid prison courts altogether, while others have gone into hiding. And this has had the desired effect of further isolating critics of the regime.

“They think they can hold onto authority if they can cut off all support for protesters who have become political prisoners,” said Mei Aye.

It is for this reason alone that Mei Aye refuses to stop her work, which she knows perfectly well is not likely to achieve any meaningful justice as long as the junta remains in power.

Since moving to Yangon in 2018, she has worked as a legal advisor for various organisations and offered her services free of charge to individuals arrested for political offences. Many of her clients have had no one else to turn to.

Mei Aye vividly recalls one case in particular. She said she received a call at around 11pm one night several months after the coup. At the other end was a panic-stricken woman whose first words were, “Please help my son. He’s been taken by the military.” 

At the time, there was a 10pm curfew in place, and the woman knew that if she left her home to seek help, she would also be arrested. So she called Mei Aye, who had posted her telephone number on social media, and described what had happened just moments earlier.

“She didn’t know what else to do. She had just witnessed her son being beaten and dragged away. Lawyers don’t usually get emotional in front of clients, but I cried. I couldn’t stop my tears, because we both felt the same helplessness,” she said.

The next morning, the woman called again. She asked Mei Aye to come to the South Okkalapa police station, where her son was being held along with seven other youths. 

When she reached the police station, Mei Aye saw a group of exhausted-looking mothers who had been forced to stand for hours as they repeatedly asked the officers on duty for permission to see their detained children.

Lawyers don’t usually get emotional in front of clients, but I cried. I couldn’t stop my tears, because we both felt the same helplessness

In the end, their persistent requests were denied, and even Mei Aye was not allowed to see the prisoners she had agreed to represent. However, she was told that she could send them food and clothing, which made their mothers immensely happy, as it indicated that, if nothing else, their sons were still alive.

Another reason lawyers have been in the crosshairs of the regime is that they have often served as the only means for prisoners to communicate with the outside world. 

This is why Khin Maung Zaw, the lawyer who leads the legal team defending a number of Myanmar’s ousted civilian leaders, including President Win Myint and State Counsellor Aung San Suu Kyi, has been ordered not to speak to the media. 

Lawyer Khin Maung Zaw (Myanmar Now)

Even lawyers who are not under gag orders know that they are at risk if they convey messages from their clients, as they can also be charged with “incitement through spreading false news” if they disclose information about the treatment of prisoners or any other information the regime wants to conceal.

Verdicts ‘from above’

Since the coup, most political cases have been tried in “special courts” set up inside prisons. These makeshift “courtrooms” typically consist of curtained-off spaces in large halls or other prison buildings, usually about 10”x10” in area and with little more than a table and two or three chairs for furniture.

With thousands of trials to conduct against its opponents, the regime has also reduced the role of the people involved in its legal proceedings to the bare basics. Lawyers are allowed to attend hearings only to maintain the pretence of due process.

Judges play an even more perfunctory part in the junta’s sham justice system. They never intervene when prison officials or intelligence officers eavesdrop on conversations between lawyers and their clients, and they invariably pass judgments that are predetermined and “directed from above.”

Lawyers say that judges simply read out verdicts that arrive in sealed envelopes, eliminating the need to actually adjudicate in cases that rarely have any merit to begin with.

“Some judges like living under a dictatorship. They can just do as they please. They no longer feel any need to examine cases,” said one lawyer who has taken part in several post-coup trials.

The treatment of prisoners is also routinely ignored by judges. According to Mei Aye, many of her clients have appeared at hearings covered in cuts and bruises after brutal interrogation sessions, but judges simply turned a blind eye to this obvious evidence of abuse.

“I would submit a request for the judge to acknowledge and record the injuries of the defendants inflicted by the authorities, but they would never respond to those requests. Some judges even told me to stop bringing it up,” she said.

But as bad as Myanmar’s ordinary courts have become, they are still not as arbitrary or oppressive as the military tribunals that handle cases in areas that have been placed under martial law.

These tribunals have been empowered to preside over cases involving alleged violations of 23 separate provisions of the Penal Code. The proceedings are heavily guarded by junta troops, but the accused lack even the most basic legal protections. All cases are handled by military lawyers and military judges, who decide on the fate of defendants who are denied any say in their own defence.

An anti-coup protest is seen in Yangon on February 8, 2021 (Myanmar Now)

It is under such circumstances that a total of 119 dissidents have been sentenced to death over the past year, including 42 in absentia. Among them were 88 Generation leader Ko Jimmy, former MP Phyo Zeyar Thaw, and anti-coup activists Aung Thura Zaw and Hla Myo Aung, who last month became the first prisoners to be executed in Myanmar in more than three decades.

To boycott or not 

Given the regime’s total control over the justice system, some believe that lawyers should simply refuse to have anything to do with it. 

“They should boycott a system that lies to the international community and oppresses civilians,” said Kyi Myint, a legal expert who is also a well-known political analyst.

Others, however, argue that not much should be expected of lawyers and others who work in the country’s courts, as they have long operated in a climate of fear that has effectively stripped them of any ability to act independently.

“The person who is most responsible for addressing this situation is the one at the top. As long as he continues to submit to the rulers’ will, this problem will not go away,” said the retired judge who spoke to Myanmar Now about the worsening position of legal practitioners under the current regime, referring to chief justice Tun Tun Oo, who also served under the ousted civilian administration.

An anti-coup protest is seen in Yangon on February 8, 2021 (Myanmar Now)

For Mei Aye, however, fear has not been the determining factor in her career, as much as it has affected her life. What matters most, she said, is how she can best serve her clients—and through them, her country.

The person who is most responsible for addressing this situation is the one at the top. As long as he continues to submit to the rulers’ will, this problem will not go away

With regard to the latter, she said that she supports the Civil Disobedience Movement (CDM), which she sees as a highly effective means of denying the junta legitimacy and any real hold on power. But she hasn’t joined the movement herself, she said, because she feels that in her case, it would be taking the easy way out.

As a lawyer who mostly handles pro bono cases for political prisoners, she would personally not have much to lose by giving up her job, unlike many others who have joined the CDM. The real losers, she said, would be those in need of any support they can get after sacrificing their own freedom for the future of Myanmar.

“I don’t take on cases because I have any faith in this country’s judiciary. I do it because I need to check on my clients and keep a record of what is being done to them,” she said.

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