An opinion piece by Vani Sathisan, ICJ International Legal Adviser, and Hayman Oo, ICJ Legal researcher, in Yangon.
“They can imprison my body, but never my mind,” U Nay Myo Zin told us when we asked him whether he expected to be released, right before police led him into the Dagon Township courtroom for the verdict last week. The Court was teeming with police guards and supporters of the accused chanted slogans at the police, “not to kowtow to the military government” and that “the legal system lacks principle.” U Nay Myo Zin then added, “I will never surrender.”
He was one of the six human rights activists, besides Daw Naw Ohn Hla, Daw Sein Htwe, Ko Tin Htut Paing, Daw San San Win and U Than Swe, who were sentenced to four years and four months in prison with hard labour.
Their conviction, after a trial that didn’t meet basic standards of fairness and due process, highlights the tremendous pressure on the country’s judiciary at a time when Myanmar desperately needs to show improvements in the rule of law.
The protesters were convicted of violating Article 18 of the Peaceful Assembly and Peaceful Procession Law and sections 147, 505(b) and 353 of the Penal Code, specifically rioting, publishing or circulating information which may cause public fear or alarm and may incite persons to commit offences against the State or against the public tranquility, and assaulting or preventing a public servant from the discharge of his duty.
The charges related to their peaceful demonstration outside the Chinese embassy in Yangon on 30 December 2014, calling on Myanmar authorities to carry out an urgent and impartial investigation into the death of Daw Khin Win.
She was shot dead on 22 December 2014 when demonstrating against illegal land confiscations and forced evictions over the Letpadaung copper mine in Monywa.
The Letpadaung project, a joint venture between Chinese-owned Myanmar Wanbao and the Military-owned Myanmar Economic Holdings Limited, has been associated with human rights and environmental abuses and a lack of accountability.
Hundreds of families have been moved to resettlement sites while many others continue to resist evictions from their ancestral homelands.
Villagers complain about the opaque land acquisition process and the lack of genuine consultations and effective environmental impact assessments.
Despite widespread calls, including by the Myanmar National Human Rights Commission, for an official investigation into the Letpadaung shooting, there has been no proper inquiry into the death of Khin Win.
Sources tell us that a case has been recently filed in a township court against a police officer in relation to the shooting, half a year after the incident.
Nobody has been prosecuted three years since police used white phosphorus to disperse monks and villagers peacefully protesting against the Letpadaung mine’s operation and the piling of mining waste on village farmlands.
The lack of accountability for the killing of Khin Win and the incident three years ago stands in contrast against the rapid conviction and harsh sentences meted out to the peaceful demonstrators.
The ICJ has observed and documented the case’s pre-trial and trial phases and considers that they grossly violate international standards of fair trial.
In the hearings we attended, we observed denials of due process.
For instance, bail was denied without a reason after hearings lasting less than five minutes. The hearing in which the defendants were convicted and sentenced also lasted only a few minutes.
The defendants believe more broadly that they were not tried by a competent, independent and impartial tribunal.
The defence further believes that the judges failed to decide the matter on the basis of facts and in accordance with the law, and that “plain-clothed persons” inside the courtroom instilled fear in the judges.
Regrettably, the lack of trust in the judicial system expressed to us by the defendants resonates with what we hear on a regular basis from legal professionals, other non-governmental organisations, and ordinary individuals from around the country, as documented in ICJ’s report Right to Counsel: The Independence of Lawyers in Myanmar.
The accused have complained about poor prison conditions, non-nutritious food and dirty water.
Such prison conditions would not comply with the United Nations Standard Minimum Rules for the Treatment of Prisoners.
Instead of prosecuting—or rather, persecuting—these protesters, the Myanmar government must drop the charges against the protesters and release them.
The government should diligently pursue those who killed Khin Win, and in particular, whether they were linked to the company operating Letpadaung.
Unfairly jailing those who demand justice will not end the resistance to the Letpadaung mine operation, or to the other mega projects now cropping up around Myanmar.
If anything, it will increase tensions and problems.
This is the time for the Myanmar government to show it will strengthen the rule of law for all people in Myanmar.
Photo credit: www.amnesty.org