U Ko Ni Assassination: The Prosecution Lawyer’s View of the Trial

By The Irrawaddy 2 February 2019

Kyaw Kha: Welcome to Dateline Irrawaddy! Tuesday marked the second anniversary of the assassination of National League for Democracy (NLD) legal adviser U Ko Ni. Today we’ll discuss whether justice can be done in U Ko Ni’s case. I’m The Irrawaddy chief reporter Kyaw Kha and I’m joined by U Nay La, the prosecution lawyer in U Ko Ni’s case.

U Ko Ni was bold and outspoken in his calls for amending the 2008 Constitution and promoting democracy in Myanmar. You were his friend, and also serve as the prosecution lawyer in his case. Do you think certain things he envisioned have been achieved under the current government?

Nay La: I heard that the proposal to [debate the setting up of a committee to work on] amending the Constitution would be submitted to Parliament on Tuesday. Constitutional amendment is what U Ko Ni sought. He would rather have seen the Constitution rewritten, but under the circumstances, he focused on amending it. He also said the General Administration Department should not be under the Home Affairs Ministry [which is overseen by the military], but under the central and local governments. His wish was recently fulfilled. And he was vocal in his demand for that change. His wish was fulfilled nearly two years after his death. We don’t know yet what changes will be proposed. But [charter reform] is the pledge of the NLD, and everyone knows that U Ko Ni pointed out each and every [undemocratic] provision to help the NLD amend the Constitution.

KK: U Ko Ni’s assassin was arrested immediately after the crime, and there have been criticisms over delays in the trial process. Could you explain these delays?

NL: It is partly because of [weaknesses] in the criminal justice system in Myanmar. And partly because the case was not well established. There were some weaknesses, as the case has to be prepared in a limited amount of time [set by the judicial system]. We have had to make up for those weaknesses. According to the newly adopted Evidence Law, we had to submit electronic records, footage from 160 CCTV cameras and telephone records to the court. There were 80 prosecution witnesses, and 72 were cross-examined. There were 70 defense witnesses, and 40 were cross-examined. These are the causes of the delays. Also, there were appeals lodged to the Yangon Region High Court by both the prosecution and defense sides. And there were delays at the High Court. I would like to add to what I said regarding the case not being well established. When I serve as the prosecution lawyer for U Ko Ni, I am under the control of the Union Attorney-General’s Office. I was asked to question the suspects. And it took me three days to question each one. So, all these [factors] caused delays. And we have had to make up for weak evidence. These are the main causes of the delays in the trial process. Normally, a trial hearing is held once a week. But in U Ko Ni’s case, they have been held twice a week. So, it can’t be said that the trial process is taking too long.

KK: There has been considerable criticism regarding the failure of police to arrest Aung Win Khaing [the suspected mastermind of the crime]. What is your view?

NL: The Myanmar Police Force including the Special Intelligence Department and the Criminal Investigation Department are not below par compared to the police forces of other countries. An arrest warrant has been issued for [Aung Win Khaing], allowing anyone, not just the police, to arrest him. My conclusion is that he has not been arrested because concerned authorities haven’t made sufficient efforts.

KK: To what extent is he important in U Ko Ni’s case?

NL: Discussions of the motive in the killing [of U Ko Ni] are speculative; we have not been able to establish a motive during the trial. Presumably we would be able to do so if Aung Win Khaing was arrested. So, it is very important that Aung Win Khaing is arrested.

KK: Some suggest that Aung Win Khaing has been killed so that he can tell no tales. But I recall you once said that Aung Win Khaing is still inside the country and you questioned why he had still not been arrested?

NL: Yes, I did. I questioned why a suspect who is still inside the country could not be arrested. [Witness] Aung Soe said that Aung Win Khaing is dead. But I won’t assume that he is dead until his body is found. I don’t think he was killed. I believe he is hiding in a very safe place within his community.

KK: Ex-military officials were involved in the murder of U Ko Ni. So, people have become interested in knowing who masterminded the murder. In movies, the mastermind is usually revealed at the end. Do you think the mastermind will be identified at the end in U Ko Ni’s case?

NL: Ex-military officers and those who were dismissed from the military are involved in the murder. But we can’t say the Tatmadaw [Myanmar’s military] is itself involved. Secondly, there are two parts to this case. Regarding the mastermind, we have [as possible suspects] Aung Win Khaing, a retired Army lieutenant-colonel, who is still at large, and Zeya Phyo, who is also an ex-military officer. Aung Win Zaw and Kyi Lin constitute another part [of the case]. Aung Win Khaing wanted to kill [U Ko Ni], and Aung Win Zaw sought an assassin. Frist, he reached Naga Lay, then Aung Soe. As they didn’t take the job, he finally reached Kyi Lin. Kyi Lin had little experience [as an assassin], though he is a crook. He had to hire him as there was no other choice. We are still struggling to establish the motive for the murder.

KK: U Ko Ni was vocal in his demand that the Constitution be rewritten. Why do you think he was murdered?

NL: U Ko Ni consistently called for constitutional change before and after the NLD took office. When I traveled to foreign countries before U Ko Ni’s death, I was asked if U Ko Ni was the only legal expert in Myanmar. After his death, I was asked both inside and outside the country if Myanmar is devoid of legal experts. I didn’t answer those questions. But here today, I will answer them. My answer is that U Ko Ni was an outspoken, bold person. But I don’t think he was murdered over [his demands] for constitutional amendment alone, as you have suggested. There might be other reasons. But he was a person who boldly criticized the Constitution, and pointed out [its shortcomings]. That’s [one reason] why he faced a tragic fate, I would say.”

KK: Some would say serving as a prosecution lawyer in U Ko Ni’s case is fraught with danger, as the murder was [committed by] an organized crime group. Have you received any threats or suffered any harm?

NL: I don’t want to elaborate on this. I have received many threats, though I have not been physically harmed. I expected such things, serving as the prosecution lawyer. I mentally prepared for it, and I took up the job because I think I can cope with it.

KK: Police Colonel Win Min Thein was the chief of airport security at the time of the murder. I noticed that he failed to appear in court. To what extent does that negatively affect [the defense].

NL: Aung Win Zaw said he and Aung Win Khaing were at Yangon International Airport at the time of the assassination to visit Police Col. Win Min Thein. He said his son was about to complete pilot training and that he visited the police colonel to ask him to arrange a job for his son. They said the police colonel is an important witness for them. But the police colonel didn’t show up in court. He officially sent a letter to the court informing them that he could not come. From this, we can conclude that he denies the suspects’ claim. There is another point. The murder took place at the airport. The police colonel, who was the chief of airport security, didn’t come to the crime scene and didn’t take any part in the investigation of the assassination. Nothing was mentioned in the dossier about his response [to the crime]. So, I don’t think he is an important witness, no matter what the suspects say.

KK: What penalties do the suspects face?

NL: They are charged under 302. (1) (b)/34, which is conspiring to commit murder. The maximum penalty is death.

KK: The suspects, who face the death sentence if convicted, have been smiling throughout the trial. I feel that something is wrong. Can you explain how executions work in Myanmar?

NL: I have long wanted to talk about this. Myanmar is one of the countries that practices judicial execution. The death sentence is accepted in Myanmar for the sake of the rule of law. Currently, there are over 100 people [awaiting execution]. But none of them seem worried. What happens is, those who are sentenced to death typically have their sentences commuted to an indefinite jail sentence. Then, when another amnesty is granted, their sentence is commuted to 20 years in prison, which is known as life imprisonment in Myanmar. Then, in the labor camps, their sentence is reduced again through the parole process. So the maximum jail sentence the convicts on death row face is just 10 to 15 years. So, they are happy in the knowledge that they will not be executed and can eat well and stay at ease in prison.

KK: Overall, do you think justice can be done for U Ko Ni and U Ne Win [a taxi driver who was killed while trying to apprehend the assassin], and that the mastermind can be identified?

NL: To make a long story short, as the main suspects and mastermind have not been arrested, I don’t think justice can be done properly.

KK: Why?

NL: The mastermind hasn’t been identified; only the assassins have been identified. The mastermind and the assassins are different people. We can’t say justice is served unless and until all the masterminds are identified.

KK: You mean it is unlikely that the mastermind will be identified?

NL: The mastermind must be unveiled sometime in the future for the sake of justice. This is what I believe.

KK: Thank you for your contribution!