Myanmar Regime’s Gagging of Suu Kyi Lawyers Against the Law

By The Irrawaddy 26 October 2021

Myanmar’s military regime has imposed gagging orders on five lawyers representing detained State Counselor Daw Aung San Suu Kyi, who faces 11 charges, barring them from speaking to the media, foreign diplomats and international organizations.

The latest gagging order was issued prior to Daw Aung San Suu Kyi’s latest court hearing on October 26. It comes after U Khin Maung Zaw, the lawyer leading Suu Kyi’s legal defense team, revealed details of President U Win Myint’s court testimony, in which he said that the military had threatened to force him to resign during their February 1 coup. Many observers view that testimony as confirming the illegality of the military takeover.

At the same time, the gagging orders, which were issued by the junta-controlled General Administrative Department under Article 144 of the Code of Criminal Procedure, have been criticized as an attempt to influence the judicial process.

Legal advisor U Khin Maung Myint recently talked to The Irrawaddy about the gagging orders.

What is your assessment of the gagging orders on Daw Aung San Suu Kyi’s lawyers?

It is totally unacceptable under the principles of the judicial system. It is not in line with the law. There is a fundamental principle in Myanmar’s judicial system that not only must justice be done, but it must be done publicly.

To put it simply, citizens have the right to see, know and hear that every stage of the trial is fair and in accordance with law. From the legal perspective, prohibiting lawyers from informing the public about the trials of State Counselor Daw Aung San Suu Kyi and President U Win Myint, or in other words, the administrative branch exerting influence over the judicial branch, is a very disgraceful and ugly act.

Can you explain Article 144 which has been used to gag the lawyers?

We heard that the orders were issued by the General Administrative Department, although the power to do so in fact lies with authorized judges including district-level judges and above. If officials want to impose Article 144 under the Code of Criminal Procedure, they have to apply to the relevant judge.

Only upon receiving such a request will the judge review the application and then issue the gagging order, if necessary. The fact that General Administrative Department officials have issued gagging orders is against the law.

Some people argue that the junta’s State Administration Council has the power to gag lawyers in times of emergency. What is your opinion?

Under no circumstances, and no matter what problems there are between political rivals in a power struggle, there must be no violation of existing laws regarding the rule of law and the judicial system. If the fundamental principles of the judicial system such as freedom, truth and justice are undermined because of the authorities’ influence, it will be a real cause of concern for the rule of law.

The military made a political pledge to both the Myanmar people and international agencies on the day of coup that it would abide by the 2008 Constitution and all the other laws that do not go against the constitution. The military should keep its word.

And Myanmar has a Bar Council that defines the code of conduct and responsibilities for lawyers. It is the automatic right of advocates to inform the public about the cases they take.

For ongoing trials, lawyers have the right to make court hearings public to inform people about the trial unless that will undermine the dignity of plaintiffs and defendants, lead to public distrust of the relevant court or the trial or influence court decisions.

It is because courts not only have to administer justice, but because they have to demonstrate to citizens that every stage of a trial is free, fair and in line with law. The administrative branch can’t impose orders to prohibit that. If they do so, they are disrupting the judicial system.

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