Symposium on Myanmar and International Indifference: Support for Lawyers in Myanmar Remains Paramount Since the Coup

[Raquel Saavedra is an International Legal Adviser, Myanmar, for the International Commission of Jurists. Kingsley Abbott is the Director of Global Accountability and International Justice, International Commission of Jurists.]

In recent conversations with diplomats covering Myanmar, we continue to be asked: is it still worthwhile for states to support the work of Myanmar lawyers when the justice system is in a state of collapse? 

The answer is yes.  Not only is it worthwhile to continue to support independent lawyers during a time of crisis, it is also critical for there to be any accountability for serious human rights violations at the domestic level in the long term.

A Justice System in Crisis

The reason for the question is the appalling backsliding of human rights and the rule of law that has grossly undermined the whole justice sector since the unlawful military coup of February 2021.

The Junta, quick to try and give the appearance of legality and legitimacy for their actions, has misused the law to implement sweeping “legal reforms” that undermine the independence of the judiciary, police, prosecutors, and the Bar Council, and limited human rights protections and access to justice for perceived opponents of the military regime.

Under emergency orders, most prosecutions undertaken for political reasons are now being handled by Special Courts or military tribunals housed in prison complexes, inconsistent with international law and standards, including customary international law binding on Myanmar, that requires a fair and public hearing by a competent, independent, and impartial tribunal established by law.

It is well established that civilians should not generally be subject to military jurisdiction. Further, the Principles Governing the Administration of Justice through Military Tribunals sets out principles that apply to state use of military tribunals. Principle 5 states “Military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.”

Even in ordinary courts, many judges, testifying police officers, and prosecutors have been handed strict orders effectively dictating the outcome of cases, orders which few contradict given threats to their jobs and personal security if they do so. Lawyers too are facing increasing risks to their personal safety in the course of their professional activities, with a reported 27 lawyers being arrested and detained following the coup and many facing daily threats.

This pressure on the justice system is taking place against the backdrop of thousands of arbitrary arrests, widespread and systemic torture and other ill-treatment in detention, and other acts that include crimes against humanity and other violations under international law.

The Role of Lawyers in Times of Crisis

The essential role played by lawyers is necessary to a legal system rooted in the rule of law and to ensure the protection of human rights. This is reflected in numerous sources of international law and standards.

Standards include, for example, the UN Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors and find their footing in all international human rights instruments such as the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.

In times of crisis, the role of lawyers is enlarged, and the importance of their work is magnified. The ICJ Declaration and Plan of Action on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis recognizes this expanded role, specifying in Principle 7 that “[s]ince the protection of human rights may be precarious in times of crisis, lawyers should assume enhanced responsibilities in protecting the rights of their clients and in promoting the cause of justice and the defense of human rights.” The UN Declaration on Human Rights Defenders adds that there is in fact a right to participate in activities against human rights violations, as well as a right to be protected from threats or harassment as a result of those activities.

The Fight for Justice by Lawyers in Myanmar

Many lawyers in Myanmar have executed this important role in an impressive and exemplary manner. Immediately after the coup, many lawyers, at great risk to their personal safety, went straight to prisons to assist hundreds and, later thousands, of victims and their families to locate missing relatives who were suspected of being detained.

As detailed in a forthcoming report by independent experts on the legal system in Myanmar, these lawyers, working inside a system deliberately stacked against them, continue to creatively advocate for and defend the rights of clients in thousands of cases by challenging weak prosecutorial arguments and evidence and presenting novel legal strategies not used before in Myanmar.

Through these techniques, they have successfully guarded against worse treatment in detention, obtained the mass release of detainees and in some cases, secured pardons, in a context where all indicators make this seem impossible from the outside. They have been able to do so by relying on lawyers’ networks established informally in the last year for case strategy as well as moral and material support.

In addition to their legal role, many lawyers in Myanmar have been serving a sort of humanitarian function that no one else has been able to do. As typically the only actors permitted in prisons, they have provided for even the most basic needs of detainees including food, essential medicines, entertainment materials, as well as facilitated communication with families when such contact would otherwise be unattainable.

Finally, lawyers have collectively documented thousands of instances of torture and other forms of ill-treatment in detention, as well as other human rights violations which would have been perpetrated in a complete shroud of secrecy otherwise.

Support for Lawyers is Increasingly Critical

Real change and reform inside Myanmar begin with the Myanmar people, including lawyers who need support now more than ever.

While longstanding impunity in Myanmar is being addressed in international fora through the creation of the Independent Investigative Mechanism for Myanmar (IIMM), an investigation by the International Criminal Court (ICC), and proceedings before the International Court of Justice (ICJ) and the courts of Argentina and Turkey, the struggle for accountability continues on the ground.

Beyond the public rallies, we see daily in the international media, less visible protests are also taking place.

In addition to the actions of members of the general public, lawyers and civil society who remain committed to the struggle, the ICJ has received reports that certain individuals within the justice system, including judges, police, and prison staff have expressed sympathy towards political detainees and engage in small acts of defiance in their day-to-day work. 

For example, one lawyer reported that some judges in her jurisdiction have tried to advocate for lesser or more lenient sentences in political cases. In another instance, reported by the Office of the High Commissioner for Human Rights (OHCHR), upon sentencing, a judge reportedly told the accused, “You are innocent, but I have to listen to someone else. Please forgive me.”

These acts are rule of law and human rights leaning and, beyond their immediate relevance, they matter in the long run if a justice system founded on the rule of law and protection of human rights is ever to take root in Myanmar.

The Support Lawyers Need

Lawyers require backing to foster, protect, and support the struggle for human rights and the rule of law so that in the future there will be a functioning legal system in place and the domestic will to advance justice and accountability.

First, they need help in putting in place networks, protocols and best practices, including digitally, to help guarantee their safety and security and which would also assist them to better coordinate case strategies as well as international advocacy efforts.

Second, they would be assisted by both financial and material support to help them deliver legal services and monitor and document human rights violations, including in places of detention.

Third, they require legal assistance including, advice on international law and standards, the sharing of comparative best practices in protecting human rights in times of crisis, and documenting acts that amount to international crimes and human rights violations in complex security environments.