The factual matrix surrounding the events leading to this most recent trial of Daw Aung San Suu Kyi remains curious. An American citizen, John Yettaw, was apparently granted a tourist visa and arrived in Burma on 2 May 2009. Two days later he swam across the Inya Lake, wearing home-made flippers (which he photographed) to the home of Daw Aung San Suu Kyi, where she has been held under house arrest for 13 years. The legality of this incarceration had been challenged by her international lawyer, Jared Genser of DLA Piper, and a judgment had just been published from the United Nations Working Group on Arbitrary Detention (“UNWGOAD”) declaring her house arrest illegal and ordering the Myanmar Government to release her. The opinion of UNWGOAD specifically stated that the house arrest was in breach not only of international law but of domestic law as well. The Myanmar Government has failed to comply with this order.
The Burma Justice Committee too had launched proceedings in the cases of four detainees, imprisoned at about the time when Buddhists monks were shot at by the military and hundreds of people incarcerated. The four petitioners, whom Adam Zellick and I represented, were well known leaders of a pro-democracy group, the “88 Generation”. They were Min Ko Naing, Ko Jimmy, Pyone Cho and Min Zayar. We were instructed by Jared Genser and we lodged all four petitions in November 2007. Unexpectedly and outside the permissible time limits, the Myanmar Government defended these petitions. This had the practical effect of prolonging the proceedings but by March 2009, UNWGOAD had issued a strongly worded judgment in which all four of the detainees were held to have been arbitrarily detained and ordering the Myanmar Government to immediately release them. In breach of international law, the junta failed to comply with this.
Daw Aung San Suu Kyi had been permitted two “companions” to be with her in her house arrest. These were Khin Khin Win and her daughter Win Win Ma. It is not known for what purpose John Yettaw swam across but his evidence (for he too is being tried) reportedly was to the effect that he had had a vision of death which he wanted to warn Daw Aung San Suu Kyi about. He was arrested on his swim back. The limited reports of the trial do not detail her defence; what is known is that there were 14 witnesses called for the prosecution and all defence witnesses were “disallowed” save one. The charge was one of violating the terms of her house arrest. Her defence is that she did not violate these terms; the military regime failed to give her adequate protection from intruders.
John Yettaw was arrested in early May. The Myanmar junta announced that it would be holding the trial of Daw Aung San Suu Kyi in the middle of the same month. News reports gave the gap of a weekend between the announcement of the trial to its commencement. We, in the Burma Justice Committee, did all in our power to try to assist her. It proved impossible for her international lawyer Jared Genser to have direct access to her. Timothy Dutton QC, Roy Amlot QC and I contacted the Myanmar Ambassador. Our proposal was that we be allowed as interested observers to monitor the trial. We were initially told that our visas would be considered on an urgent basis but when we made the purpose of our visit plain, various ploys were used (“The embassy will close early because there are protestors outside”, “The ambassador cannot be located within the building”) to deflect our journey to the Embassy. We were eventually informed that our visas would not be granted.
The trial began as scheduled. Under extreme international pressure the British Ambassador Mark Canning was eventually allowed in as an observer. He has a blog which informs interested readers of the trial process. The blog, dated 28 May 2009, has a heading “The verdict has already been decided”. The trial was adjourned but according to the Guardian it resumed on 10 July. As Counsel went to press, there were no further developments.
A clear message
In his well-known lecture on “The Rule of Law”, Lord Bingham stated “The core of the existing principle, is, I suggest, that all persons and authorities within the state, whether public or private should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered”. Developing this core, Lord Bingham developed eight “sub-rules” which attested to the rule of law. These sub-rules were explored at one of the seminars in Qatar. There a panel member suggested that there might be a need to recognise “national” notions and norms before the international notions and norms could be properly “internalised”. This observation seems to me ludicrous.
This is the threat to ethics that Professor Simon Blackburn spoke about in his brilliant guide to the subject and which he calls the “Argument from Relativism”. The gist of it goes thus: we understand it to be wrong but they, in their society may not understand it to be wrong. So let us stand back.
Actually, let us not stand back. Let us rather say plainly to those three judges, Justice Thwong Nyunt, Advisor Justice Nyi Nyi Soe and Legal Advisor Myint Kyaing purporting to try Daw Aung San Suu Kyi, the following:
(1) You are regarded by the rest of the world as utterly lacking in judicial integrity and independence (and UN reports attest to this lack of impartiality within the judiciary).
(2) You are continuing the incarceration of a lady whose imprisonment has been held to have been unlawful in international and domestic law.
(3) You failed to allow independent monitors to attend this trial to ensure that justice was impartially administered.
(4) You permitted this trial to proceed within a prison with very little access to the outside world. You have imposed this unacceptable secrecy when a good judge would have realised that a derogation from the sub-rule (in the rule of law) called for “clear consideration and justification”.
(5) Your bias has been demonstrated in “disallowing” all defence witnesses bar one and in further allowing 14 prosecution witnesses.
(6) Understand this: you will one day be called to account in an international arena. By becoming the willing participants in the military junta’s design and dressing up what happened as a “trial” you have become complicit in the junta’s persecution of its own democratically elected leader.
Sappho Dias, 5 Kings Bench Walk, Chairman of the Burma Justice Committee