New research suggests lax, poorly trained judges and shambolic court hearings that contravene local and international law are par for the course in Myanmar

Defence lawyer Zar Li Aye was eating lunch near a courthouse in Yangon, Myanmar’s largest city, when her phone rang. “Where are you?” asked a colleague. “Your client just confessed.”



The client, under pressure from a police officer, had agreed to fire her and submit a false guilty plea when the judge started the hearing early.

Zar Li Aye rushed back to the courtroom, but it was too late. “I’m so sorry,” the defendant sobbed. “I really didn’t want to fire you and I didn’t do that crime, but they put me under a lot of pressure.”



For defendants facing government prosecutors in Myanmar, the chances of a fair trial are slim. Many judges openly presume guilt before hearing evidence, and regard putting up a defence as a waste of court time.



“If you hire a lawyer, the judge will hate you,” the police officer had told Zar Li Aye’s client, who was arrested on suspicion of soliciting as a sex worker. She was imprisoned for a year; the judge said she would have received 18 months had she fought her case.

It is widely acknowledged that the country’s judiciary is beholden to the military and consumed by rampant bribery. But backhanders and meddling generals are only part of the story.

I’ve seen a lot of judges talking on their phones or using Facebook while the court is in session Yee Nwe Tun, legal aid lawyer

In many other cases, people suffer miscarriages of justice simply because of shambolic courtroom proceedings overseen by poorly trained and unprofessional judges.

“I’ve seen a lot of … judges talking on their phones or using Facebook while the court is in session,” says Yee Nwe Tun, a legal aid lawyer, with a resigned chuckle.

Judges sometimes take naps during hearings, or get up from the bench to have lunch, leaving the defence and the prosecution to go hungry as they continue the hearing on their own.

This behaviour has gone unchecked for decades partly because independent observers have been kept out of courtrooms. But one group, emboldened by democratic reforms, recently undertook what it calls an “unprecedented” project by observing more than a thousand hearings.

The resulting report by Justice Base, a non-profit aimed at improving Myanmar’s legal system, covered more than 155 cases in Yangon between 2013 and 2016.

The group had to partner with defence lawyers to access the hearings, which they watched secretly – partly because court officials illegally deny access to the public, partly because the observers feared retribution from officials.

Many of the hearings they attended failed to comply with local and international law on fair trial rights. Even if, say, judges were impartial, trials might still be compromised by systemic problems, such as difficulties in accessing case files, or the fact it is often impossible for lawyers to consult with their clients in private.

In almost 90% of cases that Justice Base observed, defendants were not allowed a lawyer during the remand hearing, as a result of which many were probably denied bail without an argument in their defence.



Facebook Twitter Pinterest Journalists in Pyaye, Myanmar, stage a protest to demand the release of Reuters colleagues Wa Lone and Kyaw Soe Oo. Photograph: Thiha Lwin/AFP/Getty Images

This practice fuelled global outrage last month when two Reuters journalists were arrested and detained while working on a story about the brutal crackdown against Rohingya Muslims in Rakhine state.

The pair, who face up to 14 years in prison on official secrets charges, were held in a secret location for more than two weeks and didn’t meet their lawyer until they emerged from a van amid a throng of reporters at their second remand hearing.

The Justice Base observers covered more run-of-the-mill cases such as theft, assault and sex work, rather than any overtly political ones. But even when authorities aren’t directly interfering, some judges “fear being watched”, and lawyers often fear challenging judges, said Kari Rotkin, the group’s international legal adviser.

Who are the Rohingya and what is happening in Myanmar? Read more

Myanmar’s criminal justice system ranks second to last in the region and near the bottom globally, according to the World Justice Project’s annual rule of law index.

Aung San Suu Kyi, the country’s de facto leader, has repeatedly stressed the need for rule of law in Myanmar, but reforms since her party came to power in 2015 have been minimal. A new legal aid law enacted in 2016 would finally give suspects the right to free legal assistance, but the government has yet to implement it.

Some reforms are bound to be slow, but other changes for which Justice Base is pushing, such as displaying posters in police stations informing defendants of their right to a lawyer, could be made overnight if the political will were there.

Rotkin says she was encouraged by a recent meeting she and her colleagues had with members of the supreme court about their findings. The group has sent copies of the report to court officials, who she hopes will distribute them to courthouses around the country.

But the recent arrests of several journalists, she added, have raised doubts about “how committed [the authorities] really are to this ‘rule of law’ term”.

Myanmar’s once-celebrated political transformation seemed to provide an opening for judicial reform, she said. “But that opening might have already closed, we don’t know.”

Additional reporting by Cape Diamond

