A/HRC/31/71
specialized, independent body to investigate allegations of judicial corruption; and
improving continuing education and training for the judiciary.
17.
An independent legal profession is also necessary to facilitate access to justice and
to ensure that rights are fully upheld, including respect for the right to defence. Positive
developments have been witnessed in recent years, including the creation of a unified
professional lawyers association. It is hoped that the association will act as an effective and
independent professional body representing lawyers’ interests. Nevertheless, the Special
Rapporteur remains concerned by the broad powers of the executive and the judiciary to
suspend lawyers’ practicing licences. For example, on 15 September 2015, Khin Khin
Kyaw, a defence lawyer representing the protestors arrested in Letpadan, was charged by
the presiding judge under section 228 of the Penal Code (“intentionally insulting or
interrupting a public servant in judicial proceedings”) – when detainees voiced their
disapproval in the court room after Khin Khin Kyaw informed them that the judge had
rejected her application to amend the court record – and now faces the prospect of six
months of imprisonment and disbarment. The Bar Council will also need to be reformed in
order to ensure that complaints against lawyers are handled by an independent and impartial
tribunal, in compliance with due process.
2.
Democratic space
18.
Since 2011, democratic space has been opening up in Myanmar, as reflected in
greater media and Internet freedom, newfound political freedoms, increased political and
social activism, and an increase in the number of civil society actors and trade unions.
Challenges nonetheless remain, and certain negative trends, which the Special Rapporteur
has previously highlighted, continue to raise concern. They include ongoing restrictions on
the exercise of the rights to the freedoms of expression, association and assembly, the arrest
of individuals in relation to the exercise of these rights, and the increasing intimidation,
monitoring and surveillance of human rights defenders.
19.
The Special Rapporteur remains concerned about the continuing application of
problematic legal provisions (both historic and recently enacted) leading to the arrest,
prosecution and conviction of civil society actors, journalists and human rights defenders.
In this regard, she once again draws special attention to section 18 of the Peaceful
Assembly and Peaceful Procession Law (2011) (as amended in 2014), sections 143, 145,
146, 147, 500 and 505(b) of the Penal Code, section 17(1) of the Unlawful Associations
Act, the Official Secrets Act, the Emergency Provisions Act, and section 66(d) of the
Telecommunications Act. The Special Rapporteur reminds the Government that detention
under such laws, which are incompatible with international human rights standards, could
give rise to its qualification as arbitrary (see A/HRC/22/44, para. 65). As long as these and
other laws that have been used in the past to silence critics remain in force, there will
always be a risk of perpetuating political imprisonment.
20.
The Special Rapporteur is also particularly concerned by the practice of bringing
multiple charges against individuals in different townships for the same offence. Often,
additional charges are brought against those already in detention, resulting in some
individuals being forced to undergo multiple trials concurrently; for example, Phyoe Phyoe
Aung, a student protestor, faces multiples charges for her involvement in the demonstration
against the National Education Law in Letpadan in March 2015. She is regularly brought
before different township courts to face several trials, with no clear end in sight.
21.
In other cases, charges for past offences for which no action was taken at the time
are suddenly brought forward; for example, Mee Mee, Nilar Thein, and Thet Thet Aung,
three women from the organization 88 Generation, were charged in February 2016 under
section 18 of the Peaceful Assembly and Peaceful Procession Law for their involvement in
demonstrations held in 2014 and 2015. In December 2015, Su Su Nway was arrested again
5
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