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MYANMAR CRIMINAL DEFENSE PRACTICE MANUAL Prepared for International Bridges to Justice by Jake Stevens Edited by U Hla Ko

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MYANMAR CRIMINAL DEFENSE PRACTICE MANUAL Prepared for International Bridges to Justice by Jake Stevens Edited by U Hla Ko MYANMAR CRIMINAL DEFENSE PRACTICE MANUAL Prepared for International Bridges to Justice by Jake Stevens Edited by U Hla Ko FIRST EDITION, 2018 !"#$%&'()*+,- FIRST EDITION, 2018 Myanmar Criminal Defense Practice Manual Prepared for International Bridges to Justice By Jake Stevens Edited by U Hla Ko First Edition, 2018 Readers are encouraged to reproduce material from MyJustice and International Bridges to Justice for their own publications, as long as they are not being sold commercially. As copyright holders, British Council and International Bridges to Justice request due acknowledgement and a copy of the publication. For online use, we ask readers to link to the original resource on the MyJustice website, or the IBJ website. The views represented in this paper are those of the author(s) and do not necessarily represent the views of British Council, European Union, or International Bridges to Justice. myjusticemyanmar.org ibj.org © British Council 2018, © International Bridges to Justice 2018, cover artwork copyright by © Barbara Morrison Suggested Citation: Stevens, J. (2018), Myanmar Criminal Defense Practice Manual, Taunggyi, Myanmar, International Bridges to Justice Author: Mr. Jake Stevens is Country Training Director for IBJ. He has more than 20 years experience as a legal aid lawyer and clinical law professor in the United States. He has worked with lawyers, law teachers, and other justice sector actors in Myanmar since 2013. Editor: U Hla Ko is Senior Legal Advisor for IBJ. In his 50 years of legal practice he has served as a criminal court magistrate and civil court judge, as well as an advocate. He has published many legal treatises. He has held leadership positions with the Mandalay Bar Association. He is currently a member of the Union Rule of Law Center and Justice Sector Affair Coordinating Board. Translation: Daw Khine Nyein Aye (Ting), Daw Phyu Phyu Lwin, Daw Nandar Min Tun, and Daw Kyi Thawtar Suu. Acknowledgements: The author recognizes the contributions of the senior attorneys of the Yangon Justice Centre and U Kyaw Myint Law Firm in 2013-2014, supported by the International Senior Lawyers Project. In 2017 invaluable feedback was provided by attorneys U Tun Hlaing, U Kyaw Htay Lwin, and U Tet Ney Tun. Skill sections were adapted from the IBJ India Legal Aid Practice Manual graciously shared by IBJ India Director Ajay Verma. All errors are those of the author. English Language Manual Myanmar Language Manual https://www.ibj.org/where-we-work/myanmar/MyanmarDefenderManual.PDF https://www.ibj.org/where-we-work/myanmar/MyanmarDefenderManual_bur.PDF 2 ABOUT THE WORK OF INTERNATIONAL BRIDES TO JUSTICE IN MYANMAR IBJ’s work in Myanmar is funded by a grant funded by the European Union to support rule of law reform. The grant is being implemented by the British Council through the MyJustice network. International Bridges to Justice (IBJ) has subcontracted with MyJustice to create this manual. Our work has been done in cooperation with all these agencies. INTERNATIONAL BRIDGES TO JUSTICE Our Mission Statement provides “In recognition of the fundamental principles of the Universal Declaration of Human Rights, International Bridges to Justice (IBJ) is dedicated to protecting the basic legal rights of ordinary citizens in developing countries. Specifically, IBJ works to guarantee all citizens the right to competent legal representation, the right to be protected from cruel and unusual punishment, and the right to a fair trial.” Founded in 2000, International Bridges to Justice (IBJ) is building a global movement of justice-makers to end torture in the 21st century and strengthen the rule of law across the world. IBJ collaborates with state, civil, and community-based organizations to comprehensively reform criminal justice systems that respect the rights of every individual. IBJ’s works to ensure that legal counsel is provided to the accused of the earliest stages of the criminal process in the hopes of significantly reducing instances of torture. IBJ’s primary focus is the empowerment and support of the drivers of the criminal justice system—public defenders. IBJ is a US 501(c)(3) organization with programs in Burundi, Cambodia, China, Democratic Republic of the Congo, India, Myanmar, Rwanda, Singapore, Sri Lanka, and Zimbabwe. IBJ also has a program to encourage innovation in criminal justice systems around the world, called JusticeMakers. IBJ has sponsored Fellows for the JusticeMakers program in 41 countries. IBJ also maintains a website for international criminal defense knowledge and training called DefenseWiki. The DefenseWiki website contains information about criminal justice systems in 87 countries. OUR VISION We envision a world where the basic legal rights of every man, woman and child are respected in particular: the right to competent legal representation, the right to be free from torture and cruel treatment and the right to a fair trial. A world where each and every citizen is knowledgeable about his/her rights and is empowered to demand that they are upheld in practice. A world where international human rights standards and relevant local laws are brought to life in the everyday practice of justice. 3 OUR APPROACH IBJ works with criminal defense attorneys, state institutions, legal aid organizations, community-based organizations, and other interested stakeholders to fulfill its mission. IBJ engages in a three-pillar programming approach to ensure comprehensive criminal justice transformation: • Defender Capacity Building – as the drivers of the criminal justice system, we focus most of our support on the empowerment of public defenders/legal aid attorneys through skills development, training programs and materials, on-the-ground resource centres, international community-building, and technical support • Institutional Capacity Building – in recognition that implementation of the rule of law requires the cooperation of all participatns within the justice community, IBJ joins with defenders, law officers, judges, police, detention centre officials, local government representatives and legal academics in Criminal Justice Roundtable sessions to build mutual respect and establish the foundation for long-term criminal justice reform. • Rights Awareness - the lack of information and knowledge of legal rights by average citizens is a major factor enabling the continuation of rights abuses; thus, IBJ administers Advisement of Rights campaigns through various communication tools (e.g. posters, brochures, street law sessions) to empower citizens to advocate for their own legal rights 4 Table of Contents HOW TO USE THIS MANUAL................................................................................ 9 ABBREVIATIONS ................................................................................................ 10 INTRODUCTION ................................................................................................. 11 PART ONE: FOUNDATIONAL ISSUES ................................................................. 12 COUNSELING CLIENTS ....................................................................................... 12 Client-Centered Lawyering .................................................................................................... 13 Working with Clients Who want to Confess or Plead Guilty ............................................... 15 Helping Clients Remain Silent ............................................................................................... 19 THE RIGHTS OF THE ACCUSED ......................................................................... 20 The Right of Defense .............................................................................................................. 20 Presumption of Innocence/Burden of Proof ........................................................................ 20 Right not to be tortured ......................................................................................................... 23 Right to Remain Silent (Right against Self-Incrimination) ................................................. 23 Right to be defended by an attorney ..................................................................................... 24 Right to Due Process .............................................................................................................. 25 Right to Equal Protection of the Law .................................................................................... 26 Right Against Double Jeopardy ............................................................................................. 26 Right against Post Fact Prosecutions .................................................................................... 27 Right to be Informed of Charges ........................................................................................... 27 Right to Bail ............................................................................................................................. 28 Right to Interpretation. .......................................................................................................... 28 Rights Against Unlawful Arrests and Searches .................................................................... 29 Right Against Unlawful Police Detention ............................................................................. 29 RIGHTS AND DUTIES OF THE DEFENSE ATTORNEY ....................................... 30 Right to Practice if Qualified .................................................................................................
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