Student protestors’ trial and challenges to justice

The trial of the student protestors at the Thayawady Township Court scheduled on September 1 is the15th time in the series. It is approaching six months since the protest column was dispersed brutally onMarch 10.

The proceeding is stuck at testifying the plaintiff Police Major Phone Myint, his 40-plus witnesses are leftto be summoned. The trial could span about three years at the current rate and it is yet to issue the indictment on the defenders.

But the protest students have started their days in the Thayawady jail and still there is no hint of despairon their faces. They go to every court hearing smiling and fight for the truth. They have been chargedunder criminal codes 143, 145, 147, 332 and 505 (b) over protesting against the national education bill in March.

The violent crackdown on the student protest column has faced outcries from every sector of the community saying that it was unlawful. Both sides: the authorities and students are jousting over thecontroversial crackdown.The most significant fact is that a total of 127 involvers of the protest were sent directly to the prison without an official warrant issued by the court on March 10. Two underage students Aung Min Khaing and Myo Thiha were among the detainees. A prison official testified that it was correct.

Thiha, the administrator of Letpadan Township, where the protest happened, sent a letter to thetownship police requesting to take action against a student protestor Aung Hmine San and hiscollaborators under the penal code 505 (b).

According to the law, the penal code 505 (b) is beyond the police’s authority and no one can capture anyone without the warrant under it. So the detention of the student protestors means infringing thelaw. Since the beginning, the proceeding is illegitimate.

Meanwhile Phone Myint was being tested, Robert San Aung, one of the students’ lawyers, asked the court to allow opening a case against the head of the Letpadan police force and chief of the police station at the 10th trial on July 28 for the unlawful arrest of the students. Phone Myint primarily claimed that the police did not beat the protestors but aimed with the poles at them. However, he admitted on the July 20 trial that he were not aware other police beating the protestors and he did not beat the protestors himself.

He added that he filed a charge under Section 505 (b) of the penal code as the students had chanted that they did not want the education made to be enslaved by the junta, which he thought defamed the state. But his claim was neutralised by the defendant’s lawyer saying that it was his own idea and that the current government is not a military regime.

The township judge rejected the request to sue back the plaintiff on August 11 since the chief of the police station and the head of the police force are public servants and can be prosecuted only by the sanction of the President, according to the section 197 (1). 

The 197 (1) states: When any person who is a Judge within the meaning of section 19 of the Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the President of the Union [or some higher authority], is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the President of the Union.

By this clause, the President’s sanction is required even if they are proved to commit a wrongdoing. The students said they would request the President if necessary. But they seem also worried if the act lengthens the proceeding. The defendants’ advocate Hla Myo Myint sent a letter to the township judge on August 18 stressing to drop the charges since the arrest of protestors and forced crackdown infringed the law, according to section 561 (a) of criminal procedure. He also requested the township judge to pass the letter to the higher levels, and repeated his words verbally on August 25.

He said: “The protest column was commenced under the democratic education movement leading committee which has been discussing with the cabinet members and lawmakers officially. So it is not an unlawful assembly as stated by the section 141 of penal code. Cracking down an official assembly is illegitimate. Moreover the order issued in lie with the section 144 is required to do so. Back in the Saffron Revolution, the protest column was dispersed only after issuing the order under this section.

"Such a crackdown without the imposition of a curfew (Section 144) contradicts the law. But the crackdown is in line with the law if there is a failure to respect Section 144 after its imposition. Another wrongful act is that Letpadan Township administrator Thiha issued an order to disperse the crowd under Sections 127 and 128 of the Code of Criminal Procedure. It is clear that he as a township administrator did not have the power to issue such an order.  According to those laws, the power is only entrusted to police or judges. As he had no authority to issue the order, we can return a lawsuit against him. They  also did another wrong thing, which is the use of Section 505 (b) of the Penal Code of Myanmar.  Section 505 (b) is not concerned with police. Section 505 (b) states that anyone cannot be arrested without an arrest warrant. But they made arrests without showing an arrest warrant. This is why we have requested to remove those charges," he said on August 18.

At the 14th court trial on August 25, the students also tried to defend for the third time. They demanded in a complaint letter to take action against police battalions Nos. 1, 10 and 11 under the home affairs ministry and police lieutenant major Nanda Win under related laws as their act to arrest and torture the student protestors and supporters, some of whom had to receive hospital treatment, contradicts the police manual. The court is due to make the decision on the student's demand on September 1.

"The students said police's acts were not in conformity with the provisions of the police manual when they arrested the students. So they signed a petition to take legal against the police and made a statement at the court," said advocate Khin Khin Kyaw.

The students on their part said their attempt to file a lawsuit against the authorities was within theframework of law and to show that the charges with the use of wrongful laws against them were unfair.

"We appeal for returning lawsuits against them because the law enforcers themselves arrested and tortured us. Their acts breached the law. So we are trying to sue them back. They need to be fair," commented one student leader, Nandar Sit Aung.  

It is an undeniable fact that police forces prioritised their emotions rather than their duties and power in cracking down on the Letpadan student protest on March 10. Despite the authorities' denial, their emotional feelings could clearly be seen in newspapers, journals and video records of both local and foreign media. One example is a photograph featuring a vehicle being destroyed by police. Currently,the damaged car sits in the court compound as a piece of material evidence.

Article 1056 of the Police Manual states that it is the duty of all police officers to maintain friendly relations with the public without whose cordial cooperation, the work of the police is rendered difficult if not impossible. To this end, police officers are strictly enjoined to preserve good temper and good humour in all their relations with the public of whom they are the servants and not the masters. An overbearing and discourteous attitude results in dislike of the police. 

After being hit by police's batons during the crackdown, Tin Win, Khin Hlaing, Bo Bo Myo, Wai Yan Tun, Thaw Zin Tun, Htein Lin Aung, Hsan Lwin Oo, Myitta Oo, Aung Chan Min, Aung Myo Oo, Khin Maung Win, Mya and Maung Maung Thein were admitted to the prison hospital. Among them, Tin Win was transferred to Yangon General Hospital as the fifth segment of his neck bone was shattered. He received a surgical operation and stayed in hospital for two months. Until now, he has to make regular hospital visits. When he appears in court for trial, he is there with aid equipment.  Such severe injuries were surely caused by police batons.

Article 1058 says police may use batons under two circumstances—when the offender who attempts to escape from police hands after being arrested and when the offender who resists police arrest as stated in Section 46 of the Code of Criminal Procedure. It also states that although a baton can be used, police must be aware that the offender's head is not hit.

However, the police themselves will know if they were aware of those provisions in the police manual when they cracked down on the student protest. We should question the police as to whether they used power beyond the limit of the law in the crackdown. In connection with the case, the student protestors have appealed to the court to take action against police battalion Nos. 1, 10 and 11 and police officer Nanda Win. The decision to grant the students the right to sue them will be made on September 1.

"I know it was not in conformity with the law to sue us as soon as we were charged after the crackdown. Like in the past, they still sue political or democracy activists under a certain law. Courts also accept such unfair cases.  I would say the executive has influence over the judiciary," said student leader Phyo Phyo Aung from the All Burma Federation of Student Unions.   

Anyhow, we have to wait and see if the judiciary could get out of the outdated, conservative judicial system as the student's trial gathers momentum.