legal practice brief: 4 liberty and...

2019

4Legal Practice Brief:

Libertyand Bail

The Legal Practice Brief series is a product of a collaboration between

MyJustice and Justice Base. MyJustice is a programme funded by the European

Union and implemented by the British Council aimed at enhancing access to

justice for the poor and vulnerable in Myanmar. Justice Base promotes the

rule of law in transitional and post-conflict societies by building the capacity

of local lawyers and supporting nationally owned rule of law initiatives. This

Legal Practice Brief was researched and drafted by Laura Draper and Susan

Lee with input from Dr. Tet Nay Tun, Kari Rotkin, Aye Mon Thu and Laura

Edwards.

Readers are encouraged to reproduce material from MyJustice and Justice

Base reports for their own publications as long as they are not being

sold commercially. As copyright holder, British Council requests due

acknowledgement and a copy of the publication. For online use, we ask readers

to link to the original resource on the MyJustice or Justice Base website.

www.myjusticemyanmar.org

www.justicebase.org

Copyright: British Council 2019

Disclaimer: The contents of this publication can in no way be taken to reflect

the views of the European Union.

I. Introduction

II. Existing Practice in Myanmar

III. Do Current Practices Comply with Myanmar Law and

Fair Trial Standards?

IV. Strategies for Protecting the Right to Life and Personal Freedom

Annex 1: Template Arguments

A. Oral application for bail at remand hearing (bailable offence)

B. Oral application for bail at remand hearing (non-bailable offence)

C. Oral application for bail at the High Court

D. Form 71 – Written application for bail at a remand hearing

E. Form 71 – Sample application for bail at a remand hearing

F. Representations to the law officer

Contents

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Recent research findings confirm that many practices within Myanmar’s criminal justice system deprive the accused of his or her fair trial rights. Even where domestic law guarantees the protection of these rights, entrenched practices deprive people of just outcomes, undermine trust in the system and perpetuate and reinforce negative public perceptions about all justice actors. Justice Base and MyJustice are working to counteract such practices by developing and empowering communities of legal practitioners who, through peer discussion and debate, identify key challenges faced by defence lawyers when attempting to protect their clients’ rights and brainstorm strategies lawyers can use to better respond to rights violations and ensure rights are protected.

Myanmar’s Constitution protects the right to life and personal freedom of all persons,1 and guarantees that such freedom cannot be deprived by the state without evidence that is both lawfully obtained and sufficient to prove guilt.2 The right to life and freedom applies to people arrested and accused of crimes: only in exceptional situations may the accused be held in detention without bail until and unless he is convicted of the offence with sufficient evidence. In practice, courts, police, law officers and lawyers do not ensure proper consideration and application of bail or release of the accused pending trial,3 routinely violating the fundamental rights of the accused. This legal practice brief outlines the relevant legal framework relating to bail in criminal cases, the rights violated by existing practices and proposes avenues of litigation available within existing law to assist lawyers seeking to challenge these unlawful practices.

I. Introduction

Legal Practice Brief 4

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1 See 2008 Constitution, Article 353: “Nothing shall, except in accord with existing laws, be detrimental to the life and personal freedom of any person.”

2 Lawyers interested in learning more about the burden of proof in criminal proceedings should read Legal Practice Brief 3 on presumption of innocence and burden of proof.

3 In this brief, phrases such as “detention pending trial” and “pre-trial detention” are used to describe the period in which a person accused of committing a crime is held in police or prison custody prior to conviction. This includes detention immediately following arrest, during the remand period, during pre-trial inquiry proceedings and during trial proceedings.

Liberty and Bail

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This Legal Practice Brief reflects the ideas and contributions of the communities of lawyers in Yangon Region, Mon State, Mandalay Region, Shan State, and Bago Region. We hope that legal practitioners across Myanmar feel empowered by these briefs to strengthen their own practice, including by making it more rights protective.

The right to life and personal freedom is fundamental to the enjoyment of all other rights and for that reason has long been prominently enshrined in Myanmar’s highest laws, from the 1947 Constitution to the 2008 Constitution.4 In the context of criminal justice, the right to personal freedom together with the presumption of innocence require that persons accused of crimes be released on surety or bail save in exceptional circumstances where there are adequate grounds to believe the person has committed an offence punishable by death or transportation for life.5 Myanmar laws therefore establish a clear framework for the presumptive release of all persons accused of crimes pending trial apart from those facing the most serious criminal charges.

Nevertheless, bail practice in Myanmar’s criminal justice system does not adhere to the law. When detainees are brought to court for their first appearance after arrest (also referred to as the first remand hearing), the basis for arrest and the rationale for continued detention pending trial are rarely scrutinised. As a result, even in bailable cases6 judges and police seldom initiate granting release of the accused, though release on bail or surety is mandated by the Code of Criminal Procedure.7 For cases categorised as non-bailable, judges, police and defence lawyers generally operate under the misconception that release is legally unavailable in all such cases, not only those subject to the death penalty and in which evidence of guilt is sufficient.

II. Existing Practice in Myanmar

4 1947 Constitution, Article 16: “No citizen shall be deprived of his personal liberty, nor his dwelling entered, nor his property confiscated, save in accordance with law”; 1974 Constitution, Article 159(a): “Personal freedom and security of every citizen shall be guaranteed.”

5 The Code of Criminal Procedure, Section 497(1). In practice, Myanmar no longer imposes the punishment of “transportation for life”, having replaced it with life imprisonment.

6 Myanmar law categorises criminal offences as “bailable” and “non-bailable”. With some exceptions, bailable offences are less serious offences subject to less than three years’ imprisonment, and non-bailable offences are more serious offences subject to a minimum of three years’ imprisonment and a maximum penalty of death. See The Code of Criminal Procedure, Schedule II.

7 Ibid., Section 496: When a person is arrested or detained for a non-bailable offence, they “shall” be released on bail.

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Most detainees in Myanmar do not have access to lawyers, which renders them virtually helpless to challenge the basis of their detention or request release on bail. Even when detainees are represented, defence lawyers often fail to request release on bail in both bailable and non-bailable cases. During court observation research conducted in Yangon Region in 2016, Justice Base found that even in bailable cases lawyers did not request bail for their clients in 37% of the cases observed.8 In non-bailable cases, lawyers reported never or almost never requesting bail for their clients, or challenging the length of time their clients had spent in custody.9

Compounding the problem, defence lawyers rarely begin representation until criminal proceedings are well underway. Research conducted by Justice Base in 2017 found that in 87 percent of observed cases in which the accused was eventually represented by a lawyer, defence lawyers were not present during remand hearings which determine whether the court will detain an accused during the investigation period.10 Without legal representation at the remand hearing, most detainees are unlikely to obtain bail or have the basis of their arrest and detention reviewed, prolonging the time they spend in pre-trial detention.

The consequences of these practices are severe and far-reaching, eroding public trust in the system, violating the rights of the accused and destabilising their families. As access to the accused in police lock-up or prison by family and lawyers can be highly restrictive and not confidential, detention pending trial weakens the ability of the accused to consult with a lawyer and participate meaningfully in his own defence. Failure of the courts to routinely and thoroughly examine the grounds for arrest and detention means that any unlawful basis for the detention

8 Justice Base, Trial Observation Report (August 2016) (unpublished), p. 24.9 Justice Base, Monitoring in Myanmar: An Analysis of Myanmar’s Compliance with Fair

Trial Rights (October 2017), available at: http://justicebase.org/?page_id=44, p. i.10 Id., p. 8.

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may never be remedied. Pre-trial detainees are also particularly vulnerable to mental and physical abuse while in custody, as police may rely on unlawful threats, inducements and violence to secure evidence for trial.

Detention pending trial can also have a devastating effect on the family of the accused, including loss of livelihood and security, setting off a chain of events that can entrench families more deeply in cycles of poverty and recidivism. Injuries and illness suffered in detention may result in lasting mental and physical disability long after release. For the innocent accused, these consequences have a profound impact that acquittal can never effectively redress.

Defence lawyers can play a key role in protecting the right to personal freedom of their clients, by restoring the practice of bail in accordance with Myanmar law.

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Liberty and Bail

III. Do Current Practices Comply with Myanmar Law and Fair Trial Standards?

Existing bail practices violate fundamental and fair trial rights protected by Myanmar law, including the right to life and personal freedom, the presumption of innocence and the right to defence.

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Article 353 of the 2008 Constitution of the Republic of the Union of Myanmar

(the “2008 Constitution”) states clearly that nothing shall be “detrimental to

the life and personal freedom of any person.” As the Supreme Court declared in

Tinsa Maw Naing v. Commissioner of Police, Rangoon, & Another, this fundamental

right can be curtailed only in limited circumstances and in accordance with the

law:

The personal liberty of a citizen, guaranteed to him by the Constitution,

is not lightly to be interfered with and the conditions and circumstances

under which the legislature allows such interference must be clearly

satisfied and present.11

In criminal proceedings in Myanmar, the right to liberty is recognised, protected

and effectuated by a variety of laws aimed at protecting this right and preventing

arbitrary arrest and detention by the state, including laws that favour release on

bail pending trial.12 Any deprivation of an individual’s liberty must be justified

on specific legal grounds and the legal basis of any arrest and detention by

police is subject to review by a court. At any stage in the proceedings, where the

court finds insufficient evidence to justify the arrest and continue the accused’s

detention, the court is empowered by the Code of Criminal Procedure to release

the accused on bail or surety.13

Myanmar laws make clear that bail is the rule and jail the exception. Section

496 of the Code of Criminal Procedure mandates the release of all accused in

bailable cases, with limited exceptions for cases involving public tranquillity.14

A. Right to life and personal freedom

11 Tinsa Maw Naing v. Commissioner of Police, Rangoon & Another, BLR 1950 SC 37.12 2008 Constitution, Articles 6(e), 21(a)-(b), 353, and 376; The Code of Criminal Procedure,

Sections 60-61, 80-81, 167, 344, 496-497; The Courts Manual, Part IV, Sections 403(1)-411; The Police Manual, Vol. II, Section VII, para. 1785; Attorney General of the Union Law 2010, Sections 36(g) and (i).

13 See for example, The Code of Criminal Procedure, Sections 167(2), 169, and 497(2) & (4).14 The language of the Code of Criminal Procedure, Section 496 is very strong (“such person

shall be released on bail”) reflecting importance of the right to personal freedom. The Police Manual, Vol. II, para. 1354, provides similarly strong language: “If the offence for which the arrest has been made is bailable, the person arrested may at once claim to be released on bail.” (emphasis added)


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Liberty and Bail

Paragraph 1785 of The Police Manual echoes the mandate to release, declaring

that “in bailable cases bail is a right and not a favour; detention in the lock-up

is the alternative, not the original order.” Bail may not be excessive but must

be tailored to the social circumstances of the accused and the nature of the

offence.15

Bail may be granted by the court and police in all non-bailable cases where the

offence alleged is not punishable by death or transportation.16 Section 497(1)

of the Code of Criminal Procedure authorises release on bail at the discretion

of the court in non-bailable cases when it states: “When any person accused of

any non-bailable offence is arrested or detained…he may be released on bail.”

The law only limits the court’s discretion to grant bail when two circumstances

are met: (1) the offence alleged is subject to the death penalty or transportation;

and (2) there exist reasonable grounds to believe the accused is guilty of that

offence.17 Nevertheless, even under these circumstances the court has the

discretion to grant bail where the accused is a woman, juvenile or is sick or

infirm.

The Police Manual also authorises the officer-in-charge of the police station to

release the accused in non-bailable cases “if the offence is non-bailable but not

punishable with death or transportation for life… if [the officer] thinks fit.”

Please see Legal Practice Brief 5 for a detailed discussion of strategies for

lawyers to ensure the protection of this right by challenging unlawful arrest and

detention at remand.

15 The Police Manual, Vol. II, para. 1785.16 Although the language of non-bailable may appear to indicate that bail is not permitted

for these cases, this is not the case; there is simply a higher threshold for release on bail in these cases.

17 The Code of Criminal Procedure, Section 497(1). The Courts Manual, Part IV, Section 481 describes the same procedure permitting bail in non-bailable cases, but omits language limiting mandatory pre-trial detention to defendants accused of offences carrying the death penalty or transportation. While this discrepancy has caused confusion and debate regarding the appropriate application of law to bail practice, as a law enacted by the legislature, the language of the Code of Criminal Procedure must prevail over that of the Courts Manual which is published by the Supreme Court.

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18 The Evidence Act, Section 101.19 See King-Emperor v. U Damapala, 14 Ran (FB) 666.20 See Maung Tin Win v. Union of Burma, 1955 BLR (HC) 146.

The right to be presumed innocent until proven guilty is a fundamental right

and an essential element of a fair trial. The burden of proving that someone

committed an offence rests with the prosecution.18 Until and unless the

prosecution presents the court with adequate evidence lawfully obtained which

shows beyond a reasonable doubt19 that the accused committed the offence, the

accused may not be convicted or treated in any way that implies that he or she

is guilty. The benefit of any doubt as to the strength of the evidence goes to the

accused.20

Because an accused person must be treated as innocent until proved guilty at

trial through lawfully obtained and admissible evidence, bail procedures which

favour release pending trial serve to guard against the negative consequences

of unnecessary and prolonged detention of people not yet convicted of the

alleged offence.

Please see Legal Practice Brief 3 for a detailed discussion of the legal framework

supporting the presumption of innocence in Myanmar and strategies for lawyers

to ensure the protection of this right.

Myanmar’s legal framework unequivocally protects an accused’s right to a

defence. This right is so fundamental to Myanmar’s justice system that the right

is repeated in the 2008 Constitution in Articles 19(c) and 375, as well as the

Code of Criminal Procedure Section 340(1), the Courts Manual Sections 455(1)

and 457(1) and the Prisons Act Section 40, and reiterated in decades of case

law.

B. Right to be presumed innocent until proven guilty

C. Right to a defence


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Liberty and Bail

Significantly, the right to a defence also means that an accused has the right

to be defended by a lawyer at every stage of a criminal proceeding, because

an accused is “dependent on counsel to receive relevant and necessary

information” and a lawyer’s representation may prevent violations of the rights

of the accused.21

In practice, the right to a defence requires an accused to have access to counsel

at the earliest possible time after arrest or suspected involvement in a crime,

the opportunity to communicate confidentially with counsel, and adequate time

and facilities to prepare the defence.22 The right to a defence is only meaningful

if these other rights are upheld and protected, particularly the right to adequate

time and facilities to prepare a defence.

When unlawful bail practices result in pre-trial detention of the accused, the

accused’s access to legal counsel becomes severely restricted. Where the

accused is held in a remote detention facility, geographic barriers make it

difficult for adequate consultation between the lawyer and the accused which

may affect the ability of the lawyer to prepare the defence. Even where lawyers

are able to meet with their clients in police lock-up or prison, communications

between them are not confidential which greatly limits the usefulness of the

consultation. These barriers prevent the accused from participating effectively

in his own defence, undermining his right to defence and representation by a

lawyer while potentially damaging the outcome of his case.

Please see Legal Practice Briefs 1, 2 and 5 for more detailed discussion of the

legal framework supporting the right to defence in Myanmar and strategies for

lawyers to ensure the protection of this right.

21 The Code of Criminal Procedure, Section 340(1); Legal Aid Law (2016), Section 25; The Courts Manual, Part IV, Section 455; Union Attorney General’s Office, Fair Trial Guidebook for Law Officers (2018), p. 32.

22 2008 Constitution, Articles 19(c) and 375; The Union Judiciary Law, Section 3(c); The Code of Criminal Procedure, Section 340(1); Union Attorney General’s Office, Fair Trial Guidebook for Law Officers (2018), pp. 32-33 (Burmese and English).

Defence lawyers can and should challenge their clients’ detention at all stages of criminal proceedings in order to protect their clients’ right to liberty. Defence lawyers should request bail in every case at the first opportunity. When bail is denied, lawyers should reiterate their request for their clients’ release on bail at every opportunity during the proceedings.

This brief offers several practical strategies based on Myanmar law that are available to lawyers. These strategies are not exclusive or exhaustive. Defence lawyers can use one or more of them as appropriate throughout each case. Not all strategies will be successful. We encourage lawyers to think critically about these strategies, continue to refine and improve the ones discussed below, and to think of new strategies in collaboration with colleagues.

IV. Strategies for Protecting the Right to Life and Personal Freedom

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The Constitution of Myanmar states that the right to a defence is a fundamental

right of the people in Myanmar.23 Without the services of a competent lawyer

to provide effective legal assistance in a criminal proceeding that right is hollow,

especially for the poor. In adopting the Legal Aid Law in 2016, the Government

of Myanmar reaffirmed its commitment to the rule of law, making clear that

the right to a lawyer begins from the time of arrest, and for those persons who

cannot afford to hire a lawyer, the government will provide one through the new

legal aid system.24

The earlier a lawyer is engaged following a client’s arrest, the greater opportunity

she will have to advocate for release and intervene to protect the client’s rights

which can result in more favourable outcomes later in the proceedings. By the

same token, the longer a detainee remains unrepresented, the greater the risk of

violations of their rights, harmful consequences to their life and an undesirable

outcome to their case.

Lawyers can and should represent their clients from the time of arrest, including

at the police station immediately following the arrest, at the first remand hearing

(24 hours following arrest) and at subsequent remand hearings. Where lawyers

are able to provide representation at these early stages in the case, they may be

able to prevent violations of their clients’ rights – such as unlawful detention and

forced confessions – which have a cascading effect on their ability to provide

effective representation later in the proceedings.

Please see Legal Practice Brief 5 for a more detailed discussion of strategies for

lawyers to challenge unlawful arrest and detention at remand.

A. Provide representation to detainees as early as possible

23 2008 Constitution, Article 375.24 See Legal Aid Law (2016) (as amended 2017).

Defence lawyers should request release on bail or surety as soon as possible

after beginning representation of the accused and continuously throughout the

remainder of the case.25 Various grounds exist to argue for release on bail from

the time of arrest through the final judgment in the case and during appellate

proceedings. Bail applications can be made to the police, the trial court, the

High Court and the Supreme Court at any stage of the proceedings.

B. Request release early and often

25 In some cases, the client may not wish to be released for personal reasons or as a matter of case strategy (for example, if the client does not wish to contest overwhelming evidence of guilt and detention pending trial will count towards a likely sentence of imprisonment). As with most decisions in the case, defence lawyers should discuss the benefits and consequences of release and continued detention pending trial with the client and proceed according to their client’s instruction.

26 The Code of Criminal Procedure, Schedule 2, Column 5 lists the division of bailable and non-bailable offences. Bailable cases generally carry a possible sentence of 3 years or less, with the exception of breach of trust under the Penal Code, Section 406. Non-bailable cases carry potential sentences of over 3 years or the death penalty, with the exception of cheating under the Penal Code, Section 420.

27 Id. Section 496; The Police Manual, Vol. II, para. 1785.28 The Police Manual, Vol. II, para. 1354.29 The Code of Criminal Procedure, Section 496.

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Bailable cases. If the accused has been arrested for a bailable offence,26 his or

her release on bail is a matter of right27 and the defence lawyer should advocate

for release at every opportunity on the grounds of:

• Constitutional guarantee. Article 353 of the 2008 Constitution

guarantees that nothing shall be “detrimental to the life and

personal freedom of any person,” except in limited circumstances in

accordance with law.

• Bail as a right. Section 496 of the Code of Criminal Procedure

mandates release on bail in all bailable cases as a matter of right.

Whether release is ordered by the court or the police, any person

arrested or detained “may at once claim to be released on bail”28 or at

any stage of the proceedings.29

A request for release on bail may be made orally or in a written application, to the

police or the court at any stage of the proceedings.

A template application for bail in bailable cases is contained in Annex 1.

I.

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Liberty and Bail

“Non-bailable” cases. When the accused has been arrested for a non-bailable

offence, the defence lawyer should request release of the accused on the

following grounds:

• Constitutional guarantee. Article 353 of the 2008 Constitution

guarantees that nothing shall be “detrimental to the life and

personal freedom of any person,” except in limited circumstances in

accordance with law.

• Nature of the penalty. The alleged offence, though classified as

“non-bailable”, does not carry a possible punishment of death or life

imprisonment, and therefore the accused may be released on bail

or surety in accordance with Section 497(1) of the Code of Criminal

Procedure. Paragraph 1354 of the Police Manual also supports this

interpretation of the law.

• Insufficient evidence of guilt. Although the alleged offence does carry

a possible punishment of death or life imprisonment, the evidence is

insufficient to provide reasonable grounds for believing the accused

is guilty of that offence, and therefore release is permitted pursuant

to Sections 169 and 497(1) of the Code of Criminal Procedure.

The defence may argue at any stage that there are not reasonable

grounds for believing that the accused has committed an offence

punishable by death or life imprisonment and should be released on

bail pending any further inquiry into his or her guilt.30

• Vulnerability. Where the alleged offence is punishable by death or life

imprisonment and the judge believes there is sufficient evidence of the

accused’s guilt to continue detention, release may still be requested

on the basis that the accused is a woman, a child, sick or infirm.

Although Section 497(1) permits bail for persons “under the age of

16”, the defence lawyer should argue that Section 3(b) of the newly

enacted Child Rights Law raised the age of maturity or adulthood

to all persons who have not attained 18 years of age, and therefore

the courts should also in their discretion order the release on bail

II.

30 Id., Section 497(2).

of juveniles under the age of 18. Indeed, Section 80 of the new

law prohibits holding a child in police custody and requires police

to “release the child upon signing a bond pledging good conduct if

the child cannot be sent to the Juvenile Court promptly.”31 Doing so

would protect the right to personal freedom in the Constitution and

be in keeping with the spirit of this provision of the Code of Criminal

Procedure which clearly intends to prevent children from being kept

in detention pending trial.

• Community ties and low risk. Defence lawyers arguing for bail should

also emphasise reasons why the accused can be trusted to appear for

his trial, including evidence of good character or behaviour, lack of

prior criminal convictions, no history of absconding in previous cases,

as well as strong community and family ties. In addition, the accused

can offer to meet certain conditions, such as reporting to the police

station at a specified time each week and restricting travel outside

of the region until the trial has ended. These arguments can reassure

judges that the accused will not abscond or commit any offences in

the community before the trial has ended.32

• Appeal to higher court. Bail may be granted by a High Court or

District Court in any case at any time, regardless of the strength of the

evidence against the accused.33 In addition to the grounds detailed

above, defence lawyers can argue additional grounds which justify

release, including: the lower court judge used impermissibly general

terms or failed to identify specific grounds to justify the accused’s

remand;34 the lower court judge failed to afford the accused the

31 The Child Rights Law (2019) provides many relevant protections to children aimed at keeping children out of detention and encouraging their rehabilitation and reintegration to society. See for example, Sections 71-77, which prioritise the non-judicial, non-custodial approaches of diversion and mediation to juvenile justice; Sections 80(e) and (f) prohibiting police custody and detention with adult prisoners; and Section 19(m) which affords children “legal protection from arbitrary infringement of his or her dignity, privacy and security.”

32 However, lower courts should not use “general repute of habitual criminality” to demand bail bonds. See Nga Shwe Ywe v. Crown, 1 LBR 71. See also Crown v. Ngao Nyein, 1 LBR 90.

33 The Code of Criminal Procedure, Section 498(1).34 Id., Section 167(3); The Courts Manual, Section 405.

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opportunity to challenge the grounds for the remand;35 due

to significant delays, detention has become excessive and

disproportionate in violation of the accused’s right to be tried without

undue delay.36

Cash or a bail bond with sureties can be required by the judge, although it is

not required under the law. Bail does not have to be cash but can instead be

a promise from a surety to pay if the accused absconds.37 Judges often impose

eligibility requirements for sureties, such as that they are head of household,

live within the township, or that they own a house. Defence lawyers can make

arguments against the use of such restrictions, which are not founded in the

law.38 In any event, bail must not be excessive but tailored to the accused’s

social condition.39 It is possible to request, instead of or in addition to a bond,

that the accused be released with personal undertakings to return to court.40

Bail arguments may be made orally or in a written application to the police or

the court at any stage of the proceedings. A template application for bail in non-

bailable cases is contained in Annex 1.

35 The Courts Manual, Part IV, Section 403(1). 36 Lawyers interested in learning more about the right to be tried without undue delay

should read Legal Practice Brief 1 on challenging undue delay. 37 The Code of Criminal Procedure, Sections 496 and 499. The law only requires one surety,

see id., Section 499(1). The accused or the surety will be liable for part or all of the bond if the accused absconds, see the Courts Manual, Part IV, Section 523.

38 The Code of Criminal Procedure, Sections 498(1) and (2).39 Id., Section 498.40 Id., Section 497.

Practice Tip: Juvenile Clients

Special protections apply to children accused of crimes who have not attained the age of 18.

For example:

• Non-judicial, non-custodial measures such as diversion and mediation must be

prioritised;

• Handcuffs, ropes or other bindings may not be used;

• A child may not be held in police custody or together with adults;

• A child accused of a crime must be sent to Juvenile Court promptly or else released

upon a bond pledging good conduct;

• Until documentary evidence of age verifies the age of a child, the child is entitled all

the rights afforded to children under the law, if there is any possibility due to his/her

age or appearance that he/she has not attained the age of 18 years.

For more information about special protections which apply to children, please refer to The

Child Rights Law (2019).

Defence lawyers should consider the lawfulness of their client’s arrest and

detention as soon as possible after beginning representation, and continuously

review the lawfulness of detention throughout the case. When an arrest has

been carried out unlawfully, there is a strong argument that detention is also

unlawful and the detainee should be released.41

As a first step, defence lawyers should determine whether the arrest was made

on the basis of sufficient evidence to meet the standard of proof,42 and should

conduct interviews with the client and available witnesses to ascertain the

circumstances of the arrest. To make an arrest without a warrant in a cognisable

case, the police must have received a “reasonable complaint or credible

information”, or otherwise have a “reasonable suspicion” that the person has

committed wrongdoing.43 Where there was inadequate evidence to justify the

arrest, the accused should be released.

For non-cognisable offences, a warrant is required except in certain specified

situations, such as where the arrestee has obstructed a police officer while in

C. Request release on the grounds that the arrest and detention are unlawful

41 See Bo San Lin v. The Commissioner of Police and one, 1948 BLR (SC) 372 (unless the procedure followed for arrest is in accordance with law, the detention is illegal).

42 See Legal Practice Brief 3 on presumption of innocence and the burden of proof for a more detailed discussion of standards of proof required at each stage of criminal proceedings and strategies for lawyers to challenge the adequacy of the evidence put forth by the state.

43 See The Code of Criminal Procedure, Section 54 for further circumstances under which police may make an arrest without a warrant.

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the execution of his duty, or has escaped, or attempted to escape, from lawful

custody.44 The warrant of arrest must itself be based on credible information45

and sufficient grounds46 to believe the accused committed the offence. Where

an arrest warrant is required by law, but the police failed to obtain it before

arresting the accused, there is no legal basis for the arrest and the accused

should be released.47

If the police fail to bring the accused before a judge within 24 hours for the first

remand hearing to determine whether continued detention is both necessary

and lawful, the detention is unlawful and the accused should be released.48

This applies whether the accused is detained in police lock-up or in police

interrogation centres. The judge may only authorise continued detention of the

accused if police provide adequate “grounds for believing that the accusation or

information is well-founded,”49 the judge believes the detention is necessary50,

and the accused has been brought before the court with “opportunity of

showing cause against [remand].”51 In ordering remand, the judge must record

his reasons for doing so with specificity, including the facts which give rise to

the suspicion that the accused committed an offence, and the direction in which

further investigation can be made.52 Unless these reasons are documented with

specificity, the remand order must be considered to be without legal justification,

and the accused must be released.53

44 For the full list please see The Code of Criminal Procedure, Section 54.45 Id., Section 202 authorises the Magistrate to direct investigation “for the purpose of

ascertaining the truth or falsehood of the complaint.”46 Id., Section 204 provides that Magistrates may commence criminal proceedings through

issuance of a summons or warrant “[i]f in the opinion of a Magistrate taking cognisance of an offence there is sufficient ground for proceeding.”

47 See for example Bo San Lin v. The Commissioner of Police and one, 1948 BLR (SC) 372, in which the Supreme Court issued a writ of habeas corpus releasing the accused from detention on the grounds that the arrest was made following a verbal instruction, not a written order as required; as the arrest was executed in the absence of a lawful order, the detention was also unlawful.

48 The Code of Criminal Procedure, Section 167(1).49 Ibid.50 Id., Section 167(2).51 The Courts Manual, Part IV, Section 403.52 The Code of Criminal Procedure, Section 167(3); The Courts Manual, Part IV, Section 405.

See for example, Section 405(2): “A bald statement that the police want time to examine witnesses is not sufficient.”

53 See for example U Zan v. the Deputy Commissioner, Insein and another, 1951 BLR 22, in which the court ordered the release of the accused after finding no evidence in the record to justify the order of detention at the time it was made, declaring that “the practice of directing detention of a person for an indefinite period first and only later to seek materials in support of the order of detention is one not in accordance with law.”

Detention may also be unlawful by virtue of its duration. During police

investigation, the accused may be remanded for a maximum of 15 days if facing

a potential punishment of less than seven years, or a maximum of 30 days for

offences punishable by a term of seven or more years.54 Detention on remand

in excess of these limits is unlawful and requires the release of the accused. If

the court intends to order remand, defence lawyers should request the court to

impose shorter periods of remand to minimise the deprivation of the accused’s

liberty.

Under no circumstances may a person be held in custody pending trial or post-

conviction for longer than the maximum term of imprisonment permitted by

law.55 Repeated adjournments and lack of a clear and reliable timetable in

the proceedings arguably render the detention “indefinite”, or excessive and

disproportionate, in violation of the accused’s right to liberty.56

Even if the accused’s detention was lawful at an earlier stage of the proceedings, it

can become unlawful through a change of circumstances or through the passage

of time.57 For example, if the police originally insisted that the accused was at

the scene of the crime, but during the investigation new evidence comes to light

which indicates that the accused was elsewhere, the defence should argue that

reasonable grounds no longer exist to suspect the guilt of the accused and that

remand is unnecessary and unlikely to assist further investigation efforts.58 At

any stage of the proceedings, where circumstances and strength of the evidence

have changed in favour of the accused, the defence can request release of the

accused on bail on the basis that continued detention is not necessary and any

54 U Zan v. the Deputy Commissioner, Insein and another, 1951 BLR 22. 55 2008 Constitution, Article 373.56 U Zan v. Deputy Commissioner, Insein & Another, 1951 BLR (SC) 188; Thet Tun v. Deputy

Commissioner, Shwebo & Another, 1952 BLR (SC) 33. NB: there is however an exception to this principle under the Emergency Act of 1950.

57 See for example Maung Hla Gyaw v. The Commissioner of Police, Rangoon and one, 1948 BLR (SC) 764, in which the court declared: “[T]here can be no doubt that in spite of the legality of the original arrest and detention in its inception, the Court has the power and is under a duty to direct the release of the prisoner.”; Tinsa Maw Naing v. Commissioner of Police, Rangoon & Another, 1950 BLR SC 37, in which the Supreme Court issued a direction of the nature of habeas corpus to release a defendant held in preventive detention on the basis that circumstances justifying continued arrest had changed.

58 The Code of Criminal Procedure, Section 167.

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Liberty and Bail

further deprivation of liberty is excessive and disproportionate to the alleged

offence.59

Detention is unlawful when:

• The accused is arrested for offences which were not against the law

at the time of commission;60

• The accused is arrested on less than adequate grounds to believe he

committed the offence;61

• The accused is arrested without warrant when a warrant is legally

required;62

• The police fail to bring an arrestee before a judge within 24 hours of

arrest to justify continued detention;63

• Remand during police investigation is granted absent reasons

documented by the judge in writing with specificity;64

• The accused is arrested and detained on discriminatory grounds;65

• Release on bail is not granted in a bailable case;66

• The accused is held in custody for longer than legally permitted;67

• The accused is being detained indefinitely;68

• The accused is imprisoned following a manifestly unfair trial.69

When the detention of the accused is unlawful, the defence lawyer should

request release on bail using arguments outlined above or apply for release

through habeas corpus, an order for release from detention on the basis that

the detention is illegal.

59 Id., Section 167(2), 496, and 497(2).60 2008 Constitution, Article 373.61 The Code of Criminal Procedure, Section 54.62 The circumstances under which arrest without warrant is permitted are listed in the Code

of Criminal Procedure, Sections 54 and 55 and in the Police Manual, Vol II, paras. 1050-1051; by exclusion, all other circumstances require a warrant for an arrest to be lawful.

63 The Code of Criminal Procedure, Section 167(1).64 The Courts Manual, Part IV, Section 405.65 2008 Constitution, Articles 347 and 348.66 Id., Article 496.67 The Code of Criminal Procedure, Section 167(2).68 U Zan v. Deputy Commissioner, Insein & Another, 1951 BLR (SC) 188; Thet Tun v. Deputy

Commissioner, Shwebo & Another, 1952 BLR (SC) 33. NB: there is however an exception to this principle under the Emergency Act of 1950.

69 Union Attorney General’s Office, Fair Trial Guidebook for Law Officers (February 2018), p. 22.

Apply for Writ of Habeas Corpus with the Supreme Court. Habeas corpus

protects the right to personal freedom by authorising the courts to order the

release of any person found be detained unlawfully. The Supreme Court has

the power to issue writs of habeas corpus – ordering the release of detainees –

pursuant to Sections 296(a) and 378(a) of the 2008 Constitution.70 The power

of the courts to review the legality of detention of any individual has long been

recognised in Myanmar jurisprudence, including in the case of Maung Hla Kyaw

v. The Commissioner of Police, Rangoon and one, in which the Court declined to

release the accused but affirmed the power of the Court to review the legal

basis of his detention, stating: “No legislative provisions in the Union can validly

exclude this Court from enquiring into the legality or the sufficiency of any

decision of a judicial or quasi-judicial body.”71

A defence lawyer or anyone acting on behalf of a detainee can file the application

for a writ of habeas corpus with the Director General of the Supreme Court.72

The application must include a personal justification letter and affidavit from

the detainee explaining why his detention is illegal.73 Defence lawyers may

argue that a client’s arrest or detention is unlawful on a number of the grounds

discussed above. Once an application passes an initial round of review by the

Director General, it proceeds before a Justice of the Supreme Court as a general

petition.74 The Justice may rule on the petition with or without a hearing.75 The

detaining authority may be summoned for a hearing—at which both sides may

present arguments—or may be required to submit a written explanation to the

Court.76 If undecided, the case eventually proceeds to a final hearing before

three Supreme Court Justices.77

I.

70 2008 Constitution, Articles 296(a)(i), 378(a)(1) and 18(c).71 Maung Hla Gyaw v. The Commissioner of Police, Rangoon and one, 1948 BLR (SC) 764,

767.72 See International Commission of Jurists, Handbook on Habeas Corpus in Myanmar (May

2016), pp. 17-18 (citing Law on the Application for Writs, Section 4 (Law No. 24/2014).73 Ibid., (citing 2014 Writs Law, Sections 4 and 6; Procedural Rules and Regulations for

Applications of Writs, Section 4 (Union Supreme Court Notification no. 117/2013)).74 Ibid., (citing 2014 Writs Law, Section 8; 2013 Writs Rules, Sections 6-7).75 Ibid., (citing 2013 Writs Rules, Section 8).76 Ibid., (citing 2013 Writs Rules, Sections 9, 12-15).77 Ibid., (citing 2014 Writs Law, Sections 7(b), 11; 2013 Writs Rules, Sections 17-18).

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Liberty and Bail

Although the writ of habeas corpus is in theory a powerful protection against

unlawful detention, in practice the application procedure and adjudication

can take months to complete and result in lengthy delays in the defendant’s

case. According to research conducted in 2016, there were no known cases

of the Supreme Court issuing this writ since the 2008 Constitution went into

effect, despite multiple applications for release.78 Nevertheless, defence

lawyers should strongly consider seeking a writ of habeas corpus from the

Supreme Court where the accused has been illegally detained, in order to

create more modern precedent relating to its use, and as a last resort when

other efforts to obtain release fail.

78 See id., p. 22.79 The Code of Criminal Procedure, Section 491(1)(b).80 Research conducted for a report published in 2016 found no examples of this remedy

being used since 1962. See International Commission of Jurists, Handbook on Habeas Corpus in Myanmar (May 2016), pp. 18- 19.

81 Yangon High Court decision on 25 July 2019, in Criminal (Juvenile) Case No: 4/2019, Thin Gan Gyun Township Court.

82 Ibid.

Apply to the High Court for a Direction of the nature of a habeas corpus. The

High Court also has the power to make an order for the release of any person

it believes to be “illegally or improperly detained in public or private custody”

in a direction of the nature of habeas corpus. Although rarely used in modern

times,80 this is a remedy that defence lawyers should pursue, especially when the

police and the lower court judge repeatedly refuse bail. Recent efforts to revive

the practice of seeking release through Section 491 of the Code of Criminal

Procedure have been accepted by the Yangon High Court, where defence

lawyers requested release of the juvenile defendant on the basis that he was

held illegally in police lock-up.81 In this case, the High Court never reached a

decision on the merits of this Section 491 request as the juvenile defendant

was quickly transferred to a training school, but filing the application prompted

the police to correct the illegal detention. Relief under this section offers a more

accessible and potentially more efficient remedy than pursuing a writ of habeas

corpus before the Supreme Court as it is possible to apply to the High Court in

the local region instead of to NayPyiTaw.82

II.

Request the law officer to agree to release. Law officers must scrutinise remand

requests according to the Attorney General of the Union Law,83 the Attorney

General Rules and other provisions of existing laws to prevent unlawful arrest

when the prosecuting bodies make a request for remand. They must also

scrutinise the evidence and investigation carried out in a case to determine

whether prosecution is justified and to consider whether any or all of the

prosecution’s case should be withdrawn.84

Using the arguments above, the defence lawyer should request that the law

officer not contest the accused’s release on bail. The law officer should be

reminded of his duty to scrutinise the strength of the evidence and the

lawfulness of the arrest and detention, whether during the remand period or

at trial, and consider whether the accused can be released on bail. The defence

lawyer should highlight police failures, aspects of the arrest or detention which

were unlawful, and weaknesses in the investigation or the evidence which

warrant release on bail in accordance with law. Though this sort of request is

rarely made in practice, there is nothing in the law which prohibits the defence

lawyer from advocating to the law officer.

It is worth noting that there may be strategic reasons for not addressing the law

officer on certain matters if, for instance, the defence lawyer does not wish to

give them the opportunity to address shortcomings in the evidence in his or her

preparation for trial.

III.

83 Attorney General of the Union Law 2010, Section 36(g) provides that law officers shall scrutinise “as to whether or not the request of remand by the prosecuting body is in conformity with the existing laws, orders and directives.”

84 Id., Section 36(h) and (i).

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Liberty and Bail

Practice Tip: Advising the client on terms of release

If your client is released on remand, there may be conditions attached to his or her bail. For

instance, your client may be required to report to the police station or court at regular intervals

or on specified dates. The judge may also forbid him or her from contacting certain witnesses

in the case.

As their defence lawyer, you must ensure your client understands the potential consequences

of violating the terms of release and advise against actions that may prejudice his or her case

or jeopardise continued release.

Read carefully the bail conditions and advise your client accordingly. If your client fails to

appear at a court-mandated check-in or hearing, the client may be re-detained. Your client can

also undermine his or her case, if for instance, your client contacts witnesses in breach of his or

her bail conditions, which may be seen to be tampering with evidence.

Annex 1: Template Arguments

25


For every legal argument, you must: 1. State the legal basis for your request2. Identify the relevant facts 3. Explain why detention is unlawful, disproportionate or unnecessary 4. Ask for a specific remedy (release)

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Liberty and Bail

Your Honour,

I am the lawyer instructed by [name] to make an application for bail at this time. My client

is charged under [insert Penal Code section] with [insert offence].

I remind your Honour of my client’s right not to be detained arbitrarily, which is protected

under Article 353 of the 2008 Constitution. The case of Tinsa Maw Naing v. Commissioner

for the Police, Rangoon & Another, BLR (1950) SC 37 confirmed that this right “is not lightly

to be interfered with and the conditions and circumstances under which the legislature

allows such interference must be clearly satisfied and present.” It is my submission that

circumstances do not exist in my client’s case to justify this interference.

Your Honour, my client is being charged with a bailable offence, and therefore there

is a presumption in favour of bail being granted.85 As it is written in the Police Manual

Paragraph 1785, “bail is a right and not a favour; detention in the lock-up is the alternative,

not the original order.” Indeed, the Code of Criminal Procedure states that you should only

order continued remand when there is sufficient evidence “rais[ing] suspicion” that the

accused committed the offence and further evidence is likely to be obtained by remand.86

Your Honour, to date the police have failed to provide any evidence to justify their

reasonable belief of my client’s guilt. The only evidence that has been provided to my

client by the police is [insert summary of evidence that has been given, and explanation of

why it is insufficient to justify a reasonable belief of guilt].

For the reasons I have outlined above your Honour, there is a lack of sufficient evidence to

suspect that my client committed this offence. Therefore, further time in remand is not justified.

A. Oral application for bail at remand hearing (bailable offence)

27

In light of all of the above, I respectfully request your Honour to grant my client bail to be

released at the earliest opportunity. If you do decide that an extension of the remand is

necessary, I respectfully request you to identify specific grounds for suspecting that my

client committed the offence and provide direction as to how the police should investigate

further, in line with Section 344 of the Code of Criminal Procedure.


85 The Code of Criminal Procedure, Section 496.86 Id., Sections 167 and 344.

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Liberty and Bail

Your Honour,

I am the lawyer instructed by [name] to make an application for bail at this time. My client

is charged under [insert section of the Penal Code] with [insert offence], which carries a

maximum offence of [insert maximum sentence here].

Your Honour, my client was arrested on [insert date], but this is the first time an

application for bail is being made. The police discouraged my client from seeking legal

representation whilst [he/she] was remanded in custody, and failed to bring my client

to appear before this court within 24 hours of the arrest being made, in violation of

Article 21(b) of the Constitution of Myanmar, and Section 167(1) of the Code of Criminal

Procedure.

I remind your Honour of my client’s right to personal freedom and not to be detained

arbitrarily, which is protected under Article 353 of the 2008 Constitution. The case of Tinsa

Maw Naing v. Commissioner for the Police, Rangoon & Another, BLR (1950) SC 37 confirmed

that this right “is not lightly to be interfered with and the conditions and circumstances

under which the legislature allows such interference must be clearly satisfied and present.”

It is my submission that circumstances do not exist in my client’s case to justify this

interference.

Your Honour, my client is charged with a non-bailable offence, as per Schedule II of the

Code of Criminal Procedure.

[If the offence is not punishable by death or life imprisonment:] However, the offence

charged is not punishable by death or life imprisonment, and therefore pursuant to the

Code of Criminal Procedure Section 497(1) the court may in its discretion grant bail.

B. Oral application for bail at remand hearing (non-bailable offence)

29

My client requests release on bail on the following grounds:

To date, the police have not provided any evidence to justify their reasonable belief of my

client’s guilt. The only evidence that has been provided to my client by the police is [insert

summary of evidence that has been given, and explanation of why it is insufficient to justify

a reasonable belief of guilt]. In accordance with Section 497(2) of the Code of Criminal

Procedure, my client should therefore be granted bail today.

My client appreciates that the Court may be concerned that [he/she] will fail to surrender or

commit a further offence whilst on bail. In fact, my client has no previous convictions, and

has demonstrated good character through [his/her] voluntary work in the community. [He/

she] has an interest in cooperating in these proceedings, which [he/she] will hope to have

resolved as soon as possible so that [he/she] can continue [his/her] professional, family and

community commitments. My client is willing to report to the police station on a regular

basis to demonstrate [his/her] commitment to cooperating with the court.

My client’s [insert family connection], [insert name], has presented as a surety and is willing

to post a bond for my client’s release.87 [He/she] is a credible surety, being [insert credentials,

e.g. a schoolteacher, the head of their own household, and an upstanding member of the

community]. [He/she] also lives within the same area as my client, and can therefore help to

ensure my client complies with [his/her] bail conditions.

Your Honour, this is an application for bail on behalf of [insert name]. Please do let me know

if I can assist Your Honour in any other way.

87 Id., Sections 499 and 496. The law only requires one surety, see Section 499(1). The accused or the surety will be liable for part or all of the bond if the accused absconds, see The Courts Manual, Part IV, Section 523.


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Liberty and Bail

Your Honour,

I am the lawyer instructed by [insert name] to make an application for bail at this time.

My client is charged under [insert section of the Penal Code] with [insert offence], which

carries a maximum sentence of [insert maximum sentence here]. My client has previously

been refused bail [insert number of times bail was refused] before District Judge [insert

name and court].

I remind your Honour of my client’s fundamental right to personal freedom and right not

to be detained arbitrarily, which is protected under Article 353 of the 2008 Constitution.

The case of Tinsa Maw Naing v. Commissioner for the Police, Rangoon & Another, BLR (1950)

SC 37 confirmed that this right “is not lightly to be interfered with and the conditions

and circumstances under which the legislature allows such interference must be clearly

satisfied and present.” It is my submission that circumstances do not exist in my client’s

case to justify this interference.

Your Honour, on every occasion that bail has been requested, District Judge [name] has

failed to provide specific grounds for suspecting the accused of being guilty, and has not

provided any direction to the police on how to investigate the case further. In fact, two

of the written remand forms for my client were not even signed by the District Judge, and

one is completely illegible. All of these omissions by the District Judge contravene Section

344 of the Code of Criminal Procedure and violate my client’s right not to be detained

arbitrarily.

Your Honour, the police have also committed multiple failures in this case. Firstly, they

failed to take my client before an officer in charge of the police station, so that his

C. Oral application for bail at the High Court

31

detention could be reviewed, as soon as possible after his arrest.88 Secondly, they failed to

bring my client before a judge within 24 hours for a review of the necessity and lawfulness of

detention.89 Thirdly, they have failed to investigate the case diligently and expeditiously, and

so it is difficult to see how one could argue that further detention is necessary. All of these

failures have rendered the detention unlawful at different stages, as confirmed in the case

of Bo San Lin v. The Commissioner of Police and one (1948) BLR (SC) 372.

Your Honour, there is a time sensitivity to the High Court granting bail today. My client has

now been detained for over 45 days. You will be aware that under the Code of Criminal

Procedure, an accused may only be remanded for up to 15 days at a time if facing a potential

punishment of less than seven years.90 The court has already extended the period of

detention by a further 30 days beyond that maximum, on the basis that the police had

requested time to further investigate and examine witnesses. This is in spite of Section

405(2) of the Courts Manual which states that such simple reasons for extending remand

will not be sufficient.91 It is my submission that a further [insert timeframe] is not necessary

for the continued investigation of this offence. The police have failed to show that they

are acting diligently and expeditiously in investigating the alleged offence. This lack of a

clear timetable for the investigation and any subsequent trial risks rendering the detention

indefinite or at least excessive and disproportionate, which the case of U Zan v. Deputy

Commissioner, Insein & another, 1951 BLR (SC) 33 stated would violate the right to liberty.

Your Honour, on behalf of my client, I request the High Court to make an order granting bail

to the accused. Please do let me know if I can assist your Honour in any other way.

88 The Code of Criminal Procedure, Section 60.89 Id., Section 167(1).90 Id., Section 167(2).91 The Courts Manual, Part IV, Section 405(2).92 U Zan v. Deputy Commissioner, Insein & Another, 1951 BLR (SC) 188; Thet Tun v.

Deputy Commissioner, Shwebo & Another, 1952 BLR (SC) 33. NB: there is however an exception to this principle under the Emergency Act of 1950.


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Liberty and Bail

D. Form 71 – Written application for bail at a remand hearing

_______________ Court

20XX, Criminal Regular/General Case No. XXXX

_______________ _______________ Prosecutor

And

_______________ _______________ Accused

Application for bail from detention on remand

_______________ , Accused from the above-mentioned case would like to apply as

follows:

1. The Applicant is the accused of the above-mentioned case and the accused has been

charged under Section _______________ of the _______________, which carries a

maximum sentence of _______________.

2. The Applicant’s fundamental right to personal freedom is protected under Article 353

of the 2008 Constitution. The case of Tinsa Maw Naing v. Commissioner for the Police,

Rangoon & Another, BLR (1950) SC 37 confirmed that this right “is not lightly to

be interfered with and the conditions and circumstances under which the legislature

allows such interference must be clearly satisfied and present.” It is my submission

that circumstances do not exist in the Accused’s case to justify this interference.

3. This [Township/District Court] is empowered under Sections 167 and 344 of the

Code of Criminal Procedure to refuse continued police remand and to grant release

on bail. [Insert further relevant law as applicable].

4. [Insert arguments about lawfulness of arrest and detention].

5. [Insert arguments about the length, proportionality and necessity of detention].

6. [Insert arguments relating to the accused’s character and ability to comply with bail

conditions].

33

7. The Accused respectfully requests the Court to grant bail to be released at the earliest

opportunity. In the event that an extension of the remand is deemed necessary,

the Accused requests you to identify specific grounds for suspecting that my client

committed the offence and provide direction as to how the police should investigate

further, in line with Section 344 of the Code of Criminal Procedure.

Best Regards,

_______________ Town/City

_______________ of _______________ , 20XX


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Liberty and Bail

E. Form 71 – Sample application for bail at a remand hearing

_______________ Court

20XX, Criminal Regular/General Case No. XXXX

_______________ _______________ Prosecutor

And

_______________ _______________ Accused

Application for bail from detention on remand

_______________ , Accused from the above-mentioned case would like to apply as

follows:

1. The Applicant is the accused of the above-mentioned case and has been charged

under Section _______________ of the _______________, which carries a

maximum sentence of _______________.

2. The Applicant has currently been detained for 18 days. You will be aware that under

the Code of Criminal Procedure, an accused may only be remanded for a maximum

period of 15 days if facing a potential punishment of less than seven years.93 The

period of detention has already extended beyond the maximum permitted by law,

without charges being filed by the police. My client is required to be immediately

released on bail.

3. The Applicant’s fundamental right to liberty is protected under Article 353 of the

2008 Constitution. The case of Tinsa Maw Naing v. Commissioner for the Police,

Rangoon & Another, BLR (1950) SC 37 confirmed that this right “is not lightly to

be interfered with and the conditions and circumstances under which the legislature

allows such interference must be clearly satisfied and present.” It is my submission

that circumstances do not exist in the accused’s case to justify this interference.

35

4. This [Township/District Court] is empowered under Sections 167 and 344 of the Code

of Criminal Procedure to refuse continued police remand and to grant release on bail.

Specifically, the Code states that the Court should only order continued remand when

there is sufficient evidence “rais[ing] suspicion” that the accused committed the offence

and further evidence is likely to be obtained by remand.94 [If bailable offence: As the

Applicant is being charged with a bailable offence, there is a presumption in favour of

bail being granted.95]

5. For the reasons highlighted here, your Honour, my client’s fundamental rights under

Article 353 of the 2008 Constitution and Section 167(2) of the Code of Criminal

Procedure have been violated, and my client must be immediately released on bail.

6. It is also the Applicant’s submission that the police have committed multiple failures

in this case, which have also rendered the detention unlawful. Firstly, they failed to

bring the Applicant before a judge within 24 hours for a review of the necessity and

lawfulness of detention contrary to Section 167(1) of the Code of Criminal Procedure.

Secondly, the police failed to take the Applicant before an officer in charge of the police

station, so that his detention could be reviewed, as soon as possible after his arrest,

contrary to Section 60 of the Code of Criminal Procedure. These failures have rendered

the detention unlawful, as confirmed in the case of Bo San Lin v. The Commissioner of

Police and one (1948) BLR (SC) 372.

7. My client has no previous convictions, and has demonstrated good character through

his voluntary work in the community and as a loyal husband and family man. He has

an interest in cooperating in these proceedings, which he will hope to have resolved

as soon as possible so that he can continue his professional, family and community

commitments. My client is willing to report to the police station on a regular basis to

demonstrate his commitment to cooperating with the court. My client’s brother, C,


93 The Code of Criminal Procedure, Section 167(2).94 Id., Sections 167 and 344.95 Id., Section 496.

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Liberty and Bail

has presented as a surety and is willing to post a bond for his release.96 His brother

is a credible surety, being a schoolteacher, the head of his own household, and

an upstanding member of the community. He also lives within the same area as

my client, and can therefore help to ensure that my client complies with his bail

conditions.

8. The Applicant respectfully requests the Court to grant bail to be released at the

earliest opportunity. In the event that an extension of the remand is deemed

necessary, the Applicant requests you to identify specific grounds for suspecting

that my client committed the offence and provide direction as to how the police

should investigate further, in line with Section 344 of the Code of Criminal

Procedure.

Best Regards,

_______________ Town/City

_______________ of _______________ , 20XX

96 The Code of Criminal Procedure, Sections 499 and 496. The law only requires one surety, see Section 499(1). The accused or the surety will be liable for part or all of the bond if the accused absconds, see the Courts Manual, Part IV, Section 523.

F. Representations to the law officer

Sir/ Madam, my client has been detained on remand since his arrest on [DATE]. I am making

an application for bail on my client’s behalf.

I seek to respectfully request that you do not resist this application for bail. You are aware of

your duty to scrutinise the police request to continue the client’s detention.97 In reviewing

the request, I would ask you to bear in mind the fact that the police have failed to show

how continued detention is necessary or proportionate. There is only very limited evidence

implicating my client, and substantial evidence which indicates that my client could not

have been present at the scene of the crime. [Add specific examples here if relevant].

Furthermore, the police have failed to act promptly in investigating this case, rendering the

length of my client’s detention disproportionate. In light of your duty to scrutinise the police

request, you have the power to refrain from supporting my client’s ongoing detention.

37


97 Attorney General of the Union Law 2010, Section 36(g) provides that law officers shall scrutinise “as to whether or not the request of remand by the prosecuting body is in conformity with the existing laws, orders and directives.”

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