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2019

5Legal Practice Brief:

Remand

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 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 Fundamental Rights by Ensuring

Early Access to Counsel

Annex 1: Template Arguments

A. Oral application for police bail (bailable offence where warrant not required)

B. Oral application for police bail (non-bailable offence)

Contents

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3

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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 deny people 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 empowering 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: from the moment of arrest, detention of the accused must be well justified by adequate evidence to believe the accused has committed the alleged offence. The police, law officers and courts all have a responsibility to ensure that no one is detained without legal basis. In practice, courts, police, law officers and lawyers do not ensure proper consideration of the legal basis to detain the accused in the early stages of case proceedings (known as the police investigation period or remand period3), resulting in routine detention of the accused for the maximum period allowable under law, which violates the fundamental rights of the accused. This legal practice brief outlines the relevant legal framework relating to remand of the accused during police investigation, the rights violated by existing practices

I. Introduction

Legal Practice Brief 5

1

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

2 See Legal Practice Brief 3 on presumption of innocence and burden of proof.3 In this brief, the period between arrest and the filing of the police charges will be

referred to variously as the “police investigation period”, “remand period”, or simply “remand”.

Remand

2

and proposes avenues of litigation available within existing law to assist lawyers seeking to challenge these unlawful practices and secure the accused’s release from detention on remand.

We are grateful to the communities of lawyers in Yangon Region, Mon State, Mandalay Region, Shan State and Bago Region who contributed the enthusiasm and ideas which form the basis of this brief, and hope that legal practitioners across Myanmar feel empowered by the innovations of their colleagues to strengthen their own practice to better protect clients’ rights.

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 arrested and detained only where there are adequate grounds to believe the person has committed a criminal offence.

To protect this right, Article 376 of the Constitution requires that any person arrested and detained on suspicion of committing a crime be brought before a competent judge within 24 hours of arrest so that the legal basis of his detention may be reviewed.5 If the court finds grounds to believe the accusation is well-founded and additional time is necessary for the police to conduct further investigation, an additional period of remand may be ordered.6 Myanmar laws allow for every accused to be represented by a lawyer from the time of arrest and requires judges to allow the accused – or his/her defence lawyer – to argue against continued detention pending further police investigation.7

Existing practice at remand hearings does not adhere to the law. Despite these constitutional and legislative requirements, 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

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 2008 Constitution, Articles 21(b) and 376; The Code of Criminal Procedure, Sections 61 and 167; The Courts Manual, Section 403.

6 The Code of Criminal Procedure, Section 167; The Courts Manual, Part IV, Section 405.7 2008 Constitution, Article 375; The Code of Criminal Procedure, Section 340(1); Legal

Aid Law (as amended 2017), Section 25; The Courts Manual, Part IV, Section 403; The Police Manual, Vol. II, para. 1349.

3


scrutinised. Police requests for remand are routinely granted for the maximum period permitted by law (15 or 30 days, depending on the type of case8), outside the presence of the accused, and without representation by a defence lawyer.

Most detainees in Myanmar do not have access to lawyers, especially at early stages of the proceedings, which renders them virtually helpless to challenge the legality of their detention or request release on bail. Even when detainees are eventually represented by lawyers, most defence lawyers do not provide representation during remand hearings. Research conducted by Justice Base in 2017 found that in 135 cases out of 155 in which the defendant eventually hired a lawyer, the defendant did not receive legal representation until the first day of the inquiry stage or later.9 This means that in 87 percent of these cases, defence lawyers were not present during remand hearings to challenge the basis of arrest and detention. For poor and marginalised people who cannot afford to hire a lawyer, the risk of being detained unlawfully and without remedy would be even higher.

The role of defence lawyers at remand is misunderstood by courts, police and lawyers alike as the practice of providing representation at remand has apparently atrophied from decades of disuse.10 Judges are accustomed to conducting remand hearings in the absence of defence lawyers or the accused. Many lawyers also do not believe that they have a responsibility to represent a client until the case is committed to court for trial.11 Lawyers are frequently unaware that they can submit their power of attorney during the police investigation period. While customarily lawyers submit the power of attorney at the first hearing after the case has been

8 The Code of Criminal Procedure, Section 167(2).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 Several senior advocates, including former law officers and judges, report that in earlier

decades lawyers did more commonly provide representation at remand.11 I.e., at the conclusion of police investigation, pursuant to the Code of Criminal

Procedure, Section 170.

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Remand

committed for trial, Myanmar law does not prevent lawyers from doing so at an earlier stage. Without full understanding of their rights, defendants rarely contact defence counsel during this stage, reinforcing the belief that lawyers play no role at remand.

When defence lawyers do attempt to provide representation at remand, judges will sometimes refuse to allow the lawyer to be present in the courtroom, prohibit them from making any argument against remand, or refuse to record their argument in the court record. Lawyers participating in the Communities of Practice report that police and judges sometimes reject the right to counsel during remand because they do not consider remand proceedings to be “in court”. However, nothing in Myanmar law, regulations or case law prohibits representation by lawyers at remand.12

Without defence lawyers present to contest the basis of arrest and detention, judges rarely consider the lawfulness of the arrest and whether reasonable grounds exist to keep the person in detention on remand. Even when defendants do have legal representation at early stages of the case, their lawyers often failed to contest the legality of the arrest and detention of the accused, request release on bail, or make motions regarding their clients’ treatment in custody or the length of time they had spent in detention.13

These practices violate the accused’s right to liberty, heighten the risk of illegal arrest and detention and have serious consequences for Myanmar’s entire justice system. Public trust in the criminal justice system depends on the hope that the courts will not deprive people of their basic freedoms without a lawful basis for doing so. When the legality of the arrest and detention are not fully scrutinised

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12 The authors attempted at length to ascertain any written legal basis for the argument that lawyers may not represent clients at remand and have found none. However, if readers are aware of any such laws, regulations or case law which explicitly articulate this prohibition, they are encouraged to share it with us.

13 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.


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by the courts and go unchallenged by defence lawyers, the incidence of arbitrary and unlawful arrest and detention persists unaddressed, exemplifying injustice and undermining confidence in the actors responsible for the fair and effective application of law – judges, police and lawyers.

Unlawful detention during remand and pending trial can also have a devastating effect on the case, the accused and his/her family. Detention during remand, without the benefit of legal counsel weakens the ability of the accused to advocate for his/her rights, make informed decisions and participate meaningfully in his/her own defence. Detention during remand also makes the accused more vulnerable to mental and physical abuse while in custody, as police may rely on unlawful threats, inducements and violence to secure a confession or other evidence for trial. Injuries and illness suffered in detention may result in lasting mental and physical disability long after release. Pre-trial detention can also lead to the loss of livelihood and security, setting off a chain of events that can entrench families more deeply in cycles of poverty and recidivism. For the innocent accused, these consequences have a profound impact that acquittal can never effectively redress.

Defence lawyers have a critical role to play in advocating for and ensuring their clients’ personal freedom: by providing legal advice and representation from the time of arrest and during remand, they can prevent unlawful arrest and detention consistent with the requirements of Myanmar law.

Remand

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

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

Detention pending investigation can violate and implicate fair trial rights recognised and protected by Myanmar law, including the right to a defence, the right not to be subject to arbitrary arrest and detention and the right to be presumed innocent until proven guilty.

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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, 1950 BLR SC

37 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.14

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 Section 167 of the Code

of Criminal Procedure which sets out the legal basis on which a court may order

continued detention pending further police investigation.15

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.16 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 with surety.17 Close scrutiny of the basis for continued

detention pending police investigation is required to protect the public from

abuse of police powers, as the courts recognise that “[c]ases of illegal detention

in police custody are far too frequent.”18

A. Right to life and personal freedom

14 Tinsa Maw Naing v. Commissioner of Police, Rangoon & Another, 1950 BLR SC 37.15 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, para. 1785; Attorney General of the Union Law 2010, Sections 36(g) and (i).

16 The Code of Criminal Procedure, Section 167(2); The Courts Manual, Part IV, para. 405.17 See for example the Code of Criminal Procedure, Sections 167(2), 169, and 497(2) and (4).18 The Courts Manual, Part IV, Section 410.

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Remand

Defence lawyers must become involved in the early stages of the case, from the

time of arrest onward, so that they are able to effectively challenge the legal

basis of the accused’s arrest and detention and protect the accused from further

violations of his/her right to liberty.

Please see Legal Practice Brief 4 for a detailed discussion of strategies lawyers

can use to secure their clients’ release on bail.

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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.

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.19 The right to legal representation from the time of arrest and

at remand is explicitly recognised in Section 25 of the Legal Aid Law, which also

reinforces the right to legal representation throughout all criminal proceedings,

including during trial and on appeal.20 The accused also must be produced and

present for argument regarding his continued remand; where a remand order is

made in his absence and he is not permitted the opportunity to oppose remand,

his right to a defence is violated.

B. Right to a defence

19 The Code of Criminal Procedure, Section 340(1); Legal Aid Law 2016 (as amended 2017), Section 25; The Courts Manual, Part IV, Section 455; Union Attorney General’s Office, Fair Trial Guidebook for Law Officers (2018), p. 32.

20 Legal Aid Law 2016 (as amended 2017), Section 25.21 The Evidence Act, Section 101.22 See King-Emperor v. U Damapala, 14 Ran (FB) 666.23 See Maung Tin Win v. Union of Burma, 1955 BLR (HC) 146.


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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.21 Until and unless the

prosecution presents the court with adequate evidence lawfully obtained which

shows beyond a reasonable doubt22 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. 23

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

trial through lawfully obtained and admissible evidence, legal representation

during remand to challenge the legal basis for continued detention can 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.

C. Right to be presumed innocent until proven guilty

Early access to legal representation can prevent violations of fair trial rights and

is a precondition for the effective protection of the rights of the accused. If an

accused does not have a lawyer in the early stages of arrest and detention, he/

she may not understand his/her rights, may be induced or threatened into giving

a false confession or adverse statement, may be deprived of his/her freedom

for longer than permitted by law and may suffer physical and mental abuse,

causing irreparable damage to his/her case and person. The earlier a lawyer is

engaged following a client’s arrest, the greater opportunity the lawyer will have

to advocate for release, challenge the legality of the arrest and other police

actions, familiarise herself with the circumstances of the case, and properly

advise the client as to the strength of the case and options at trial.

Remand

11

Defence lawyers can and should seek to provide legal advice and representation to their clients at the earliest opportunity. Prompt access to legal advice from the time of investigation is critical to ensure that the accused is aware of his/her rights, and that his/her rights are protected. Defence lawyers should challenge their clients’ detention at all stages of criminal proceedings in order to protect their clients’ right to liberty, particularly at the remand stage. Defence lawyers should contest the legality of the arrest and detention at remand and request bail in every case at the first opportunity. If 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 during remand. 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 Fundamental Rights by Ensuring Early Access to Counsel


12

Remand

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

right of the people in Myanmar.24 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 access to justice, 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.25

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

he/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.

A. Represent detainees as soon as possible after arrest

Request access to detainees in police custody. Lawyers can request access

to police lock ups and court lock ups to meet detainees in order to ascertain

whether they have or need legal representation, to obtain a power of attorney,

and to advise the accused.

I.

24 2008 Constitution, Article 375.25 Legal Aid Law 2016 (as amended 2017).

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To gain access to detainees, defence lawyers can assert the right to counsel as

protected in the Constitution and refer specifically to Section 25 of the Legal Aid

Law, which mandates that a competent lawyer be provided to the accused at the

time of arrest or detention at the police station and during criminal investigation

or scrutiny by the police.26 The right to a defence and to communicate with a

lawyer applies in all cases, including where the accused has been arrested and

detained in a police lock-up or in police interrogation centres.27

Paragraph 1198(c) of the Police Manual also directs police to permit persons in

police custody to meet with lawyers – or friends – between sunrise and sunset.28

No laws or regulations require a signed power of attorney as a condition for access

to a pre-trial detainee in police custody, so defence lawyers should argue for

access whether or not they have already obtained a signed power of attorney.29

In fact, the Courts Manual recognises that lawyers must have access to detained

clients first in order to obtain the power of attorney.30

The Union Attorney General’s Office also recognises the need for detainees

to “consult and communicate with counsel without delay, interception or

censorship” in its Fair Trial Guidebook for Law Officers, which also notes that

adequate facilities and time should be provided for detainees and lawyers to

communicate privately in person or by telephone both at the police station and

in places of detention.31

When a lawyer is meeting with detainees, the police or prison sentry should

provide a setting in which communications between the lawyer and the detainee

26 Legal Aid Law 2016 (as amended 2017).27 Because police may be unaccustomed to permitting detainees access to counsel at the

lock-up, defence lawyers may face resistance in spite of the strong legal basis on which they are requesting access. Lawyers report that it may be easier for lawyers to attend the police station requesting access to a potential client where the lawyer has already become aware that someone specific has been detained.

28 The Police Manual, Vol. II, para. 1198(c).29 The Courts Manual, Part IV, Section 455, sets out the circumstances in which a power of

attorney is required, and does not require a power of attorney in order to access under-trial detainees in the custody of the police.

30 Ibid.; High Court Notification No. 2 (General), dated 16 February 1927.31 Union Attorney General’s Office, Fair Trial Guidebook for Law Officers (February 2018), p. 32.32 Prisons Act 1894, Section 40.


remain confidential.32 This means that no police or prison sentries should be

standing close enough to overhear the conversation; although sentries have a

duty to prevent the escape of prisoners under their supervision, they can do so

whilst creating adequate space to ensure privacy.

Confidentiality of communications is very important for ensuring a positive

relationship between the lawyer and the accused, including for establishing trust

and enabling the accused to give clear instructions about his/her circumstances

and how he/she wishes to be represented at remand and trial. Confidentiality is

also an ethical obligation of lawyers to their clients, and it is the defence lawyer’s

responsibility to ensure communications with clients can be held in a confidential

manner.

Practice Tip: Simple Checklist for Meeting with Detainees

• Ask the police/prison sentry to provide a confidential space in which to communicate with

the detainee.

• Advise the detainee that he/she has the right to be represented by a lawyer, the right to

be presumed innocent until proven guilty, the right not to be forced to confess and other

rights relating to a fair trial. If they cannot afford to hire counsel, provide the detainee with

information about the local legal aid board which may provide free legal aid.

• Explain the power of attorney and obtain a signed power if the detainee accepts your repre-

sentation. Once the power is signed:

◦ Explain that lawyer-client communications are confidential.

◦ Interview the client about the facts of the case, possible witnesses, next court hear-

ing, and contact details for family members.

◦ Advise the client of potential options and outcomes in the case, discuss possible

release on bail and take instructions for next steps.

◦ Ask if the client has any other questions or concerns, and address any questions

the client may have.

• Request the police to release the client on bail in all bailable cases, all non-bailable cases in

which the penalty is not death or life imprisonment, and where the client has been held for

more than 24 hours without remand ordered by a judge.

Remand

14

Request police bail. When defence lawyers begin representing the accused

soon after arrest, and at the police station, they have the opportunity to learn

valuable information about the case and prevent or reduce subsequent rights

violations against the accused.

Defence lawyers should ask the police about the circumstances leading up

to the arrest, the nature of the suspected offence, possible complainants and

witnesses and reasons for detaining the accused. This will allow the defence

lawyer to determine whether a warrant was required or an exception applies,

whether the case may be bailable, and to conduct an early assessment of the

strength of the case against the accused. Where the arrest was unlawful, the

defence lawyer should notify a senior police officer, request release on bail and

confirm the intention to bring the issue before a judge.33

If the accused has been charged with – or is being investigated for – a bailable

offence, or the arrest warrant is endorsed with a provision for release on bail,

and if the accused is able to post bail, the defence lawyer should insist that the

police release the accused,34 noting that “bail is a right and not a favour”.35 If the

offence is non-bailable but not punishable by death or life imprisonment, an

officer in charge of the police station may release an accused on bail, or take the

accused to the nearest police station that can accept bail.36

The defence lawyer should remind police officers that they are not permitted to

detain an accused in custody without warrant for any longer than is reasonable

in the circumstances, and that any period exceeding 24 hours must be approved

by a judge by special order.37 If the accused has been detained for longer than

II.

15

33 The case of Bo San Lin v. The Commissioner of Police and one, 1948 BLR (SC) 372 confirmed that detention will be illegal if an arrest is not carried out in accordance with the law.

34 The Code of Criminal Procedure, Sections 76 and 496; The Police Manual, Vol. II, para. 1354.

35 2008 Constitution, Article 353; The Code of Criminal Procedure, Section 496; The Police Manual, Vol. II, para. 1785 states: “It must be understood that in bailable cases bail is a right and not a favour; detention in the lock-up is the alternative, not the original order.”

36 The Code of Criminal Procedure, Section 497; The Police Manual, Vol. II, para. 1354.37 2008 Constitution, Articles 21(b) and 376; The Code of Criminal Procedure, Section 61.


24 hours without a remand order from a judge, the defence lawyer should

request that the accused be released immediately on bail, on the basis that the

detention is illegal.38

To the extent possible, the defence lawyer should request updates from the

police about the investigation at regular intervals to permit ongoing review

of whether the police are acting efficiently and effectively, whether they still

have sufficient reason to believe that the accused may be guilty and whether

detention remains legally justified.39 Defence lawyers should keep a written

log of interactions with the police and their responses along with the dates on

which they occurred.

At the conclusion of the police investigation, if police consider that sufficient

evidence exists, the officer must forward the accused to a Magistrate to be tried

or committed to trial; if the offence is bailable and the accused can give security,

he should be bailed.40 This is another opportunity for the defence lawyer to

request release of the accused on bail.

Please see Legal Practice Brief 4 on liberty and bail for a more detailed discussion

of the legal framework for arrest and detention, as well as strategies for lawyers

to challenge unlawful arrest and detention through bail and habeas corpus.

16

38 Ibid.39 The Code of Criminal Procedure, Sections 497(2) and (4).40 Id., Section 170(1).41 2008 Constitution, Article 376; The Code of Criminal Procedure, Sections 61 and 167; The

Police Manual, Vol. II, paras. 1347 and 1741.

Defence lawyers should strive to be present at the first hearing at which the

client’s detention is reviewed, when police officers seek a judge’s permission

to continue detention within 24 hours of arrest.41 Lawyers can argue that all

detainees have a right to legal representation at remand on the basis that the

constitutional right to defence is only meaningful if the accused is defended by

B. Represent detainees at remand hearings

Remand

17

a lawyer, that Section 25 of the Legal Aid Law unambiguously recognises the

right to a lawyer at the first remand hearing, and that the Courts Manual clearly

requires the judge reviewing the basis for making a remand order to permit the

accused an opportunity to show cause against remand.42 If the court refuses to

permit the lawyer to provide representation for their client at remand, the lawyer

should ask that the judge provide a legal basis – in enacted laws, regulations or

case law – for its refusal, and ask that a formal objection be recorded in the

court diary so that an appeal may be lodged against it at a later time.43

Argue for the accused to be present at remand hearings. Lawyers must also

argue that the accused must be present in order to guarantee a fair hearing.

When the accused is not present during a remand hearing, he/she is deprived

of his/her right to a defence under Article 375 of the Constitution, and the court

is in breach of the requirements of the Code of Criminal Procedure, the Courts

Manual and the Police Manual which require the presence of the accused at

remand hearings.44

As Section 403(1) of the Courts Manual plainly states: “No remand can be

ordered until the accused has been brought before the Magistrate and had an

opportunity of showing cause against it.” An officer executing a warrant must

explain the reasons for the arrest to the suspect and bring the suspect before

the court without “unnecessary delay”.45 A police officer must bring an accused

before a judge within 24 hours of arrest to seek permission for continued

detention pending investigation.46

I.

42 2008 Constitution, Article 375; The Legal Aid Law 2016 (as amended 2017); The Courts Manual, Part IV, Section 403(1).

43 The authors attempted at length to ascertain any written legal basis for the argument that lawyers may not represent clients at remand and have found none. However, if readers are aware of any such laws, regulations or case law which explicitly articulates this prohibition, they are encouraged to share it with us.

44 2008 Constitution, Article 375; The Code of Criminal Procedure, Section 167(1) unambiguously requires the production of the accused for the remand hearing, stating that the police when requesting remand “shall at the same time forward the accused to [the] Magistrate”; The Police Manual, Vol. II., para. 1347 similarly requires: “the officer-in-charge of the police-station shall send the accused to the nearest Magistrate, and if necessary, ask for remand.”

45 The Code of Criminal Procedure, Sections 80-81; The Police Manual, Vol. II., para. 1091.46 2008 Constitution, Articles 21(b), 353 and 376; The Code of Criminal Procedure, Section

167; The Police Manual, Vol. II., paras. 1347 and 1741.


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Challenge the basis for a remand order. A judge is not required to order

continued remand and may only do so when both:

1. sufficient evidence to raise suspicion that the accused committed the

offence; and

2. further evidence is likely to be obtained by remand.48

Defence lawyers should challenge the sufficiency of the evidence and

information provided by police to meet the standard of proof required to justify

remand.49 The judge must review closely the information submitted by police

(including the remand application and case diaries50) together with the opposing

argument from the accused and his/her lawyer, to determine whether taken

together there are reasonable grounds for believing that the accusation is well-

founded. If taken together the evidence is insufficient, remand should not be

ordered and the accused should be released pending further investigation.

Where the evidence is weak, defence lawyers can also argue for the accused’s

release under the Code of Criminal Procedure Section 169 on the basis that the

police failed to provide adequate reasons for believing that the accusation was

well-founded to justify continued detention.

II.

47 2008 Constitution, Articles 21(b), 353 and 376; The Code of Criminal Procedure, Sections 61 and 167.

48 The Code of Criminal Procedure, Sections 167 and 344.49 The Code of Criminal Procedure requires increasingly stringent standards of proof as a

criminal case progresses from investigation to arrest, from the framing of the charge to conviction. Unless the evidence provided by the police and prosecution is adequate to meet the standard of proof at each stage, the case cannot proceed further. Please see Legal Practice Brief 3 on the presumption of innocence and burden of proof for a more detailed discussion of the presumption of innocence and the required standards of proof at each stage of criminal proceedings.

50 The Code of Criminal Procedure, Section 167(1); The Courts Manual, Part IV, Section 403(1); The Police Manual, Vol. II, para. 1741.

If the accused has not been brought before the court for the 24-hour remand

hearing, and will not be brought before the end of the 24-hour period, the

lawyer should argue for the judge to order the accused to be released on bail

immediately, on the basis that the constitutional right to personal freedom has

been violated, as any period of detention after 24 hours will be unlawful.47

Remand

19

Even if the judge finds adequate grounds for believing that the accusation is

well-founded, defence lawyers can argue that further remand should not be

ordered pending investigation on the following grounds:

• Police have not provided with specificity reasons why more time is

required for investigation, in what direction further investigation will

be made,51 and “[a] bald statement that the police want time to ex-

amine witnesses is not sufficient”52 to legally support a remand order;

• Further deprivation of liberty is excessive and disproportionate to

the alleged offence in violation of the constitutional provision which

prohibits the imposition of any penalty that violates human dignity;53

• As the accused was not produced for the remand hearing, his/her

constitutional right to personal freedom and right to a defence have

been violated;54

• Continued detention would be unlawful because the initial arrest was

conducted unlawfully.55

In support of these arguments, lawyers can request that the judge order the

police to explain how their investigation is proceeding, show that their efforts

are continuing in an efficient and effective manner, provide specific reasons why

more time is required for investigation, and detail the direction in which further

investigation will be made.

If the judge orders remand, the reasons for doing so must be specific and

clearly articulated in writing on the back of the remand application: “a bald

statement that the police want time to examine witnesses is not sufficient.”56

51 The Code of Criminal Procedure, Section 344(2).52 The Courts Manual, Part IV, Section 405(2).53 2008 Constitution, Article 44.54 2008 Constitution, Articles 21(b), 353, 375 and 376; The Code of Criminal Procedure,

Sections 61 and 167; The Courts Manual, Part IV, Section 403(1); The Police Manual, Vol. II, para. 1347.

55 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). Please see Legal Practice Brief 4 on liberty and bail for arguments challenging the lawfulness of arrest and detention.

56 The Courts Manual, Part IV, Section 405(2).


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The judge must identify the facts which give rise to the suspicion that the

accused committed the offence and the direction in which further investigation

can be made, and the judge must sign the order.57 If the judge fails to provide

written reasons to justify the remand order, or fails to detail those reasons with

specificity, the remand order is not legal and the defence lawyer should request

the release of the accused on bail.

If the judge refuses to hear defence arguments opposing remand or orders for

remand without adequate legal basis, the defence lawyer can appeal to the High

Court to request that the accused be released on bail on the basis that the

remand order was issued unlawfully.

57 The Courts Manual, Part IV, Section 405(2); The Code of Criminal Procedure, Section 344.58 The Code of Criminal Procedure, Section 167(2).59 2008 Constitution, Articles 21(b), 353 and 376.

Challenge the length of time necessary for remand. An 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.58 Although judges routinely order 15- and 30- day periods

of remand, the law clearly indicates that this is the maximum number of days for

which remand can be imposed.

Defence lawyers can ask the court to impose a shorter period of remand to

minimise the deprivation of the accused’s liberty on the basis that:

• The additional specific avenues of investigation planned by police

do not require the maximum period of days for remand available

under the law. A shorter remand period will allow the judge to more

effectively monitor police efforts to conclude the investigation;

• The grounds for believing that the accused is guilty of the offence,

while adequate to justify further investigation, is nevertheless so

weak as to require the judge to minimise deprivation of liberty;59

• Deprivation of liberty for the full 15 or 30 days is excessive

and disproportionate to the alleged offence in violation of the

III.

Remand

21

constitutional provision which prohibits the imposition of any penalty

that violates human dignity.60

Defence lawyers should insist on a remand hearing as soon as one is due and

revive each of the arguments above in challenging further remand requests.

Detention on remand in excess of these limits is unlawful and requires the

release of the accused.

Request release early and often. 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.61 If the accused has

been arrested for a bailable offence,62 his or her release on bail is a matter of

right63 and the defence lawyer should advocate for bail at every opportunity.

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

the offence alleged is not punishable by death or transportation, or at any time

where there are insufficient grounds to believe the accused committed the

offence.64

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.65 An application for release may

be made:

IV.

60 2008 Constitution, Article 44.61 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 or continued detention pending trial with the client and proceed according to their client’s instruction.

62 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.

63 Id., Section 496. See also The Police Manual, Vol. II, para. 1785.64 The Code of Criminal Procedure, Sections 167(2), 169, and 497.65 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).


22

• From the time of arrest through appellate proceedings;

• Before the police or courts;

• Through bail or surety as a matter of right;

• Through an application for a Direction of the nature of habeas corpus

at the High Court; and

• Through an application for a writ of habeas corpus at the Union

Supreme Court.

Please see Legal Practice Brief 4 for suggested legal grounds and argumentation

for release at all stages of proceedings.

If the police fail or refuse to comply with their legal obligations in relation to

arrest and detention, the defence lawyer can state an intention to bring a

criminal complaint under Myanmar’s Penal Code which prohibits “wrongful

C. File a complaint against police under relevant criminal laws

Remand

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 as tampering with evidence.

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obstruction,” “wrongful restraint” and “wrongful confinement” of an individual.66

One example of this might be where police have failed to bring the accused

before a judge to have the legality of detention reviewed within 24 hours of

arrest.67

When the defence lawyer believes an accused is being held in custody unlawfully,

and in such a way that it amounts to a criminal offence under the Penal Code,

they can file an application with the court pursuant to Section 100 of the Code

of Criminal Procedure, requesting the judge to issue a search warrant for that

person to be found and brought before a judge.68 Once the accused is produced

before the court, the judge may “make such order as in the circumstances of

the case seems proper”, including but not limited to ordering the accused to be

released on bail on the basis that his/her detention is illegal, or initiating criminal

proceedings against the police responsible.

Additionally or alternatively, the defence lawyer may report the police officer

to a senior officer with reference to the Myanmar Police Force Maintenance

of Discipline Law 1995 which states that any police officer who “unnecessarily

detains a person who should not be arrested under the law, in arrest or

confinement or fails to bring his case before the proper authority for investigation

[…] shall, on conviction by a Police Court be punished with imprisonment for a

term which may extend to 3 years or such less punishment as is mentioned

in this Law.”69 In filing a complaint under this law, the defence lawyer should

include details of the arrest and detention, any justification given by the police,

and documented attempts made to obtain further information from the police

to justify detention, including any responses to those requests and all relevant

dates.

66 The Penal Code, Sections 339 to 348.67 The Code of Criminal Procedure, Section 167(1).68 Id., Section 100.69 The Myanmar Police Force Maintenance of Discipline Law 1995, Section 17(a) and (h).


Annex 1: Template Arguments

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 and/or unnecessary 4. Ask for a specific remedy (release)

24

Remand

25

Sir, my client _______________ was arrested and put in police lock-up for [insert number

of days/ hours]. Can you confirm the precise reasons for my client’s arrest?

You will be aware that the right not to be arrested or detained arbitrarily is protected under

Article 353 of the 2008 Constitution. The Supreme Court has 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.”70 It is my

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

Sir, my client also informs me that he was arrested without an arrest warrant. Given the

nature of the arrest, I am concerned that my client was arrested on suspicion of committing

a more serious Section 325 offence (grievous hurt), instead of a Section 323 offence

(causing hurt), to avoid following the proper procedure for filing an arrest warrant. May

I remind you officer that arrest without a warrant where it is required is unlawful, as

confirmed in the case of Bo San Lin v. The Commissioner of Police and one (1948) BLR (SC)

372. Sir, can you confirm that the victim in this case did in fact suffer grievous hurt, and

what are your reasons for suspecting my client committed this offence?

Sir, I submit that insufficient grounds existed for my client’s arrest.71 I have not seen any

credible evidence against my client. Any information on which the police appear to be

relying does not appear to be well-founded and therefore cannot justify detention.72

Specifically, it appears that the only evidence currently relied upon is [insert a description

of the evidence you are aware of].

May I remind you Officer that _______________ has been arrested for a bailable offence.

The Police Manual clearly states that in bailable cases “bail is a right and not a favour”,

A. Oral application for police bail (bailable offence where warrant not required)


26

and that detention in the lock-up is not the default position but should only be used “in the

alternative”.73 [if relevant: I also refer you to the Code of Criminal Procedure Sections 76 and

496; and the Police Manual Vol. II, para. 1354].

May I also remind you that you are not permitted to detain my client in custody without

warrant for any longer than is reasonable in the circumstances. Any period exceeding 24

hours must be approved by a judge by special order.74 My client has been detained for [insert

number of days/ hours], and he is not aware of his case having been put before a judge. This

arguably constitutes “wrongful confinement”, which is itself a criminal offence.75 The failure

to bring this case before the appropriate authorities also arguably constitutes an offence

under the Myanmar Police Force Maintenance of Discipline Law 1995.76

On the basis of all of the above, it is my submission that my client’s further detention cannot

be justified and he must be released forthwith.

[Optional additional paragraph if police bail is refused for bailable offence:

Sir, this arrest is unlawful and I will be filing a report with your Senior Officer for violation

of the Myanmar Police Maintenance of Discipline Law 1995. In the meantime, here are my

contact details. I request that you update both me and my client regularly on the progress

that is being made in this case at [insert timeframe] intervals. I will be monitoring the

progress of the police in resolving this matter, in case it is necessary to issue a complaint

before the court.]

70 Tinsa Maw Naing v. Commissioner for the Police, Rangoon & Another, 1950 BLR SC 37.71 The Code of Criminal Procedure, Section 169.72 Ibid. 73 The Police Manual, Vol. II, para. 1785.74 The Code of Criminal Procedure, Sections 61 and 167.75 The Penal Code, Sections 339 to 348; The Code of Criminal Procedure, Section 167(1).76 The Myanmar Police Force Maintenance of Discipline Law 1995, Section 13.

Remand

27

Note: In non-bailable cases, the application must be made to the officer in charge of the police

station.

Sir, my client _______________ was arrested and put in police lock-up [X number of

hours/ days] ago. Can you confirm the precise reasons for my client’s arrest?

You will be aware that the right to liberty is protected under Article 353 of the 2008

Constitution. The Supreme Court has 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.”77 It is my submission that

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

Sir, although my client has been arrested for a non-bailable offence, the law permits

you to release my client on bail, where the offence is not punishable by death or life

imprisonment.78 The Code of Criminal Procedure permits release pending further inquiry

where there are not reasonable grounds for believing that a detainee has committed the

offence.79

It is my submission that my client falls within this category and should be released

immediately. At this stage, there appears to be only very limited evidence in the case,

and it is far from clear how you consider there to be sufficient reason to believe that my

client is guilty. As such, under the Code of Criminal Procedure, detention is not justified.80

Furthermore, my client’s detention is not necessary for the investigation to proceed or

indeed for the protection of the public. He [if relevant: has no previous convictions and] is

of good character. There is no reason to believe that he will abscond or commit offences

if released into the community. In addition, he has a close family who will support him to

B. Oral application for police bail (non-bailable offence)


28

comply with the terms of police bail, and he has agreed to attend the police station regularly

if so required as a condition of bail.

Sir, I further submit that the police have failed to demonstrate that they are acting

expeditiously in their investigation of the offence. The delays to date in the investigation

lead to a conclusion that it is likely to be several months before the case proceeds to trial, if

indeed there is sufficient evidence to do so. It is my submission that, not only is my client’s

detention unnecessary and unlikely to assist further investigation,81 but it is also excessive

and disproportionate to the alleged offence.82 [Insert specific information related to the

offence and arguments in support of your client’s innocence].

On the basis of all of the above, my client should be released immediately.

[Optional additional paragraph where arrest was unlawful:

Although you appear to have arrested my client in execution of a warrant, the arresting

officers failed to notify my client of the substance of that warrant at the time of the arrest.

This is contrary to the Police Manual, and should give rise to disciplinary action.83 In addition,

both my client and his friend who were present at the time of the arrest have given evidence

that undue force was used during the arrest. This is supported by the medical injuries

sustained by my client. It is in breach of the Police Manual for disproportionate restraint to

be used to carry out an arrest,84 and leads to a conclusion that my client’s arrest and therefore

his detention are unlawful. In addition to providing grounds for release, disciplinary action

should be taken against the arresting officer, and my client must be permitted to meet with

a doctor at the earliest opportunity.]

77 Tinsa Maw Naing v. Commissioner for the Police, Rangoon & Another, 1950 BLR 1950 SC 37.

78 Refer to The Code of Criminal Procedure, Sections 497; The Police Manual, Vol. II., para. 1354 if necessary.

79 The Code of Criminal Procedure, Section 497(2).80 Refer to id., Sections 497(2) and (4).81 Id., Section 167(2).82 Ibid. 83 Id., Section 80; The Police Manual, Vol. II, para. 1091.84 The Code of Criminal Procedure, Section 50.

Remand

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