10.06.2007
U Aung Hla in Rulings and U Aung Hla in History
_ Translated article by Gamanii
Burma became acquainted with modern British Common Law system after the first Anglo-Burmese war when Arakan and Tenasserim coastal territories came under British Crown. After all of King Thibaw's territories were placed under British rule by Lord Dufferin's proclamation on 1886 January 1 at the end of third Anglo-British war, entire judicial system of Burma came under the Common Law system.
A characteristic feature of Common Law system is the Doctrine of Precedent. This is the principle of a lower court acceding to the ruling of its higher court.
That is to say when a court has to pass a judgment on a certain matter it must conform to the preceding ruling by its higher court on that same matter. And all courts have to comply with the ruling of highest court, the principle says.
Because of this principle, rulings become essential in justice. Therefore, the British government started publishing volumes of rulings since they won the first Anglo-Burmese war and implemented British judicial system in the new colonies. In the beginning, though, these rulings were printed in Indian Law Reports. The first publication solely for Burma was Selected Judgments, Lower Burma published in 1872. (In the law community, it is known as S.J.L.B.) Subsequently, Printed Judgments, Lower Burma covering 1893 to 1900, Vol. I to XI of Lower Burma Rulings and Upper Burma Rulings covering 1901 to 1922, Indian Law Reports, Rangoon Series covering 1923 to 1937 were successively published. Since 1937 the publication assumed the name Rangoon Law Reports up to 1947. (Of course, the publication was interrupted in the five year of Japanese occupation.) After Independence, it became Burma Law Report which continues till today without interruption.
To look for the rulings easily among such a large amount of volumes, legalists have to compile digests. Rangoon High Court Judge Herbert Francis Dunkley produced Dunkley's Digest Vol. I (1872-1922) and Vol. II (1923-1937), former District and Sessions Magistrate U Po Tha put out U Po Tha's Digest (1937-1955), Judge U Thein Han compiled U Thein Han's Digest/Civil (1956-1976), U Thein Han's Digest/Criminal (1956-1976) and Associate Divisional Judge U Khin Maung Win and Supreme Court Advocate U Min Swe compiled Digest (1974-1986).
Until over-ruled by the next highest court, those rulings exist as guiding judgments. In other words, it means that the judgments in the volumes of rulings remain in force despite the passage of years.
One of those rulings is called Aung Hla and Others v. King-Emperor, 9 Ran, 404 F.B. It is a tribunal ruling printed in Indian Law Reports (Rangoon), Page 404.
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U Aung Hla was a peasant from Dedaye region. As he was over 60 years of age, he was a respected person in his region. When paddy prices plummeted after the Great Depression of 1928-29 spread to Burma, causing anguish in the peasantry, U Aung Hla like other peasants seeking a quick way out met Saya San who came to U Aung Hla's Htandaw village on a campaigning trip. And so when Saya San rose up in Thayawaddy region, U Aung Hla also joined the fight in Delta area.
When Saya San fled to Shan State after the failure of peasant rebellion, Delta peasant movement got brutally suppressed. U Aung Hla and hundreds of peasant rebels were taken prisoner.
An emergency act was then passed to set up a 'Special Tribunal' to try U Aung Hla and his men. Altogether 102 peasants were charged with 'treason' under Article 121 of Penal Code. Dr. Ba Maw and his brother Dr. Ba Han, U Pu, U Kyaw Din and a number of lawyers represented the defendants.
The tribunal passed death sentences on 15 peasant rebels and life sentences on another 56. Due to his age, U Aung Hla was not given a capital punishment but sentenced to life.
All the 71 convicted defendants appealed to the High Court against the decree. Fifteen High Court lawyers argued on their behalf for appeals. The High Court accepted the cases for appeals as 1931 Criminal Appeals Case No. 494 to No. 529. At that time, High Court Chief Justice was a Sir Arthur Page. He opened the case with a notice in accordance with Article 435 of Criminal Procedure Act calling the defense to argue why twenty-three defendants including U Aung Hla among the lifers should not have their sentences raised—in legal terms, to show the cause. At the same time, he opened case revisions on the defendants and heard both appeals cases and revision cases simultaneously. After hearing the arguments, he rejected U Aung Hla's appeal and changed the sentence to capital punishment, because life sentence was not enough according to then existing laws. And accordingly U Aung Hla was hanged sometime later (together with his son on the same day and same time).
The plenum of Sir Arthur Page, Justice Mya Bu and Justice Baguley heard the appeal case. Page wrote the judgment and Mya Bu and Baguley put their remarks of consent.
In the judgment, Sir Arthur Page concluded thus:
We found that the members of the Special Tribunal felt it necessary to show expression of mercy by giving reduced punishments to the convicted. However, we do not believe we have such responsibility. We presume that those who have their appeals rejected have clear evidence of waging war against the King-Emperor. Under those circumstances, we assume that it is not the responsibility of a court to give mercy to those people or someone from those people. Since the appealers have committed the gravest possible crime against a State, consideration of mercy is not borne upon the court.
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It is distressing to see legal scholars and courts in Burma of nowadays referring to such outdated verdicts which are still valid in those volumes of rulings and digests—especially when they are used by the ruling military junta for oppressing and eliminating on opposition politicians.
Of course, annulling a judgment poses much difficulty. Nevertheless legal experts should seriously think up a way. Joan of Arc has provided us a case in point, isn't that so?
French martyr Joan of Arc was burned at the stake for heresy under a ruling by a Christian religious tribunal. Many years later, her case was re-tried and acquitted. Still, she was canonized after 489 years—from 1431 to 1920. In U Aung Hla's case, not even a hundred years has passed.
There is a renowned phrase, 'History will absolve me.' (I don't remember exactly whose words is it. I think it is of Irish revolutionary Shane O'Neil's. Correct me if I am wrong.)
It is a fact that U Aung Hla lost his life on the gallows around 1931. Dr. Maung Maung retold the event of U Aung Hla and his son's death by hanging as witnessed by Dr. Ba Maw who had advocated for him at the Special Tribunal as well as appealed for him at the High Court. Dr. Maung Maung wrote that father and son had to mount the gallows face to face in the morning. The son paid obeisance to the father, pleading to forgive any misdeeds done by him on the latter. U Aung Hla then said calmly, "My son, you have no mistakes. Don't worry! The deaths of you and I are glorious. To die for one's nation, one's language and one's religion is noble. It will bear fruits in coming lives in the Samsara. Bear it in mind well, my son!" After this he ascended the gallows.
Nowadays, U Aung Hla—along with Saya San—has got a place in history as a martyr. History has absolved him.
So any continued referring of that out-dated verdict with an intention of eliminating opposition politicians at the gallows will lead to a sad waste of the lives of noble good men. Take heed!
Zaw Win Ko
(Padauk Pwint Thit magazine, No. 8, October 2006)
Translated by Gamanii
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