Torture by law enforcers: are Burma’s police the new military?

Danilo Reyes, article2editor

This article will look into the practice of torture in Burma by examining individual torture cases recorded from early 2012 to the present, the period described by foreign observers as “springtime” in the areas of political and social change in Burma. Torture cases documented are those committed by law enforcers. Why examine torture by law enforcers or police? Because, in this period the police recorded a large number of torture cases in the course of crime investigations. By looking at police torture, we can better understand the character of Burma’s police: are they civilian or military?

In June 2012, months after democratic leader Aung San Suu Kyi and her party won a landslide victory in by-elections, the police arrested a labourer; and the military arrested two cattle traders. They interrogated them on allegations that they were involved in explosions. When the police could not obtain evidence from the labourer, they turned him over to the military to be tortured. Meanwhile, the military forced confessions from two cattle traders before turning them over to police for prosecution.

Three years on, the police and military who colluded in torturing Lahtaw Brang Shawng, the labourer, were never punished (Story No. 10). Similarly, the military who forced confessions and fabricated material evidence on cattle traders Laphai Gan and Baran Yaun, were not punished either. The torture Lahtaw Brang Shawng suffered in custody by the military never had redress. He described it below:

They held the flat side of a hot knife to my face, hit my head with bamboo, stabbed my thighs, and ran a bamboo roller along the back of my thighs. An intelligence officer threatened to kill me, ordering him to dig my own grave.

The police admitted the evidence they have against Laphai Gan and Baran Yaun is only that provided by the military. They have no other evidence against them. They have no witnesses linking them, the accused, to the explosions. But, the false charges against them were not dismissed. They are still being prosecuted by police for crimes based on evidence obtained through torture by the miliary. Like Lahtaw Brang Shawng, the torture they suffered in military custody never had redress:

They assaulted the victims to the point of drawing blood, tortured and threatened them into admitting to being KIA soldiers. They were forced to kneel on gravel for extended periods, forced simulated or actual homosexual intercourse on them, burning their genitals with candles, and burning their skin with the blade of a hot knife.

In these two cases, in the early period of Burma’s political reform, it is evident that for the police and the military, business was as usual. These practices of torture and the nexus between the police and the military thrive to this day. This raises serious questions: has the military’s role, if not interference, in law enforcement, ended? Since 2012, amid ‘cautious optimism’ with Burma’s political reforms, the trend of police torture during criminal investigations has increased. Apart from police and military collusion, the torture examined in this report reveals how law enforcers torture suspects during police investigation. Of these cases, five victims died in custody, including two women. Most victims are from poor family backgrounds—they are farmers, labourers and rickshaw drivers who police questioned in absence of a complaint, or arrested without a warrant.

Myint Thwin, a human rights lawyer, says in an article 2 interview “We have to fight against unjust laws with just laws”. He observes that victims are no longer tortured solely for alleged political crimes but for ordinary criminal cases: robbery, petty theft or murder. It means the use and purpose of torture may have changed, but its methods have remained the same whether the victim is a dissident, a political prisoner or alleged criminal. Torture is used in criminal investigations regardless if they are political or not. Therefore, the changes in how and who uses torture are only seen in the uniforms that the torturers wear: military uniforms in the past; police uniforms at present.

During the military regime, Myint Thwin recalls that whether the torture victim was a political activist or not, the military always gave political reasons for using torture. After 2012, the manner in which police torture “is similar to what military intelligence did in the past” even if their victims are not being investigated for political crimes. During the military regime, he recalls how he and other political prisoners—activists, monks, lawyers,—were tortured in custody:

They tortured them by putting needles under the soles of the students feet for several hours, aimed spotlights on their faces, applied electric shocks, beat them with sticks, rubbed rulers on the skin of their front lower legs, hung them upside down. I was tortured in that same way. Others had hot wax poured on their skin or their penises burned with lit cigarette butts.

What Myint Thwin suffered is somewhat similar to how the police and the military colluded in torturing Lahtaw Brang Shawng and Laphai Gan and Baran Yaun. They suffered similar ordeals to Myint Thwin and other political prisoners: their genitals/penises and skin were burnt with lit cigarette butts and hot wax respectively, their bodies pierced by bladed and sharp objects, they were beaten with hard objects, and threatened with death: even forces to dig their own graves.

In the last three years, police torture in Burma has become all pervasive. The Asian Legal Resource Centre (ALRC) in September 2014 submitted a report to the UN Human Rights Council, enumerating the features of the practice of police torture. It notes some of these features as (See Appendix II):

a. The practice of torture is systemic. Officials at all levels of the police hierarchy, courts, administration, and hospitals are aware of its occurrence; are involved actively; and are either tacitly complicit or condone it. Superiors do not prohibit the use of torture by subordinate officers…

b. The police often know that the victims of torture are innocent…

c. The practices of torture are highly professionalized. The methods of torture are used by people with extensive knowledge and training in these techniques…

d. The police resort to torture and attendant techniques as other methods for investigation of crimes are undeveloped, basic or non-existent…

e. The judiciary participates in the process of torture. Judges know that people brought before them in court have been tortured, whether brought in for the purpose of giving a confession or retracting a confession…

One of the examples in which the “police knew the victim was innocent” is the case of Ko Nan Win’s pregnant wife, Ma Than Than Aye. She died in police custody on May 30, 2013. Police questioned her because her husband allegedly stole gold from a house where he had been working (Story No. 6). Ko Nan Win maintained his innocence under torture. When the police could not get any confession from him, they turned to his wife. They interrogated her for the alleged crime against her husband, trying to force her to confess and return the stolen gold.

And Why is torture “systemic” and how does the “judiciary participate in the process?” It is demonstrated in the routine practice of police commanders who shield their men from criminal liability purposely to cultivate their loyalty. Of cases documented since 2012, none of the police officers were prosecuted for criminal offences. The case of torture victims Myint Lwin and Ohn Lay in January 2013 reveals the nexus between commanders and their subordinates (Story No. 8). When a case was filed against a police sergeant and four constables, their commander sent a letter telling the judge his men were not criminally liable in civilian courts. The accused policemen were charged with torturing, assaulting and arresting the two victims without a warrant. The judge acquiesced, and dismissed the case against them.

Even if victims succeed in filing a direct complaint, the police commanders routinely request judges to remove the names of the policemen in the criminal complaint. In the case of Thet Peaing Pun, he was arrested and tortured for reasons (Story No. 3) as the police told him “he should already know.” The Myanmar Police Force wrote letters to the court telling it to remove the names of the police officers. The judge complied.

Not only do court judges obey police instructions, but the newly established Myanmar National Human Rights Commission (MNHRC), also thinks that once the accused policemen are imposed with administrative sanctions, no further actions are required. This reasoning was questioned by the Asian Human Rights Commission in its statement dated June 1, 2015. It argues that disciplinary sanctions cannot erase criminal actions, and the law used to impose punishment is not a criminal law:

…these methods of disciplinary punishment by the police force are designed and implemented so as to encourage impunity for egregious violations of people’s rights. Rather than have the cases investigated and tried through the ordinary criminal process, the home affairs ministry is using internal disciplinary methods to deny victims and their relatives the justice that they seek.

However, for judges to accept what the police or the military instructs them to do is a continuing order of the day in Burmese courts. After 2012, Myint Thwin claims there are emerging courageous judges; however, those who take a stand suffer reprisals. If a judge poses a threat by exposing torture by the police establishment, he would be replaced by another judge. It happened in the case of Lahtaw Brang Shawng. The judge refused to record his confession after he discovered that the victim’s body had traces of torture and he was wearing a police recording device. He was replaced the next day by another judge.

In deciding cases in court, if the government and the military’s interests are at stake, as Thein Than Oo, a practicing lawyer in Burma, told article 2 in an interview “The military, not the court decides”. It is the military who decide the outcome of a case. He said if “the government or military has an interest in the case there will be no justice.” Asked if judges could decide cases independently, he said: “No, they cannot. We can’t get an (independent judgment).”

Thein Than Oo, of Myanmar Lawyers’ Network, described in his article “The legacy of dictatorship in Myanmar’s judicial system,” that the problem the judiciary faces is the “legacy of dictatorship.” However, in my opinion the term “legacy” means something the military regime has ended. Only residues of the past are being tackled. But the term “legacy” could be misleading, as Min Lwin Oo describes in his article, “Myanmar: Ruling under militarised police,” since the structure of the military regime remains intact. Only their uniforms change to give the semblance of civilian rule. So, how do we interpret the police as law enforcers in present day Burma?

For Min Lwin Oo, it is still the “military regime (and) not the civilian government” that rules Burma. There was no clean break. They only perpetuate the continuation of the military regime. The police as an institution are still “under the command” of the military” operating “almost the same” as the military. It explains how and why even the methods of torture used are similar to the military regime. The mindset of the police is similar to the mindset of the military. They think they are responsible only to their commanders. It does not matter if they commit crimes or even severe crimes, the commanders will protect them from criminal liability.

Take Ko Zin Aung’s case (Story No. 2). He died hospital. His death was passed on as one due to alcoholism, despite having been tortured and subjected to custodial investigation on July 2014 on false charges of stealing bottles of petrol. Then there is the case of U Than Htun (Story No. 7), whose death in custody is blamed on himself for “hitting himself while in police custody” in May 2013. In the case of Myo Myint Swe (Story No. 9), he was tortured to death in police custody on July 2012, but the police colluded with a doctor to certify that he had died from a “heart attack.” And, 19-year-old Nan Woh Phan died in custody after she fell from a building after being interrogated for days (Story No. 12).

When the police in Burma instruct the court to exclude names of policemen from criminal cases, they are not seen as interfering in judicial matters. To them, administrative sanctions on erring police officers under the Myanmar Police Force Maintenance of Discipline Law are sufficient. It is the punishment. To tell the judge to do their bidding is a matter of exercising their authority. It seems there is no distinction between the legal process for administrative and criminal liability. The police are the judge. They are the ones who interpret the law not the judge sitting in courts.

Thus, Min Lwin argues that for lower ranking police commanders or the police establishment to behave in this way should not be a surprise. According to him, even the country’s chief of police (a former military officer), apparently “does not know or understand the law and its procedures-practically or theoretically.” His experience and training as the police chief is in the ways of the military, not as a civilian police officer. The impact of militarized policing in the society is so destructive and deep that “almost every citizen does not know the basic law or constitutional law.” In the past, it was the military who interpreted the law, and it is still so today: the military, but in a police uniform.

The challenge is: how can rights be protected when law enforcers outright ignore or do not understand rudimentary procedures of law? Some of the pro-democracy Parliamentarians suggest this: embed the idea of the rule of law in the consciousness of the law enforcers and their commanders, to shift their thinking that they are liable to civilian rule. Things could then change.

Dr. Aung Moe Nyo, a member of the Parliament (Pyithu Hluttaw), told article 2 in an interview “To sign Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment depends on who holds the real power”. A policeman must understand the distinction between a policeman and a military man. The police, unlike the military, are not supposed to just follow orders from their commanders. They are to adhere to the ideals of the “rule of law” in enforcing the law. Police must begin to see their investigations “from the perspective of the rule of law.”

Dr. Aung Moe Nyo, the main proponent of legislation urging Burma to sign the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, said “if an accused breaks the law, he must be prosecuted. If not, he must be set free.” He hopes the pro-democracy candidates will win in the upcoming elections in November 2015. “If the new government that represents the civilians comes into power,” he said, Burma could sign the Convention.

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