Editorial board, article 2
One year after the nationwide monk-led protests that shook Burma in response to a dramatic and sudden increase in fuel price rises on 15 August 2007, which became known around the world as the Saffron Revolution, the cases of hundreds of people and forcibly disrobed nuns and monks who are accused of having had key involvement in the rallies are winding their way through the country’s courts. The cases are, as in the manner of the crackdown itself, characterised by patent illegality and often are little more than an exercise in nonsense, where the courts are being forced to participate in their own debasement and caricature. The trials are being held behind closed doors, with charges brought under one section of law and changed to another, without investigating officers being able to bring any evidence or even say when or where an alleged offence occurred, police witnesses admitting that they know nothing about the cases that they are presenting other than that they have been ordered to come and present them, and judges sitting as spectators to the absurd charade.
The handling and movement of the cases through the courts is consistent with the handling of the protests themselves. As the article 2 editorial board wrote in the introduction to the special report on the protests and what it characterised as Burma’s injustice system of December 2007 (‘Burma, political psychosis and legal dementia’, vol. 6, no. 5-6), the defining characteristic of the crackdown was its patent illegality by all standards of law, including the country’s own law. Arrests were not even in state- run newspapers described as such, instead rather as incidents of people being “brought, investigated and questioned”. Accused persons were abducted and held in unofficial sites, from a technical training institute, to an old racetrack, to the military dog pens. The one place where they were not held was a police station, even though no declaration of emergency or any other extraordinary law was introduced to authorise the authorities to behave outside of the ordinary law, which requires that the police be custodians of criminal detainees, and that anyone be brought before a judge within 24 hours. Nor have prisoners had access to the International Committee of the Red Cross (ICRC), which has been unable to obtain access to facilities in Burma since the government insisted on having its representatives attend interviews between ICRC staff and its charges, which is in breach of the committee’s charter.
This latest special edition of article 2 is concerned, in keep- ing with the previous report, with going deeper into the systemic problems in policing, prosecutions and courts in Burma. To do this it contains detailed study of a number of cases of detainees following from last September’s protests, placing them against a historical backdrop in which the country’s legal system was de- molished from the 1960s onwards. The historical elements in current problems of dictatorship, law and human rights abuse in Burma were touched upon in the December special report. Now the Burma desk of the Asian Human Rights Commission has for the purposes of this special edition researched historical legal records and texts that have mostly been overlooked by conven- tional historians and academics, as well as the human rights movement on Burma in general, to examine how the system of justice that at one time existed, albeit imperfectly, was destroyed with dramatic consequences for the present day. The neglect in studying this aspect of systemic change in Burma is in part from a tendency to be overawed by the extent of military authority that has grown there and from a failure to recognise that the takeover of the judiciary was not something that just happened by accident. To take for granted that as an army is strong then everything else is by default weak is erroneous. The judges, law- yers and ordinary citizens of Pakistan have in the past year shown how false that reasoning is, with a resounding victory over their immensely powerful armed forces. The Saffron Revolution was itself a statement to the same effect, but in Burma it was ham- pered by the systematic demolition of all other organs of govern- ment outside of the executive over the past half a century.
In the 1950s, despite extremely pressing conditions, the judi- ciary in Burma was able to maintain a degree of independence and integrity that surpassed that of most of its neighbours. There were many fraught struggles played out in the courts between and among politicians, powerful people and the courts themselves, but the courts, especially their upper echelon, managed to re- tain a sufficient level of credibility to sustain their work. Having survived the first very difficult decade after independence they might have been expected to improve and expand their role, ex- perience and responsibilities from that time onwards. However, the military takeover of 1962 put an end to all that. The new regime began a project to systematically dismantle all parts of state that could oppose it, and in particular targetted the courts. The pathetic legal conditions in which protestors from last year find themselves in before the courts of Burma today are a direct result of the project for legal demolition that has been carried out since that time.
The December 2007 special report of article 2 on Burma characterised its legal system as suffering from dementia. This diagnosis of the system in medical terms was not frivolous. It was based on a number of years’ careful study, advocacy and discussions with practitioners, who like medical practitioners are from their experiences able to construct a detailed picture of where ailments exist and the causes of these. From tracing the work of Ne Win, his chief justice and architect of legal collapse, Dr Maung Maung, and their assorted accomplices over the 1960s and 70s the causes of the dementia become apparent. A system that was at one time relatively sane was driven mad by the succession of techniques devised and implemented for executive control first over its head, then its entire body.
The sorts of wanton abuses of both persons and law described in the ten case studies that are at the heart of this edition of article 2, which have been selected from a large number of such cases that the Asian Legal Resource Centre has documented since last year, then, are not new. They are not issues that suddenly arose with the military takeover in 1988. On the contrary, they are the consequence of a deliberate programme for the perverting of law that was begun around a quarter of a century before that time, and has simply been further embedded under the current regime. In fact, this regime has done nothing unique at all so far as the un-rule of law in Burma is concerned. It has merely carried on and further deepened the work of its predecessor, perhaps only with a greater ruthlessness, and certainly with disinterest in the sorts of ideological cover attempted by its predecessor.
It is clear that the extent of damage to Burma’s legal and administrative system is enormous and the need for work to rebuild and restore what has been lost will also be vast and lasting, irrespective of whatever else happens. Fortunately, there are still many causes for hope. Apart from those defendants and litigants that continue to make demands on the system, and are able to recall something of what it was before it was reduced to an administrative arm of despots, there are many fine lawyers and human rights defenders familiar with the workings of the courts in Burma who continue to fight for a tradition of legality in conditions where it is all but absent and where to do the sort of work that a lawyer in an established jurisdiction would take for granted is a big personal risk. Among them are ordinary criminal lawyers who also volunteer their services quietly for indigent clients who are the victims of abuse by powerful or influential people. Others handle nothing but human rights cases, their other clients having deserted them, and as a consequence daily face official harassment and scrutiny. It is to all of these lawyers and their clients alike to whom this edition of article 2 is dedicated.
The historical outline and case studies taken together, this publication should be of special interest not only to persons concerned with recent events in Burma but also those concerned with the decline in the rule of law across Asia generally. At the moment the continent is stuck between different types of equally irrelevant rule of law debates. There is one type of debate that goes on among intellectuals in countries where the rule of law is relatively well established and the institutions of the state and personal liberties reasonably well protected that is critical of the rule-of-law tradition for the very reason that it can afford to be. Most of these interlocutors take for granted the working of laws and courts and presume things about the management of societies that place the starting point for their debates already so far away from what happens in a court in Burma or the Philippines that what follows from there is plainly irrelevant. On the other side there is an uncritical discourse on the rule of law that has spread out like a thin and uniform wash globally. In this one, a uniform version of the rule of law is unquestioningly promoted through international agencies and a few relative success stories are held up as models for everyone else. This developmental rule of law agenda enthusiastically cheers on any evidence that things are moving along its predetermined path, while leaving the anomalies for strategic analysts to sort out, so that Burma ends up somehow more like North Korea, rather than neighbouring Thailand or Bangladesh.
Away from both of those types of the rule of law, this publica- tion has had as its abiding concern with its study in terms of its intimate relationship to human rights in Asia, and with special reference to the availability of the means for redress for wrongs committed as established in article 2 of the International Covenant on Civil and Political Rights. It has had as its concern not the expanding of a type of the rule of law that satisfies diplomats and simpleminded groups, again mostly based in the west, that use meaningless statistics and various numerations to assign countries in the region (and elsewhere) ranks as if drawing up a football league table rather than dealing with highly complicated and context-specific problems and issues, but rather the felt experiences of people living in countries in the region and what these tell us about the state of affairs in their coun- tries. It is for this reason that whereas many groups and re- searchers that have studied mostly elite affairs and abstract notions of the rule of law and human rights have posited an im- provement in conditions in Asia during recent years, the Asian Legal Resource Centre has reported on their overall decline.
This decline in the rule of law across Asia has been borne out in many high quality studies in article 2 during the last couple of years alone, all of which have spoken to the pressing concerns for institutions of criminal justice, of policing and administration of law, government and society, at a time that in many quarters growing economies and the appearance of some democratic forms have masked the deterioration or demolition of other parts of the state apparatus. In 2007, a special report on the Philippines exposed the reality of a non-functioning criminal justice system and the difference between functioning institutions and those that exist superficially but not in fact (‘The criminal justice sys- term of the Philippines is rotten’, vol. 6, no. 1, February 2007). In the middle of that year, a special edition on Thailand warned that due to the military coup of the year before constitutionalism in that country was now very much at threat: a warning that has been borne out vividly in events there of the last month or so (‘Thailand’s struggle for constitutional survival’, vol. 6, no. 3, June 2007). Another special report on Bangladesh from the year before examined how the exercise of what is described as law enforcement may go on without the use of law at all, distinguishing law enforcement from its more common counterpart in Asia, order enforcement, which can go on with or without the law (‘Lawless law enforcement and the parody of judiciary in Bangladesh’, vol. 5, no. 4, August 2006). A number of in-depth articles on Sri Lanka have taken up, among a range of matters, how constitutional amendments and other politically- aimed changes have over some decades dismantled those parts of the system that lent themselves to a rule of law there, and how as in 1960s Burma the judiciary has been beaten down and demoralised both from without and within (‘Dysfunctional policing and subverted justice in Sri Lanka’, vol. 6, no. 2, April 2007). And most recently, the particular problems associated with judicial delay, an issue plaguing India, were taken up in a carefully documented special report on the courts in Delhi (‘Judicial delays to criminal trials in Delhi’, vol. 7, no. 2, June 2008).
Although each of these editions goes into the particularities and peculiarities of rights abuse, law and institutional behaviour in the country under study, each is bound to the others through distinct thematic linkages, and it is in keeping with these that this most recent special edition on Burma has been prepared. For this reason too this edition should be of concern and interest to colleagues and students of the rule of law and human rights in all parts of Asia, whether they be in Indonesia or Pakistan, who may find that the experiences of people in Burma have more in common with their own than they might have assumed from the reduced and simplified reporting on that country which dominates global media, and unfortunately much of the human rights documentation as well. The story of Burma’s judiciary in the last 50 years, above all, offers a sober lesson for persons in other countries who may be mistaken for thinking that a judicial system once established to some extent cannot be pulled to pieces again within a short time. In Burma this was done systematically and in a number of phases, the first blows to the system so soft as to be almost unnoticeable. Even once the military regime took power, it was careful not to take on the judiciary as a whole, but go at it a piece at a time relying on its agents to pull it down from within, so by the time that the true scale of the operation revealed itself, it was already too late.
Burma caught the world’s headlines for the second time in a year when in May the immense natural disaster that was Cyclone Nargis struck the country. Not only did the military regime resist efforts to extend to it foreign assistance and instead persisted with a farcical referendum to wave through its new constitution, but it also has taken legal action against some persons in the country who tried to fill the gap left in the absence of foreign donors by collecting money and materials and going to distribute these themselves, some of whom then spoke to radio stations based abroad about what they had seen and done. Others involved in gathering and burying dead bodies also were detained, as were local journalists. The patterns of illegal custody, sporadic or non- existent criminal procedure and blatant abuse of fundamental rights that are seen in the cases arising from last September can also be seen in these events and cases. This edition contains a brief article on these and related concerns arising from the cyclone tragedy, which the Asian Legal Resource Centre continues to monitor closely and document with a view to further analysis and reporting at later dates.
This study was written and edited by staff of the Asian Legal Resource Centre and colleagues, among them Min Lwin Oo, on the AHRC Burma desk and Burma Lawyers’ Council, and colleagues at Yoma 3. Many persons in Burma have also in one way or another contributed to its contents, and taken together their work is the substance of this special edition, but we regret that they cannot be named.