“We have to fight against unjust law with just law”

Myint Thwin, practicing lawyer and former political prisoner, Burma

In this interview, Myint Thwin, a practicing lawyer and former political prisoner, talks about his personal experience of being arrested, detained and tortured by Burmas military junta. He compares how the practice of torture has evolved from pre-2012 to post-2012 political changes in Burma. Also, after 2012, as a practicing lawyer, he noticed the emergence of court judges, whom he described as no longer afraid of the military, and who can decide independently. This interview was conducted by Danilo Reyes, editor of article 2.

article 2: Can you tell us about your practice as a lawyer in Burma, and your experiences of being arrested, detained and tortured? About the torture victims you met in jail and how was their condition?

Myint Thwin: I am a chief court advocate. I became a lawyer in 1987. During the 1988 student movement, I actively participated. I was arrested in 1990. I was detained in a private cell from 1990 to 1991. From 1989 to 2004, the military intelligence tortured political prisoners and activists.

While I was in detention, I was interrogated at the headquarters of the military intelligence. I was tortured as well. I saw students and Buddhist monks who were also tortured. They tortured them by putting needles under the soles of the students’ feet for several hours, put spotlights on their faces, electrocuted them with electric shock, beat them with sticks, and rubbed rulers on the skin of their front lower legs.They positioned them upside down. I was also tortured in the same way. Others had hot wax poured on their skin, their penises burned with lit cigarette butts, and other methods. When I was in prison, I met many who were tortured in different ways.

Until 2004, those who were arrested by the military intelligence, the political prisoners and activists, were tortured in the same way. From 1991 to 2008, I was arrested twice a year. They did not put me in jail but kept me in custody for many days. From 2004 to 2010, the police (Special Branch) practiced torture similar to that of the military intelligence in the past. By that time, I was no longer a political prisoner. I went to courts inside the prison as the defence lawyer for political prisoners. Most of the National League for Democracy Party (NLD) members and 1990 election winners were arrested.

After 2010, police hardly tortured the political prisoners and activists. Although less political prisoners were tortured, persons who are arrested under the Penal Code are still being tortured. Most of them are murderers, drug sellers, robbers and thieves and they are interrogated in police custody and tortured.

From 2012 to present, although activists are still being arrested under criminal cases, it is no longer common for activists to be tortured as it was in the past. The government is now using article 18 of the Peaceful Assembly and Procession Act against the activists, and section 505(b) of the Penal Code against the leaders. The sections that are used now have shorter prison terms compared with the 2007-2008 period, when authorities used section 124 (A) of the Penal Code, so that life sentences could be imposed on political prisoners.

During Burma’s long civil war, ethnic minorities in the conflict areas were tortured when the military suspected them of being rebels. Occurring in military camps, these cases never reached the court. Despite peace meetings between the leaders of ethnic armed groups and the military as well as the announcement of several ceasefires, the conflicts are ongoing. If the Burmese Army suspects civilians to be rebels, they arrest, detain, interrogate and torture them. They imprison them for violation of section 17 (1) of the Unlawful Association Act.

We have legal provisions (not a specific domestic law) against torture, and prohibition on the police or military intelligence from committing torture. When the accused makes a confession before the court, the judges have to check all over their body whether they have been tortured or not. If they were tortured, the judge must reject the confession. But the police torture their victims on private body parts purposely to conceal the injuries—like by burning their penis with cigarettes—to make sure judges would not find the victimshave suffered from torture.

article 2: After 2012, there is the idea of an opening or space for activists. You mention that during the military regime, it was the military who committed torture, but now it is the police who are doing it. They torture suspected murderers, robbers, etc.

Myint Thwin: Yes, during the military regime, activists are most likely victims of torture. Even if they are not political party members or political activists, but just persons who help other victims or ordinary people with their rights, the military intelligence would arrest them and put them in jail for theft or other fabricated charges.

It is correct that those who are being tortured are either activist or ordinary persons; one who challenge the authorities, and another one being those arrested for robbery or murder—or ordinary crimes. Victims of torture are not necessarily activists, they can be anybody.

But after 2010, the activists attached to a political party, for example activist Daw Bouk Ja from Kachin State, are being closely monitored. If they make a small mistake, the authorities immediately arrest them. Recently, most activists have been arrested for taking part in peaceful processions and protests.

There is a law that guarantees the right to assembly: the Peaceful Assembly and Procession Act. In the past, you had to seek permission before you could protest, but an amendment to this law removed the requirement to seek permission. To notify is now enough, however, protesters not only continue to be prosecuted under this law, but they are now also facing violations under section 505(b) of the Penal Code, for causing alarm and scandal. This Code can impose a punishment of several years’ imprisonment without bail. The protesters are thus now charged under criminal offences and sentenced to jail. They are tortured mentally by repeated arrest rather than physically tortured.

article 2: In areas where there is armed conflict, those who oppose the government are still subjected to torture when suspected as rebels?

Myint Thwin: Many disappearances have been conducted by the Burmese army in ethnic states such as Shan, Kachin and Kayin States. Young men were arrested as porters and some were accused of beingrebels and disappeared, and girls were raped and killed. Earlier, there was no hope to find them again or to prosecute the perpetrators.

However, according to the 2008 Constitution, we now can file a writ petition for such disappearance cases. We can write that someone has been arrested by which battalion, by which rank officers, and for how many days. Under article 296 (a) (b) (c) of the Constitution, the Union Judiciary Law article 16 and Criminal Procedure Code section 491, we can file a writ.

article 2: As a lawyer, former political prisoner and torture victim yourself, when you go to court to argue a case, based on your experience, do you think that the court will provide you and your client a remedy or redress? Do you have that in mind? Do you have confidence in the court?

Myint Thwin: I will answer that in two parts, based on the cases that I handle: criminal cases and civil cases.

Firstly, in criminal cases, whenever I stand for the activists and political cases, I know that the judge will not make a fair judgment. But in the hearing, I ask questions that can reveal the oppression, abuse of powers and torture by the authorities. I went to prison court for political prisoners and found that township courts follow the orders of the military personnel. The charges were reduced only if we appealed at the higher level, district or divisional courts.

My clients, the political prisoners, also don’t care about winning or losing the case. They believe that they are doing right, and that they can show the people what is wrong. They only hope to throw out the military dictators and have strength for it, but not to get any opportunity to win.

Secondly, in civil cases, in 2009-2010, I sued the company backed by the military and also the cronies of the company for grabbing land. When I clearly pointed to the violations they committed under the law, I won the cases. At that time, the order (for me to win the case) came from the military generals.

After 2012, there are two kinds of judges we see emerging: one kind are the judges who are afraid of the military, and the other are judges who are not afraid of the military. These are judges who can now decide independently, and are not influenced by the military.

We can see that Lt-General Thar Aye still interferes after he became Chief Minister of Sagaing Region. Ministers are former military generals, so they are still used to do the same thing.  According to the Constitution, the Judiciary, the Executive and Legislature are independent from each other. In a Union Government meeting, the Chief Justice is not required to attend as he is independent. And, the Attorney General of the Union is a member of Union Government. However, some Ministers still think they can order judges to listen to them. So we fight against them in accordance with law.

article 2: I understand that there is a purpose. You know that whether you win or lose, there is an education process in the courts, among the victims, and even judges. They can argue that what they do is wrong and I think you have a very strong sense of what is wrong and what is right. Can you imagine court judges, law officers or police who people can have full confidence in, that they will protect rights?

Myint Thwin: Yes, I have. To build up a democratic country, we must try to reach the dream. We have to fight against this system in accordance with law. To be a democratic country, rule of law is the most important thing. To have rule of law, every citizen and government must know the laws. Citizens, government and judiciary have harmony in justice in accordance with law. We have to fight against unjust law with just law. I believe that we will achieve this goal one day.

article 2: What is your opinion of ordinary Burmese views on the police, law officers and judges? What do they think of them? Do they fear them or do they think that they are fair and follow what is right?

Myint Thwin: They are still afraid of them and can’t trust the judgements. So lawyers, advocates, politicians, and rights activists share with them the knowledge of laws so as not to be afraid of them. We can educate them by giving legal education training. I have already given more than 200 legal education trainings in six states and in seven regions in Burma.

I can share with them not to be afraid of authorities and let them know that they can even prosecute the authorities.

article 2: What is their response?

Myint Thwin: They are now having courage, and some can now talk back to the military generals. In Naypyitaw, one general told me that “some farmers here said they aren’t afraid because they have U Myint Thwin”.

article 2: Thank you very much, Myint Thwin.

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