Burma Desk, Asian Human Rights Commission, Hong Kong
The existence of a justice system, in the true sense of the word, cannot be inferred from the existence of a building called a court or a person called a judge. A justice
system derives from the extent to which that building stands independently from others, and the person referred to as the judge has authority to act with integrity. It derives from the confidence invested in the system by the public, and confidence of the judiciary in itself.
But in Burma the judiciary cannot be properly called an agency for the delivery of justice at all. As another arm of the executive, it is not a system upon which rights can be asserted and guarantees for participation in the ordinary affairs of the society obtained. This must be the starting point for any understanding of the conditions in Burma that prevail over the lives of millions there.
Another feature of Burma is that its law-enforcement officers are better understood as order-enforcement officers. The distinction is important. Law enforcement requires proper criminal investigations; order enforcement requires none. Law enforcement requires training; order enforcement is easier without it. Law enforcement depends upon rational behaviour through written rules and communications along a hierarchy; order enforcement can be arbitrary and undocumented. Law enforcers are themselves answerable to the law; order enforcers are not. Ultimately, order enforcement works with or without law, as suggested by historian Mary Callahan in her work on colonial-era policing and military force: “[The] failures to establish any kind of effective local policing established the pattern of order maintenance that exists to today: when local affairs get unruly, the state sends in the military” (‘State formation in the shadow of the Raj’, Southeast Asian Studies, vol. 39, no. 4, March 2001, p. 521).
Notwithstanding, the rule of law is used in Burma as a rhetorical device for political purposes. After the former prime minister and intelligence chief, Lt-Gen. Khin Nyunt, was placed under arrest for corruption in 2004, the state-run media iterated that “no one is above the law”. Newspapers have asserted that the “rule of law” is a necessary part of the building of a modern and developed state: the central plank upon which the regime has unsuccessfully sought to build some legitimacy. These are accompanied by exhortations to the judiciary that it do its job, such as a speech in early 2007 by the recently deceased prime minister, General Soe Win, to the effect that if the courts act corruptly and unfairly then they will be “loathed”. The chief justice, U Aung Toe, dutifully reiterated the message in the following weeks. Such warnings are not new. In 1994 Lt-Gen. Khin Nyunt, at that time secretary-1 of the former ruling council, himself delivered a scathing attack on judges and law officers, accusing them of gross malpractice and negligence.
So the generals are caught in a contradiction: do as we say, not as we do. Not surprisingly, persons familiar with the day-to- day practices of the courts in Burma admit that corruption is endemic and growing. The government’s attempts at creating the opposite impression are only likely to further erode public confidence rather than stem the extent of malfeasance. “To use the trappings of judicial form where the essential conditions for a judicial decision are absent,” Friedrich Hayek warns in The Constitution of Liberty, “Can have no effect but to destroy the respect for them…”
Complaints
Expressed concern for the workings of the judiciary and its 
subsidiary organs is accompanied by increased effort to give the appearance that there exist avenues for complaint. In the first quarter of 2007 there were frequent notices in state-run newspapers inviting complaints against Supreme Court staff, law officers, barristers and ministry and city council officials who are alleged to have committed malpractice. These gave the postal address, fax, phone, and sometimes email contact details of the same offices to which the accused officials belong, where complaints could be lodged. Some, such as the Supreme Court notice, contained a subtle but important caveat, that the people are invited to make “authentic” or truthful complaints.
People in Burma who make complaints deemed to be “false” risk court and jail. The director-general of the police, Brig-Gen. Khin Yi, has given press conferences in which detailed rebuttals have been made of alleged extrajudicial killings and other gross abuses that have become widely known. But simultaneously other news reports have sought to reassure genuine complainants that they won’t face reprisals, that investigations will be undertaken and that action will follow where investigations reveal wrongdoing, particularly concerning allegations of illegal forced labour.
What actually happens to complainants in Burma is best understood by looking at specific cases. Ma San San Aye and Ma Aye Mi San accused the chairman of a local council in Pyapon Township, Irrawaddy Division of rape in 2002 and were themselves jailed for making false accusations of grievous offences. The mother of Ko Aung Myint Oo withdrew a complaint against police officers of Myinchan Township, Mandalay who reportedly assaulted her son in 2006 after she struck a deal with one of the perpetrators; the mother of Maung Ne Zaw, a resident of Mohnyin in Kachin State, was forced to flee the country due to constant harassment by special anti-drug squad police against whom she lodged a complaint over the death of her son in custody the same year. After U Tin Nyein complained that the authorities in Bogalay Township, Irrawaddy Division, had negligently demolished an irrigation embankment and flooded his paddy crop he was himself imprisoned in 2006, but the Supreme Court upheld his appeal and he was released; the court rejected the appeal of U Aye Myint and U Win Nyunt against a two-year sentence for having complained of corrupt practices among 
village council authorities in the same township. The two men, one a school headmaster and the other a government mass organisation executive, were acting on behalf of a group of villagers. The township authorities accepted the complaint, reprimanded the officials and ordered them to return illegally collected monies. The irate officials lodged a counter- complaint with the district council, which reversed the earlier order and instructed that the two men be prosecuted.
Other cases that go to trial are decided without regards even to the domestic law and basic criminal procedure. Nyi Nyi Htun was in 2006 sentenced to three years’ imprisonment for illegal gambling in a summary trial presided over by a magistrate without the requisite authority. U Aung Pe was sentenced to three years’ imprisonment on a charge of giving unlicenced tuition, whereas his crime was described in the judgment as having “hung a t-shirt bearing an image of Daw Aung San Suu Kyi” in his classroom, which is not illegal. Maung Chan Thar Kyaw, a 15-year-old boy, was in 2004 convicted of obstructing the police in the course of their duties: he was detained and tried without regard to the Child Law 1993, which was passed after Burma joined the international Convention on the Rights of the Child, only to be freed after his case became the subject of high-profile campaigning by groups outside of the country. Ma Su Su Nwe and u Aye Myint were released from prison and U Aye Myint were released from prison terms related to complaints made to the ILO only after the government was threatened with eviction from the 
world body and legal action in the International Court of Justice. U Thein Zan was charged with causing a public disturbance after posting defaced state propaganda articles on his suburban fence; initially denied bail at a hearing where a person presumed to be a police officer stood in the courtroom and took photographs of observers, he was later freed and he charge against him dropped after two strangers came to his house by Land Rover and said that they would take care of things. Not long after, another court accepted two cases under the same section of law against assault victim U Myint Naing and five associates, who were blamed for aggravating villagers. Myint Naing alleged that the attack was planned and instigated by local authorities with the collusion of the police; the court accepted his complaint too, but only on one minor charge against three men on the bottom rung of the bureaucratic ladder (ten- household heads) and three other persons.
Together these cases speak to the key feature of both criminal justice in Burma and the state itself: that there is no predictable outcome of any discourse or exchange. If there were, even if coercive, it would allow citizens to plan their behaviour accordingly, with a reasonable expectation of a particular outcome. But for people in Burma, there are no objective criteria upon which to determine the consequences of a visit to a police station, a complaint to a ministry or a case before a court. This arbitrariness is the true indicator of the “un-rule of law”. There is no adherence to legality of the sort found under some authoritarian regimes, such as Nazi Germany, apartheid South Africa or Chile during the rule of General Augusto Pinochet. Rather, the only law that rules in Burma, as seen during the crackdown on protests in September 2007, is the law of convenience.
Killings
Reports of deaths in custody for ordinary criminal offences are increasingly common in all parts of the country. For instance, according to the Oslo-based Democratic Voice of Burma (DVB) Radio, on 27 July 2007 a 58-year-old man died while being transferred from police detention to a prison in Mandalay Division, upper Burma. U Ohn Kyaing was among seven pagoda trustees from Pan-aing village arrested and charged over the theft of the historic Shwemawdhaw Pagoda’s diamond-topped umbrella. He had allegedly been tortured during interrogation at Meiktila Police Station No. 1 and not received medical attention. The court hearings continued against the other six.
Two days later, a young man accused of stealing a motorcycle also died in the custody of the same police. Ko Kyaw Htay, 36, was kept in the police lock-up after being arrested at his house late at night by a unit of ten officers from Meiktila Police Station No. 2 on July 27, who according to his mother began assaulting him from the moment that they slapped on handcuffs; he was later transferred to the same station as U Ohn Kyaing, where he allegedly died. Visitors were denied access to him just a few hours before his death.
Meanwhile, on July 30 special drug squad police operating in the capital of the northern Kachin State reportedly beat a young man to death. According to the Delhi-based Mizzima news service, 22-year-old Maran Seng Aung was sitting on the road in the vicinity of his home in Myitkyina around 9:30am when three officers on motorcycles came, bound his wrists and assaulted him in public before pulling him into an auto rickshaw. By 5:30pm
his dead body was in the local hospital. His mother has reportedly been warned against pursuing a complaint in the local court. Mizzima reported that people in Myitkyina claim that there is at least one death in the drug squad’s custody every month.
At the start of August 2007, 38-year-old Ko Maung Myint also reportedly died in detention in the northeastern town of Muse having been stopped while illegally crossing the China border and not having enough money with which to pay off the police as demanded. When his wife came to the station on the third day of his custody, August 4, she was told that his body had been sent to hospital. When she went there she reportedly saw bruising and injuries suggestive of an assault.
The increasingly frequent accounts of bloody assaults by the police and other local security forces in Burma speak to the fearlessness with which these personnel operate and the lack of avenues for complaint, as described above.
But whereas the existing state institutions cannot themselves be called upon to offer redress to victims, in the past there was at least one other limited option. The International Committee of the Red Cross (ICRC) could earlier access prisons and other centres of detention and confidentially report on specific cases to higher authorities. It had been opening up new offices around the country and for some time had been making important interventions, in accordance with its global mandate, that must certainly have saved lives.
However, since late 2005 the ICRC has been stopped from visiting detainees, after the authorities refused to comply with its standard arrangements and procedures, including that it be entitled to talk with prisoners in private. At the end of June 2007 it issued a vigorous press release in which it roundly condemned the government for its attempts to thwart the committee’s work in the country. Its president, Jacob Kellenberger, was quoted as saying that
The organization uses confidential and bilateral dialogue as its preferred means of achieving results. However, this presupposes that parties to a conflict are willing to enter into a serious discussion and take into account the ICRC’s recommendations. This has not been the case with the authorities of Myanmar and that is why the ICRC has decided to speak out publicly.
In response, the government used one of its proxies to accuse the committee of relying on “wrong assessments” and “made-up exaggerated stories”. The wife of the junta’s head, who doubles as the head of the Myanmar Women’s Affairs Federation, in July observed Myanmar Women’s Day by saying that the ICRC was to blame as its personnel “mostly met the prisoners who were in the list given by anti-government groups… [which] were followed by unrest and protests at the jails” and so “the authorities had to hold discussions to lay down new procedures”.
The belligerent response reinforced the ICRC’s point. The government in Burma has long approached discussions with international organisations not with the intention of seriously taking into account their recommendations but in order to give the appearance of dialogue while achieving nothing. In this manner the armed forces have remained in control for decades.
However, people in Burma need international groups to persist in their efforts to intervene, if for no other reason than that it will be many years before any credible domestic institutions may exist upon which citizens can rely to assert their rights and obtain even some limited form of redress. It is for this reason that the steady withdrawal of the ICRC from the country has been a great loss for people in Burma, and one felt especially during the days of mass detentions in the aftermath of the August and September 2007 protests.
Thugs
One feature of the handling of the protests, about which the Asian Human Rights Commission (AHRC) had expressed concern for some time, was the use of government-organised gangs as proxies for state security forces.
Reports of the use of these gangs had become increasingly frequent throughout 2007, as thugs, apparently most under the direction of the Union Solidarity and Development Association (USDA), a mass-organising body, had repeatedly attacked human rights defenders and persons holding prayer vigils for the release of political prisoners. In some cases council officials, police officers and other state security personnel were known to have been among those carrying out or organising the attacks. The courts have then been used to add insult to injury through the laying of charges against the targets of the violence, rather than the perpetrators.
The case of the Human Rights Defenders and Promoters group in Hinthada, west of Rangoon, is indicative. Following the assault on members of the group in April, two of whom were hospitalised with serious injuries, six were themselves charged with offences related to a series of incidents that the authorities claim provoked the violence, and subsequently sentenced to four to eight years in jail. By contrast, six persons accused of assaulting them were all released from custody. Another six whom they accused of being behind the violence, including local USDA officials, police and the village council chairman, have all escaped investigation. The court did not even call those officials for inquiries about the complaint that was made against them.
Similarly, after a man in Mattaya, upper Burma, assaulted U Than
Lwin on 15 June 2007, he ran for cover in the local USDA office. Police who came to the office were refused access, and they did not demand it, despite the fact that the law of criminal procedure gives them the right to enter any premises where an alleged criminal is believed to be hiding. Nine persons, including a number of Than Lwin’s children, were thereafter charged and jailed for periods of five to seven years while no action was taken against the assailant.
That it is easy for authorities in Burma to organise a gang to harass, assault and abduct anyone of their choosing speaks to the complicity of the state in systematic abuse there. And just how easy is it? According to a participant in the illegal arrest of rights defenders gathering at a pagoda in Rangoon’s northern suburbs during May, his gang was not even paid for the job but just taken to a teashop for a snack afterwards. The AHRC also has documents that reveal unequivocally that the gangs are working as hierarchically organised muscle under township councils and USDA offices.
The use of violence through non-conventional forces has been a part of how Burma’s military regime has got things done for many years. Thugs were used at the front of the brutal attack on a convoy carrying democracy leader Daw Aung San Suu Kyi and her supporters at Depayin in 2003. However, the extent to which they have now been incorporated into the routine monitoring and control of the population indicates a disturbing new phase in the country’s downward slide, away from the “law and order” that the military junta claims to uphold and towards government by outright thuggery. It signifies a further diminishing and displacement of the police and courts, and a strengthening of arbitrary and extralegal institutions with no other agenda than to manipulate and brutalise.
As the balance of power shifts, it will become increasingly difficult for even the most mundane and ordinary criminal procedures to be followed in Burma. That the police who came to look for Than Lwin’s attacker did not bother to enter the USDA office speaks to where the real authority lies. USDA and local government officials also successfully covered up the murder of Ko Naing Oo inside a Rangoon council office during March 2007 after a petty family dispute. They even arranged for his prompt cremation, to prevent subsequent post-mortem inquiries. In 2006, a USDA executive in the delta region escaped investigation and prosecution after allegedly raping his 15-year-old neighbour.
The rising number of violent and coercive incidents involving USDA members, thugs, and un-uniformed police, army personnel and their affiliates—together with the manifest absence of institutions or channels for redress—presages growing lawlessness and fear in a country that has for decades been characterised by lawlessness and fear. Whereas the military regime in Burma promotes itself as a defender of law and order, its agencies and agents are in fact the greatest threats to these principles, not to mention the rule of law and human rights.