Editorial board, article 2
The defining characteristic of the crackdown on the largest protests in Burma in almost two decades this September 2007 was its patent illegality by all standards of law, including the country’s own law.
The military regime at no time publicly declared a state of emergency or made any other formal declaration that would allow it to carry out extraordinary measures under national provisions, let alone international standards. (It announced after the fact that the curfew imposed on the two largest cities, Rangoon and Mandalay, had been conducted in accordance with section 144 of the Criminal Procedure Code. That section requires the order to be issued by a magistrate: no mention was made of one, as anyhow the courts in Burma today are nothing more than an extension of the executive.)
Nor did not concern itself even with the pretence of law in rounding up and detaining thousands of people. Whereas foreign correspondents and others referred to the persons and monks as “arrested”, even the state-run newspapers did not use this term, instead referring to them as having been “brought, investigated, questioned” (hkaw-yu, sit-hsei, mei-myan). They were in fact abducted, and by the standards of international law, forcibly disappeared, as they were taken by state agents and persons acting with their authorisation or support and placed outside the protection of law (see article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance). At time of writing, an unknown number were still being held, none with access to lawyers or representatives of the International Committee of the Red Cross, which has been unable to visit places of detention in Burma since 2005, despite having an office and staff in the country.
The uncertainty about the conditions and fate of these people and members of the clergy—the latter by now having been disrobed—arises because of the illegality of their incarceration. Global demands for details of the numbers taken and their circumstances cannot be answered because no attempt has been made by the authorities in Burma to follow any established set of norms that might make such information readily available.
This is the characteristic of all instances of where legality is abandoned in favour of expediency, usually as a result of direct or implicit government directives. In Thailand, for instance, no one knows the numbers of persons killed in the “war on drugs” that was carried out by the government there in 2003 for the same reason that no effort was made to apply ordinary law, set criteria and follow administrative procedures that would allow for this. On the contrary, every effort was made to abandon these norms (see article 2, vol. 2, no. 3). Similarly, the numbers and circumstances of those extrajudicially killed in the Philippines during recent years remains a mystery (see article 2, vol. 6, no. 1), as does the number of those abducted and disappeared in Sri Lanka in the late 1980s (see An exceptional collapse of the rule of law, Asian Human Rights Commission, Hong Kong, 2004).
In every place where legality is abandoned, the institutions ostensibly designed to protect it have been deliberately weakened over time so as to prevent them from doing anything when needed most. They are either made irrelevant or never built to an extent that they might be able to intervene in defence of basic human rights in the first place.
In Burma, traditions and institutions that to some extent existed in the 1950s have over the last half century been steadily demolished so that now nothing exists other than their facade. But whereas it is easy to conclude that the courts in Burma are corrupted, have no independence, and that any cases freighted with importance are decided not by them but by outside persons, it does not lead to a more informed understanding of conditions in the country.
For this reason, the Asian Human Rights Commission (AHRC) and Asian Legal Resource Centre (ALRC) have in recent years closely studied and documented numerous cases that afford greater insight into those conditions. Some of those cases are contained in this report, “Burma, political psychosis and legal dementia” (article 2, vol. 6, no. 5). Ten documented and raised in 2007 describe instances of farmers imprisoned for complaining about corruption or incompetence, deaths in custody, illegal video possession, forced disappearance, assault, arbitrary detention and sedition for talking about workers’ rights. There is also a
special section on six jailed human rights defenders, the Hinthada 6, and the circumstances of their arrest, trial and imprisonment, and an interview with the mother of a young man who was killed by special anti-drug squad police, on her heroic but ultimately unsuccessful attempts to obtain justice.
Whereas human rights documentation on Burma has tended to privilege political detainees and emphasise draconian security laws, the concern of this study as shown through these cases is primarily with ordinary victims of dysfunctional criminal process and the commonplace operation of a Penal Code that already grants extensive powers to government officials under colonial- era provisions.
The cases together speak to the legal dementia to which the report title alludes. Dementia is a condition characterised by memory failures, personality changes, and impaired reasoning. All of these are evident in the handling of criminal cases in Burma, and indeed, in the management of the state as a whole. All affairs that should be conditioned by a degree of rationality are instead haphazard, the result of impaired reasoning, lost memory and unpredictable changes in temperament.
A person complaining that she was illegally coerced by a police officer should know what is likely to happen after that: how the complaint is investigated, and where evidence is sufficient, what will happen next. This is not the case in Burma. A citizen making a complaint cannot reliably anticipate the outcome. She may obtain some satisfaction, or she herself may end up in jail.
Here is the problem: not that all cases fail but rather that there are no objective criteria upon which a person involved in a criminal case, as a plaintiff or defendant, may determine the likelihood of success or failure. This is the dementia of the legal system, itself a product of the political psychosis of which Basil Fernando writes in the foreword.
Another important thing to note about the contents of this report is that they are concentrated in typical urban and rural settings in the centre of the country, where the perpetrators of abuse may more often than not be police and petty administrators—the faces of government to most people in Burma—rather than the soldiers for which it is known abroad. This should not be taken as deliberate neglect of the outlying areas and the atrocious conditions affecting villagers in remote regions. On the contrary, it is an explicit acknowledgment that those conditions are far worse. The fact that police and petty bureaucrats can kill and prosecute people with impunity in urban areas at the centre of the country is itself an indicator of the violence that is being committed against entire populations in mountainous border regions. It is also a fact that they are able to do this due to the military dominance of the whole.
Finally, this study has been prepared cognisant of a number of long-term problems of human rights documentation concerning Burma. One is that much of this documentation has been shallow and repetitive. Descriptions of specific abuses abound, especially of the many atrocities committed by the army, but these ultimately offer no more understanding of conditions in the country than that the army commits atrocities. This is hardly a revelation or in any way particular to Burma. Wherever powerful armed forces are not restrained by other parts of administration or society, widespread abuses follow. Thus, it is necessary to document more purposefully, in order that cases and institutional details may be used to reveal more than in the past.
Another feature of much work on Burma is that it has been preconceived. Persons with particular geopolitical interests and established notions of conditions in the country based not upon meaningful study of the place itself but on ideas that they have brought with them from elsewhere tend to make spurious comparisons, such as with North Korea, and draw glib unhelpful conclusions. Others may have particular agendas based upon notions of certain categories of rights, religious affiliations or other specific established interests. Again, none of these approaches are helpful in building a corpus of better-informed human rights material on Burma.
It follows from the above, that when it comes to the making of recommendations, such work also tends to have nothing to offer other than some generic suggestions of little merit. This is necessarily the case, because of the gap in understanding and analysis that exists between two-dimensional descriptions and thus, equally two-dimensional prescriptions.
For these reasons, this special report deliberately gives no recommendations. Rather, at a time of intense interest in conditions in Burma, it is intended only to offer critical insights to assist persons attempting to obtain a greater understanding of conditions in the country, to further discussion on important yet neglected areas, and to go beyond politicised and narrow human rights reporting about the issues there. It is based not upon the observations and jottings of some foreign researchers sent for a period to compile material for a self-important document—an approach that has proven itself to be as morally bankrupt as it is professionally flawed—but rather upon the long- term work of competent and involved persons in the country together with interested and knowledgeable ones abroad.
The report also does not offer recommendations because its contributors do not presume to have a bundle of answers available to the immense problems posed to the people of Burma today. What they can offer are some details of aspects of the society, law and politics of the country as they exist today that deserve attention by all persons keen to know something more about where Burma stands, as opposed to where it should be, and how the gap between these two points might be bridged.
A note on names
Throughout this report, where official documents or sources are cited, Burma is referred to as Myanmar and likewise other names are changed accordingly, in particular, the former capital Rangoon as Yangon.
Acknowledgements
This study was written and edited by staff of the Asian Legal Resource Centre and colleagues, among them Min Lwin Oo of the Burma Lawyers Council, and Kyaw Htet and colleagues at Yoma 3. Special thanks too to Aye Aye Mar for her work.
The list of all persons and organisations that have contributed to its contents in one way or another would be very long. To keep it simple, here we just extend our deep appreciation to the members of the Human Rights Defenders and Promoters group, many of whom are currently among those being held in unknown locations and conditions since the protests of August.
We also especially recognise the work of a number of remarkable lawyers who have taken on human rights cases at the expense of their ordinary practices and have done their best to maintain a tradition of justice in a system bent upon injustice, who shall remain unnamed.
Dedications
This report is dedicated first to the Hinthada 6. In most parts of Asia, the work of human rights defenders is fraught with danger and uncertainty, but this is most of all true of Burma, as typefied by their utterly unjust imprisonment.
It is dedicated second to Daw Mi Mi Htun, the mother of Maung Ne Zaw, whose story is contained in this document.
And it is dedicated third to everyone who took to the streets in August and September 2007, to demand an end to the insanity that is their political system, for reasons that need no further explanation here.