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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, 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 keeping 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 demolished 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 conventional 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, lawyers 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 hampered by the systematic
demolition of all other organs of government outside of the executive over the
past half a century.
In the 1950s, despite extremely pressing conditions, the
judiciary 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
retain 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, experience 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
publication 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 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 countries. It is for this
reason that whereas many groups and researchers that have studied mostly elite
affairs and abstract notions of the rule of law and human rights have posited an
improvement 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 system 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.
Cyclone Nargis
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.
Acknowledgements
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.
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The guillotine is no solution to despair
Asian Human Rights Commission statement, AHRC-STM-006-2008,
January 7, 2008
While expressions of despair manifest themselves in many
countries in the Asian region, all that the governments of these countries offer
to those who express their despair is the guillotine. Ruthless repression by way
of causing forced disappearances, assassinations, torture and the destruction of
property are the only responses of these governments to expressions of protest
arising out of the deepening of the processes of poverty, causing of
unemployment, destruction of livelihoods and increasing discrimination. The
recent examples from Burma, Pakistan and Sri Lanka demonstrate this.
Over forty years of militarism has destroyed the livelihoods of
the majority of people in Burma. Only a handful that are close to the military
regime and others who participate in keeping the machinery of repression alive
obtain some benefit from the situation. Together with destitution, destruction
of livelihoods and widespread poverty there has also been the destruction of the
entire political system and the administration of justice. There are no credible
means of public representation through political leaders or parties. There is no
free media and the system of the administration of justice after years of
suppression has disappeared. The policing system is basically a surveillance
system on the people and independent investigation into crime does not exist.
Naturally there are no independent investigations for the abuse of human rights
by the military regime itself. Even under these circumstances the people have
tried to organise and express themselves. The last such intervention was in
September 2007. The response was a brutal crackdown including murder, forced
disappearances, secret imprisonment, torture and displacement of dissidents
including Buddhist monks.
The only outlet that the people could have relied on was an
investigation by the United Nations, but this move was defeated by strong
players in the international community including the Indian government. The
Indian government argued that since the military regime promised to conduct
inquiries no external inquiries were necessary. If a murderer promised to
conduct an inquiry into the alleged murder, or for that matter any alleged
criminal gave an undertaking to conduct the inquiry into the criminal act,
anyone would see the ridiculousness of such a situation. The Indian government,
which calls itself the largest democracy in the world and which also got the
largest number of votes to sit in the UN Human Rights Council, does not see this
as ludicrous. In fact, this is deliberate hypocrisy which some attribute to the
possibly little advantages that India may have in the exploitation of some of
the natural resources of this desperately poor country. The rest of the
international community was not able to do anything in the face of such a
ludicrous situation.
The result is that the people of Burma are continuously
subjected to the draconian military rule of the regime that can do whatever it
likes with the lives of the people. This includes keeping about 40 per cent of
the children in the country living in a state of malnutrition.
With the spread of the ideologies of anti-terrorism any
legitimate protest can be made to appear as a crime. When people in despair,
facing nothing but repression, try to get themselves out of this situation the
state offers them only the guillotine. The people are trapped and often ask, how
are we to fight against the conditions of poverty and repression? There is no
answer to this under the present circumstances.
Those who wield the guillotine not only crack down on all acts
of protest but also triumphantly claim that they are doing this in order to save
humanity from terrorism. Within this context, mass murderers appear as heroes.
There is hardly any sense to be found in the discussions on this issue... |
Posted on 2008-09-24
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