Two cases in Burma’s courts that recently have attracted some public attention reveal aspects of a legal system being cynically manipulated, aspects that afford strong guarantees for the continuation of authoritarian practices and mentalities, large and small, after the by-elections this April.
In February the Rangoon Western District Court gave its verdict in the case of Ko Tin Maung Swe, a 36-year-old taxi driver whom a gang beat to death in December 2010. Members of the gang had apparently had an argument with some taxi drivers earlier in the evening, and around 10 young men had come to the restaurant in Sanchaung Township where Tin Maung Swe was having a meal around 11:30pm so as to set upon patrons, most of whom were drivers finishing up their shifts before going home. Tin Maung Swe tried to flee but the gang attacked him at the entrance to an adjacent hospital, and he died shortly after.
Police arrested four men over the killing and charged them with murder. But, the court shifted the charge from murder to section 325 of the Penal Code, causing grievous hurt, on the spurious reasoning that because they were armed with sticks and clubs rather than knives or swords they did not intend to kill the victim. Against two of the men it further shifted the charges from assault to simple abetment. Finally, on February 24 Deputy District Judge (3) Hoke Yi sentenced the first two men to five years in prison each: two years less than the maximum sentence even for that offence. The two men charged with abetment he sentenced to just one year and three months in jail each, minus the time held in detention during the trial, which conveniently comes to almost exactly one year and three months.
This method of convicting an accused but sentencing him to a period of time already served, so that he is released at the time of the sentence or shortly after, is an example of how the legal process in Burma is commonly and cynically manipulated, typically in cases where judges have been paid off by parties but where for various reasons they feel that they cannot order an acquittal. It is also reportedly common for judges in cases where a number of accused appear and some have money but others do not to reorganise the charges in this way so that those having the wherewithal can pay for their release, as in this instance, while the judge can still give others longer sentences, to keep up the appearance of doing his job correctly. Of course, for the purpose of higher-ups, that appearance need only be on paper: according to some reports, during the trial this particular judge showed a patent disinterest in proceedings and at times spoke at length on his mobile telephone while witnesses were deposing.
In another rather different type of case, this March the Rangoon Northern District Court gave its verdicts against Padoe Mahn Ngyein Maung, a 70-year-old central committee member of the Karen National Union, whom immigration officers arrested on 24 July 2011 as he tried to enter Burma on a false passport. A township court had already convicted Ngyein Maung over use of the passport to enter the country illegally. Then, the Special Branch police brought two cases against him for being a member of an unlawful association and for treason. Almost immediately after District Judge (3) Hla Win handed down guilty verdicts on March 13, the president issued an order pardoning Ngyein Maung and releasing him.
Although the order to release Ngyein Maung may have been politically expedient, since the government is currently in negotiations with the KNU, it made a mockery out of the legal process. Even as the cases were going to court officials reportedly informed the defendant that they would rush his case through as quickly as possible so that the president could issue the pardon and let him out. The trial was nothing more than a pantomime, one in which barely any pretence was made of legality: the charge of treason was brought without the president’s sanction, as required by law; and, the two separate cases were heard simultaneously, with the single testimonies of police officers serving as evidence for both, which is illegal and in complete violation of criminal procedure.
Some attempts by the trial judge to paper over this legality with remarks that a decision was made to run the case this way in order to expedite it only make the whole thing look worse. By this reasoning, every accused facing multiple cases in Burma’s courts should be tried accordingly. They also highlighted the obvious fact, that the court in Ngyein Maung’s case was functioning exactly as it would have done under direct military dictatorship of prior years: following the instructions of executive officers, rather than the contents of law, only now it was speeding the case to its conclusion so as to release the accused, whereas in previous years it would have been so as to send him promptly to a remote prison.
The cases of Tin Maung Swe and Ngyein Maung together speak to two legacies of protracted military authoritarianism on the legal system in Burma: its utter degradation and corruption, its reduction to an apparatus for the trading in justice by its personnel; and, its utter politicisation and partisanship, its reduction to an apparatus for delivery of orders from the executive.
The Asian Human Rights Commission has for almost a decade now been working on these issues intensively, and has consistently drawn attention to the fact that a major obstacle to the protection of human rights in Burma is the institutionalisation in the courts, police and prosecution system of practices developed and refined over decades of dictatorship. As political, economic and social conditions have begun to change under the new semi-elected legislature, what has become increasingly obvious is that the institutions showing the greatest resistance to change are those of the judiciary and law enforcement. Within the last year, a growing number of organisations and concerned individuals working in a range of fields have chorused calls to make judicial and legal reform a top priority.
Although these calls are very welcome, and although the growing interest of people and agencies from a variety of backgrounds in the work of the legal system is a prerequisite for the major reform that the system requires, much of the current discussion lacks reflection. What is little acknowledged in all of this, but what is self evident from cases passing through the courts like those of Ko Tin Maung Swe and Mahn Ngyein Maung, is that not only are these institutions resistant to change, but also they are not really being encouraged to change as some government officials and their authorised or proxy spokesmen would have us believe. Instead, the current administration is continuing to encourage or enable most of the same types of cynical manipulation of the legal system as its predecessors.
The legacy of judicial corruption is today in the foreground of media and public debate, but the anti-corruption rhetoric that we hear is essentially a continuation of the same type of rhetoric that successive military and military-backed regimes iterated for decades. Nor are the proposals that have been made in the last year to deal with corruption anything new. Most blame and attention is being placed on judges who take bribes, rather than on the systemic features of corruption. While judges are scandalized, the participation of all parties in the legal process in the negotiations and trade in justice, including arresting police, investigating officers, station clerks, court clerks, court brokers, prosecutors, bailiffs, bureaucrats and many others in addition to the judges, and how these people network and negotiate through the offices of the system attracts inadequate attention. The specialised trade in which they engage has evolved since the colonial period, and has become extremely refined in recent decades, to the extent that it has become a parallel system for the trade of justice, fully integrated into the formal system on which it depends for its existence. Simply focusing on judges and proposing to introduce more sanctions to deal with their misdeeds will do nothing to resolve this problem, and will only make matters worse by further undermining the country’s already emasculated judiciary.
Similarly, the continued making of the courts beholden to executive orders in political or “policy” cases does nothing to strengthen the judicial branch as the new government claims that it is trying to do, and instead only ensures the continuance of long-established practices. That at present the courts acting on executive instructions are working promptly to have people in some cases released rather than imprisoned is a reflection of changed political priorities, not changed behavioural patterns. The courts should not be misunderstood as cooperating in enabling political change. They are merely continuing to follow instructions from the executive, as they have been doing for the last half-century. Likewise, those persons in the executive issuing orders to see cases processed and enable the release of people who in the past would have been imprisoned are not thinking about the legal system in a qualitatively different way, only changing the direction of their thinking about how they can use the courts to serve policy oriented goals. In short, the extant mentalities and practices of long-term authoritarianism have to date been fully recycled under the new administration.
The continued cynical manipulation of the courts in Burma, be it for financial gain or political expediency, prefigures the continuation of authoritarian tendencies, large and small, well into the future. It prefigures the continuation of practices established and mastered over successive periods of dictatorship, irrespective in the short term of electoral gains made to progressive political forces, like those that many people are rightly hoping for in the by-elections of April. It is unlikely that anyone who will be elected next week will have any illusions about that fact.
People are right to be concerned that above all, it is the legal system that is going to impede the possibilities for political and social progress in Burma. But we ought not fool ourselves into thinking that the problems of the legal system are to be solved merely by electoral politics or by tinkering with those bits and pieces of the system that seem most at odds with popular aspirations. The problems of Burma’s legal system are products of wider institutional arrangements of which the system is a part. More creative and wide-ranging thinking and debate is required about what can be done to address the systemic obstacles to the rule of law and human rights posed by this system. In fact, the discussion of what needs to be done about this system has not yet begun in earnest.