BURMA: A litany of abuses–the torture and trial of Phyo Wai Aung 

On Tuesday, May 8, a judge in Rangoon will read the verdicts in four cases brought against a young engineer, Phyo Wai Aung, for alleged involvement in a bombing attack of 15 April 2010 that killed 10 people, seriously wounded 46 and injured 27 others. The trial started on 30 June 2010. Until the end of 2011, the court heard only prosecution witnesses, after which it allowed the defendant a few short days to give his side of the story before closing the hearings, the outcome of which it must now rule upon.

The trial of Phyo Wai Aung began when Burma was still under direct military dictatorship. In the time since, many important social and political changes have occurred in his country. However, the hearings have plodded along inside a closed court at the central jail, seemingly oblivious to the changes outside. Attempts by the defendant’s lawyers to have the cases reviewed by higher courts and by other relevant agencies have failed. And so, after a patently flawed and unjust trial, it now falls to the court to deliver its findings.

The Asian Human Rights Commission has followed the cased closely for almost two years and has set up a webpage that contains extensive details and documentation tracking the arrest, illegal detention and torture, and trial of Phyo Wai Aung. In this final statement on the cases before the verdict, we review some of the most glaring abuses of human rights and violations of domestic law, and offer some observations on their implications for any envisaged reform of the judicial and policing systems in Burma.

Of the litany of violations and abuses, we have reduced some of the most grievous to ten categories.

1. Illegal arrest

A group of plain-clothed officials came to arrest Phyo Wai Aung at his residence late at night on 22 April 2010, a week after the bombing. They did not properly identify themselves. They did not have an arrest warrant. They said that he would have to go with them for “a short time”. They did not take him to a judge or to a regular police station. They did not lodge any other documentation with which to initiate a criminal case or detain the accused on that date. Instead, they took him to the Aungthapyay interrogation centre, where they kept him in illegal custody and tortured him.

2. Illegal detention

The Special Branch police held Phyo Wai Aung at Aungthapyay for eleven days straight, of which for the first six days and six nights they tortured him constantly to confess to involvement in the bombing. They testified in the trial that on 23 April 2010 they obtained a detention order from the Bahan Township Court. However, no such order was ever submitted as evidence. On the contrary, Police Captain Win Maung admitted in court that they had detained Phyo Wai Aung at Aungthapyay for six days consecutively. He could not state on what day, at what time or through which police officers such an order was obtained from the court in Bahan. Even if such a remand order were issued, it would be contrary to law, because under section 167 of the Criminal Procedure Code, police must obtain the order from the nearest court. The nearest court to Aungthapyay is not Bahan. In fact, three or four courts are closer to Aungthapyay than Bahan. The police did not explain in the trial why they would bother to drive across a number of townships to get such an order. For his part, the defendant denies ever being taken to get such an order, which again means that even if the police got something from a judge it was not a lawful order.

3. Torture 

The Special Branch police for six days assaulted Phyo Wai Aung and forced him into stress positions for hours on end to have him confess to involvement in the bombing. They stripped him and burned his genitalia with lit newspaper, and dripped hot wax onto them. During this time neither his family nor lawyer could contact him, and he was not fed or allowed to change his clothes. The police variously threatened Phyo Wai Aung that if he died in custody it was nothing to them, that if he did not confess they would make him an accused, and that if he confessed they would make it easy for him; that he would not go to jail, or would go only go for a short time. Although Phyo Wai Aung named some of the officers responsible for his torture and forced confession in court, and although Police Captain Win Maung also named the officers who interrogated the defendant, they were not called or examined.

4. Illegally obtained confession

Police Captain Win Maung testified in court that Phyo Wai Aung confessed after six days of interrogation. According to law, a defendant who says he wants to confess should be taken promptly to a judge. Therefore, the police should have taken the defendant to court on 27 April 2010. However, they did not take him until 3 May 2010, once they had coached him on what to say. The judge taking the confession, Judge Win Swe, failed to do his basic duties. He did not ask the accused how long he had been held in police custody, or check if the custody was lawful. He did not warn him that he was not under any obligation to confess. He did not check the body of the accused for evidence of torture. He did not fully record the details of two witnesses to the confession, who may in fact have been police officers dressed in plain clothes. Furthermore, the judge recorded on the confession that all questions and answers had been written in full, but when he testified in the trial, he admitted that he had only recorded a summary of what the accused had said, making both the manner of its recording and its contents unreliable.

5. Closed trial

The Supreme Court ordered that the trial be held at the central prison. The defence requested, but was not given, a copy of the order. Not only was the trial not held in a public location but the family of the defendant also were for the first 14 months of the trial refused entry to the courtroom. The trial judge refused to take responsibility for who was or was not allowed access to the court, and attempts by the defence attorney to have his refusal to take responsibility overruled in a higher court were unsuccessful. Later the judge was rotated. Altogether, four judges heard the trial. Phyo Wai Aung’s lawyer twice applied for recommencement of the trial with new judges, but his applications failed. At least one of the judges made irrelevant and prejudicial comments towards the accused, and did not sanction police who insulted and intimidated him in the closed court.

6. Fabricated evidence

The police submitted highly suspect or blatantly fabricated evidence. Among it, they submitted an immigration travel permit that supposedly shows that the accused went to Mae Sot, on the border of Thailand and Burma on 11 May 2010: in other words, eight days after the defendant gave his forced confession, and almost three weeks after the police had arrested him. Even the photograph on the travel permit is an obvious fabrication: the immigration officer who testified in court said that the photograph had been taken in Myawaddy, but when asked said that the photographs of persons for border crossing passes were taken on a blue background. The photograph of the defendant has a green background. According to Phyo Wai Aung, the Special Branch police took the photo in Aungthapyay after his arrest. The police also submitted a list of supposed telephone calls between the mobile phone of the defendant and the other accused. But the list was not taken directly from the phone database. Instead, it was on a computer spreadsheet, which anybody could make up.

7. Contradictory evidence

The chief of police, Brigadier General Khin Yi, said in a press conference a few days after Phyo Wai Aung’s forced confession that the police had found one of the terrorists responsible for the April 2010 bombing. The prosecutor submitted the news reports as part of the evidence. However, on at least 15 points the contents of the press conference as reported in the media were incorrect: police officers themselves admitted to the incorrect contents of the press conference in court. Furthermore, the police submitted a map of the scene of the crime, with distances recorded between the sites of three explosions, but another map they submitted contained different distances. Photographs of the locations of the incident site also were inconsistent, as were the testimonies of police officers on a variety of specific facts.

8. Omitted evidence

The police pressured a business associate of Phyo Wai Aung who could provide him with an alibi to give a statement before the trial began; however, no details of the pre-trial statement, which was extremely important to the defence case, were given to the court. The business associate also gave the police receipts for materials that he and the defendant had purchased on the day of the incident, the details of which are consistent with Phyo Wai Aung’s testimony that he had been working on a job renovating a supermarket at the time of bombing; however, the police likewise did not submit these records to the court.

9. Inadmissible evidence

Not only did the court not receive evidence for the defence, but it also allowed inadmissible evidence for the prosecution. Police witnesses testified about statements that the accused made when in custody. These statements are inadmissible as evidence against the accused; however, when the defence attorney tried to have them struck from the record the court overruled him. Hearsay statements by police officers were also recorded in evidence despite the efforts of the defence to have them removed. And according to the Criminal Procedure Code, whereas witnesses can under certain circumstances refer to notes but cannot read verbatim from prepared statements, Police Captain Win Maung in his testimony read directly from start to finish off around 10 A4 pages, and from a notepad of around 80 pages.

10. Denial of right to defence

When Phyo Wai Aung’s lawyer came to meet him in prison to prepare for the trial, Special Branch police officers listened and recorded their discussion. When the defendant gave the names and details of police officers who had tortured him, a police inspector stopped the lawyer from recording details. Later, a Special Branch police officer masqueraded as a prison officer for the same purpose of listening to the conversations. The prison officers also limited the lawyer’s visits to his client to one per month. In trial, the presiding judge curtailed the cross-examination of two police witnesses. The court also refused to allow the defence access to, and copies of, at least 14 documentary records submitted as evidence by the police. Furthermore, after over a year of hearings from more than 60 prosecution witnesses, the judge allowed the defendant only six days to testify–ironically, the same number of days that he had been tortured to give a confession. The defendant after six days had not had an opportunity to rebut the contents of many of the prosecution witnesses, and the curtailment of his testimony after months and months of witnesses for the prosecution constitutes not only a violation of his legal rights but also yet another instance of his brutalization by members of Burma’s justice system.

And so the cases arrive at the date of judgement. Needless to say, from a legal perspective hardly any grounds remain for the court even to be considering the charges against Phyo Wai Aung, let alone for a guilty verdict. Whether or not from a political perspective the court is confident enough to acquit on the merits of the case remains to be seen. However, the Asian Human Rights Commission hopes that the judge will not set up the case for the type of charade seen in some other cases in recent months, where accused persons have been convicted and then given clemency; and also not play a game of convicting the accused and passing the case up to higher courts for a reduction of sentence to cover time already served, in the manner of some other cases.

The litany of abuses in the cases brought against Phyo Wai Aung raises many questions about prospects for reform of Burma’s judiciary and policing. Among the top priorities for both the army-established ruling party and the National League for Democracy, which now has its members in the legislature, is legal reform. Although the aspiration for reform is well and good, the much-welcomed political transformation in Burma over the last year has not been accompanied by wider institutional transformation. Not only are abusive practices of police, prosecutors and judges of the sort seen in this case deeply entrenched and systemic, but the persons who engage in these practices are everywhere a part of the country’s judicial and administrative bodies. Many of these people are habituated in the use of illegal arrest and detention, torture, forced confession, fabrication of evidence, and botching of trial procedures, and few if any of them will be leaving their positions any time soon. Fewer still will seriously expect to be held more accountable for their behaviour tomorrow than they were yesterday.

The institutional embedding of people habituated in authoritarian tendencies is in certain respects a much larger problem for Burma than the political embedding of people with authoritarian tendencies at the top. We can ill afford to underestimate the extent to which habits of half a century of military or military-backed rule have led to the establishment of what are in fact shadow systems and processes for the arrest, trial and imprisonment of accused persons like Phyo Wai Aung. The cases brought against Phyo Wai Aung, which have continued throughout this time of social and political change, are an abject lesson of these processes at work. The Asian Human Rights Commission encourages everyone interested in legal reform in Burma to study these cases carefully, so that we may at least say that we have learned something from them after all.

(Visit the AHRC webpage on the cases brought against Phyo Wai Aung at: http://www.humanrights.asia/campaigns/phyo-wai-aung.)